Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Report stage (Hansard - continued): House of Lords
Monday 11th December 2017 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

9: Clause 9, page 6, line 5, leave out paragraphs (a) and (b) and insert—
“(a) amend Schedule 1 —(i) by adding or varying conditions or safeguards, and(ii) by omitting conditions or safeguards added by regulations under this section, and(b) consequentially amend this section.”

[Baroness Chisholm of Owlpen (Con)]

My Lords, before I launch myself into the detail of these many amendments, I will express our thanks and gratitude for the detailed report of the Delegated Powers and Regulatory Reform Committee. We are also grateful for the extensive and informative discussions in Committee, and we have reflected on the views expressed by all noble Lords during the debates. We have carefully and comprehensively considered each of the committee’s recommendations, and none of our decisions have been reached lightly. A theme that noble Lords have heard me express previously is the extraordinary pace of change in the digital and data economy. I am very conscious that the Bill needs to provide a framework for the constant evolutions and developments in how we use and apply data. It must support rather than stifle innovation and growth and, primarily for this reason, in some areas we have deviated from the committee’s full recommendations.

I will speak to the key points. In its report, the committee raised concerns about the Henry VIII powers in Clauses 9(6), 33(6) and 84(3), which enable the Government to make regulations to “add to, vary or omit” the processing conditions and safeguards for sensitive data set out in Schedules 1, 8 and 10 respectively. Amendments 9, 90, and 99 respond to these concerns and narrow the regulation-making powers in these clauses. Amendment 9 removes the Government’s power to omit processing conditions and safeguards in Schedule 1. Amendments 90 and 99 remove the Government’s ability to vary or omit processing conditions in Schedules 8 and 10 respectively. We reflected at length as to whether we could go further than this but, on balance, considered it necessary to maintain the powers to add new processing conditions and to vary those in Schedule 1.

Many of these powers are not new. The 1998 Act already provides a power to add to the conditions for sensitive processing. In addition, many of the provisions in Schedule 1 in respect of which these powers will apply are currently set out in secondary legislation. This means that they can currently be added to, varied or omitted through other secondary legislation. Our experience under the 1998 Act and, indeed, in Committee, has highlighted the frequency with which scenarios can arise which require new processing conditions for sensitive data. Accepting the Committee’s recommendations in full would leave the Government unable to accommodate developments in data processing and the changing requirements of certain sectors. This in turn could render the UK at a disadvantage internationally if, for example, we were unable to make appropriate future provision for sectors, including those such as insurance, where the UK is a world leader, to reflect advances and changes in their approach to data processing.

The committee also raised concerns about Clause 15 of the Bill, which enables the Government by regulation to add to, vary or repeal the exemptions from certain specified data protection principles and data subject rights set out in Schedules 2, 3 and 4. Clause 111 contains a similar power to add, vary or repeal the list of exemptions in Schedule 11. The Government listened carefully to the debate in Committee, where the noble Lords, Lord Stevenson and Lord McNally, recognised the challenge of future-proofing the legislation to take account of changing technology. The noble Lord, Lord Stevenson, further suggested that,

“the most egregious issue here is when the Government seek to omit legislation which has been passed as primary legislation by secondary legislation”.—[Official Report, 6/11/17; col. 1639.]

I am hopeful that our amendments will set the noble Lord’s mind at rest.

Government Amendments 67 and 68 will remove the Government’s power in Clause 15 to omit provisions in Schedules 2, 3, and 4. It also removes Clause 15(1)(d) in its entirety. Amendment 103 removes the corresponding power in Clause 111(2) to vary or omit the existing provisions in Schedule 11. I am aware that there are some who would like us to go further than this, but it would not be a good idea for a number of reasons. First, a number of the provisions in Schedules 2 to 4 have been added to the Bill to address specific requirements arising from the new regime and have not yet been tested in operation. Others have been carried over from secondary legislation, where they can at present be added to, varied or removed. The Government therefore consider it prudent to retain the ability to amend Schedules 2 to 4 if it proves necessary. There is also a technical issue here. Schedules 3 and 4 contain a large number of references to subordinate legislation. The power to make and amend the instruments referred to does not always include the power to make consequential amendments to primary legislation. This provides a further, technical reason to retain the power in Clause 15 to vary these provisions.

Government Amendment 71 provides that any regulations made under Clause 17 will now be subject to the affirmative rather than negative resolution procedure. In cases of urgency, there is provision for the “made affirmative” procedure to be used if accompanied by an urgency statement. There is precedent for such an approach; for example, in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Amendments 168, 169, 170 and 184 make consequential provision later in the Bill.

I turn now turn to Amendments 130, 133, 134 and 136, which respond to the Committee’s concerns that the powers in Clauses 142 and 148 were too broad and gave the Government unlimited powers to determine types of additional failure that could attract the Information Commissioner’s enforcement powers, including unlimited penalties. Clearly, this was never the Government’s intention, and these amendments make it clear that any additional failures must be failures to comply with data protection legislation. They clarify also that the regulations making provision about the penalty for an additional failure will provide for the penalty to be either the standard maximum amount or the higher maximum amount referred to in Clause 150.

Amendment 144 provides that the Information Commissioner’s guidance about regulatory action will be subject to the negative resolution procedure when first produced. Generally, the Government believe that guidance of this kind should not be subject to parliamentary procedure. However, exceptionally in this instance, and in recognition of the large and ever-growing number of organisations for which this guidance will be relevant, on reflection the Government agree with the Committee that the negative resolution procedure would be appropriate. Amendments 139, 140, 141, 142 and 143 make consequential provision to ensure that the relevant clause functions as intended.

Amendment 166 reflects the concerns raised by noble Lords in Committee that regulations made under the Bill should be subject to consultation, not only with the Information Commissioner but also with consumer organisations and others who represent data subjects. Accordingly, we are including a requirement in Clause 169 that when the Secretary of State makes regulations under the Bill, she must consult “such other persons” as she considers appropriate. This will apply to all regulations save for those listed in new subsection (2A). We have also tabled consequential Amendments 126, 131, 135 and 138 to remove the equivalent requirement from Clauses 133(1), 142(9), 148(6) and 152(3) to avoid unnecessary duplication in the light of the new general requirement in Clause 169.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of overwhelmingly government amendments seeks to address issues raised by the Delegated Powers and Regulatory Reform Committee in its sixth report, published on 24 October this year, the only addition being Amendments 10 and 69 in the names of the noble Lords, Lord Clement-Jones and Lord Paddick. As we have heard, the Delegated Powers and Regulatory Reform Committee is widely respected in the House and I am pleased that the government amendments address the concerns raised by the committee. But as we have heard from the noble Baroness, Lady Chisholm of Owlpen, those concerns have not been accepted in full, and she has given the reasons for that.

I was particularly pleased to see government Amendments 9, 67 and 68, among others, which would limit the powers to amend the processing conditions and exemptions found in various schedules to the Bill. I am equally pleased to see the Government act in respect of the powers to make regulations. This will be done using the affirmative rather the negative procedure, starting with government Amendment 71. It gives Parliament the right level of scrutiny and the ability to reject or express regret about a particular decision, and allows for a proper level of scrutiny, a debate having to take place in both Houses.

In respect of Clauses 9 and 15, Amendments 10 and 69 seek to change the scrutiny procedure from the affirmative, as presently in the Bill, to the super-affirmative. I am not convinced that this is necessary as we have the tools at our disposal to scrutinise the proposals using the affirmative procedure. Starting with government Amendment 130, we have a series of amendments relating to the enforcement powers of the ICO, and again these are to be welcomed.

As I say, in general I welcome the government amendments and the explanation given by the noble Baroness.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for those kind words. The noble Lord, Lord Clement-Jones, asked who would be consulted. While it is clearly impossible to be specific, the Secretary of State might consider it appropriate to consult, for example, representatives of data subjects or trade bodies, depending on the circumstances and regulations in question. I hope that that answers his question.

On why it is permissible to admit provisions added by regulations, we believe it is qualitatively different from admitting those added during the extensive parliamentary debate and scrutiny afforded to primary legislation. As I said, many other powers are not new. The 1998 Act already provides a power to add to conditions for sensitive processing. We feel it is prudent to retain the ability to amend Schedules 2 to 4 if necessary. As I said, this is a fast-moving area. We want to make sure that the Bill provides a framework for the constant evolution and developments in how we use and apply data, but it must be supportive rather than stifle innovation and growth.

[Lord Clement-Jones]

With the greatest respect, the point I was making was whether the right to vary was not omission by the backdoor. Perhaps I was not clear enough.

[Baroness Chisholm of Owlpen]

No, we do not believe it is omission by the backdoor.

Amendment 9 agreed.

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[Baroness Hamwee (LD)]

My Lords, from these Benches I support the noble and learned Lord, who is absolutely the right person to pursue this matter. If I might simply add to what he said, it is important that we bear in mind that in the same way as legal professional privilege is the privilege of the client, these provisions would be for the benefit of the public, the running of good democracy, good scrutiny and holding the Government to account. It is not a personal benefit that is proposed here and I hope—I trust, because this is very important—that the Government can find a way through this. I look forward to hearing from them, as the noble and learned Lord said, early in the new year.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble and learned Lord, Lord Brown, for raising these amendments and for the words of the noble Baroness, Lady Hamwee. His amendments address concerns about the interaction of the Bill with parliamentary privilege. I agree wholeheartedly with him that parliamentary privilege should continue to be safeguarded and maintained for future generations, as it has been for centuries past. As I said in Committee, the Government’s view is that the Bill contains adequate protections to ensure that this is the case. However, we recognise the concerns that, in some areas, these protections could be enhanced and clarified, and we will bring forward amendments at Third Reading to address some of the points that the noble and learned Lord has raised in his amendments.

With that in mind, I will now turn briefly to the amendments themselves, starting with Amendments 16, 17 and 185. The Government recognise the concerns raised in these amendments about the way the conditions for processing sensitive personal data apply in respect of parliamentary proceedings, and liability under Clause 193(5). I am happy to reassure noble Lords that the Government intend to bring forward amendments to address these points at Third Reading.

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[Lord Stevenson of Balmacara (Lab)]

Before the Minister sits down, I put it to her that, in the considerations that will take place between now and the return in January, one thing that changes between 1998 and today in terms of the Act is something we have not looked at specifically, although it comes up in the Bill. It is the need to ring-fence the Information Commissioner from any involvement with Parliament or the Government. She is answerable to Parliament, but she should not be in that sense exposed to considerations that might adversely affect her. I hope that might be taken into account as well.

[Baroness Chisholm of Owlpen]

I agree with the noble Lord, and we will take that into account.

[Lord Brown of Eaton-under-Heywood]

My Lords, I am most grateful for the reassurance given to us by the Minister. On the basis that all these matters will be brought back in some shape or form at Third Reading, I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, we do not need to think very hard about this issue in terms of providing evidence that might be helpful to Ministers given that at Oral Questions today, at which I think the Minister and the noble Baroness were present, a case was raised by a Peer on our side of the House, in a Question to the DWP Minister, which verged on picking up a particular case. It was very useful in terms of making a broader political point. Are we saying that that will not be possible in future, as it raises significant questions? Secondly, as the noble Baroness, Lady Hamwee, said, irrespective of whether we have been an MP or a Member of the other House, we receive letters and emails almost daily offering individual data and information which, if we used it, would, I think, fall into the category mentioned by the noble and learned Lord.

At the weekend, I had the privilege of seeing the RSC perform the “Imperium” plays, adapted from the books of Robert Harris. These deal with a well-known orator, Cicero. Noble Lords will not be surprised to learn that he recommends to his clients—at one stage, he gives a tutorial to fellow citizens of Rome who intend to seek high office—that it is always helpful, and always catches the attention of an audience, if you give the specifics of an individual case and rise from that to the general. So if there is a possibility of placing a constraint on the ability of Members of this House to raise cases in an effort to improve the quality of life for citizens to whom we owe a duty of care and responsibility, that must be wrong. I hope that the Minister will take this away and work with the noble and learned Lord, Lord Brown, to bring something forward at Third Reading.

[Baroness Chisholm of Owlpen]

My Lords, Amendments 28 and 29 create a new processing condition for Members of this House. The Government’s view is that the provisions in paragraphs 19 and 21 of Schedule 1 are intended to reflect the unique and special nature of the relationship between an elected representative and their constituent.

Like the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Brown, I am very aware of the important and valuable work that many noble Lords carry out on behalf of members of the public, advocating for their rights, taking up their cases with government departments and representing their interests in any number of scenarios. However, this relationship between a Peer and a member of the public is of a different nature and order from that conferred on an elected representative by their constituents. Elected representatives have particular rights and duties to act on behalf of the citizens they represent. The Government therefore consider it appropriate for them to be able to deal with urgent situations where they could not reasonably be expected to obtain consent; for example, in the case of an individual facing imminent deportation. There is no such need for Peers to be exempted from the provisions on consent. I stress again that nothing in the Bill or the GDPR prevents Peers undertaking casework if they first obtain the consent of the individual concerned.

I emphasise that these provisions are not new. The position under the 1998 Act is very similar and, in answer to the point made by the noble Lord, Lord Stevenson, it has not prevented Peers who are interested in undertaking casework doing so. Indeed, I have not found difficulty in this respect; I have just obtained consent first.

I hope I have reassured the noble and learned Lord that the Government understand the concerns raised, and that in this instance he will withdraw his amendment.

[Lord Brown of Eaton-under-Heywood]

I confess to being disappointed by the Minister’s response to this. I dealt with the fact that things have changed over the 15 years since the 2002 order. Of course there will continue to be circumstances in which it is possible to get, without inhibiting problems, the express consent of the person concerned. However, it will not always be possible, and to that extent it will inhibit the future ability of Members to discharge a function they have been discharging. Of course I will not divide the House at this stage; nevertheless, I urge the Government to reread the arguments and submissions that the noble Baroness and I have advanced today and see whether they cannot bring themselves to recognise that there is a substantial point here. Although there is a natural reluctance to treat us as elected Members, they should for this limited purpose do so; that is justified in the narrow circumstances in which this point arises.