Data Protection Bill [HL]

Baroness Hamwee Excerpts

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

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this group of amendments in my name, prompted by House officials, covers a number of issues concerning parliamentary privilege. The Bill in its present form contains some exemptions to its application to Parliament, but these are considered rather too narrow in scope. The group relates to four areas which have been raised by officials—that is, counsel and clerks of both Houses—as giving rise to concerns about how the Bill as drafted risks infringing parliamentary privilege. These concerns have been discussed extensively with the Bill team and the Leader’s office at official level, and drawn to the attention of the Senior Deputy Speaker, who is of course chairman of the Committee for Privileges and Conduct of this House. I say at once that these discussions have been most helpful and constructive. I pay tribute to the Bill team for its co-operation throughout.

Happily, the Bill team is now, as I understand it and as I expect the Minister shortly to confirm, satisfied that amendments to the Bill in all four areas of concern are appropriate, so that those will be forthcoming before Third Reading in the new year. I recognise and accept that those amendments may not follow the precise wording suggested in the present proposals but, provided they address the substance of these various specific concerns, we shall obviously be disposed to accept them.

In these circumstances, and given that we shall obviously not divide the House at this stage, it is unnecessary to outline the detailed nature of each of these proposed amendments. It is, I hope, sufficient to indicate that they include, for example, meeting concerns lest the Information Commissioner take enforcement action against Members or the corporate officers of either House—here, the Clerk of the Parliaments—in respect of the processing of personal data in parliamentary proceedings. Such action could lead to very substantial administrative penalties amounting to millions of pounds. There are concerns, too, about the liability of both corporate officers to prosecution for certain specified offences for things done on behalf of the two Houses of Parliament. I hope that that is sufficient, and at this stage I beg to move Amendment 16 and ask that the eight other amendments be accepted.

[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 Kennedy of Southwark]

My Lords, I tabled this amendment to keep the issue that I raised in Committee on the agenda. I spoke about it at some length in Committee. I think it is better determined by your Lordships’ House, rather than going off to the other place. I know the Minister has kindly agreed to a meeting. We have not had a chance to have it yet, but we will later this week.

I know that the noble Lord, Lord Hayward, who sits on the Government Benches, fully supports this issue being debated. He, like me, hopes it can be sorted out here by Third Reading, rather than going to the other place. The basic problem is that provisions in the Bill potentially conflict with legislation in respect of elections and other matters already on the statute book. I went through those in Committee. I am sure we do not want to pass legislation that conflicts with existing legislation, but we risk doing that here. That cannot be right. What political parties, campaigners and politicians need—and certainly what the regulators need—is crystal clear legislation and regulation that they can apply. To pass something that is in direct conflict with the Representation of the People Act would be unwise. We need to have our meeting later this week and I hope we can bring something back at Third Reading. These are important issues that we need to get right to ensure that all legislation is working together. I beg to move.

[Baroness Hamwee]

My Lords, I am very glad that the noble Lord is keeping this on the agenda. I had a note to ask what was happening about the meeting to which lots of people were invited at the previous stage. I do not believe that we have heard anything about it. This is not a whinge but a suggestion that it is important to discuss this very widely.

I find this paragraph in Schedule 1 very difficult. One of the criteria is that the processing is necessary for the purposes of political activities. I honestly find that really hard to understand. Necessary clearly means more than desirable, but you can campaign, which is one of the activities, without processing personal data. What does this mean in practice? I have a list of questions, by no means exhaustive, one of which comes from outside, asking what is meant by political opinion. That is not voting intention. Political opinion could mean a number of things across quite a wide spectrum. We heard at the previous stage that the Electoral Commission had not been involved in this, and a number of noble Lords urged that it should be. It did not respond when asked initially, but that does not mean it should be kept out of the picture altogether. After all, it will have to respond to quite a lot of what goes on. It might not be completely its bag, but it is certainly not a long way from it.

We support pinning down the detail of this. I do not actually agree with the noble Lord’s amendment as drafted, but I thank him for finding a mechanism to raise the issue again.

[Lord Ashton of Hyde]

I am grateful to the noble Lord, Lord Kennedy, for raising this issue, and to the noble Baroness for her comments. These issues are vital to our system of government, and we agree with that.

Amendment 27 seeks to expand the umbrella term “political activities” to include any additional activities determined to be appropriate by the Electoral Commission. Noble Lords will agree that engaging and interacting with the electorate is crucial in a democratic society, and we must therefore ensure that all activity to facilitate this is done in a lawful manner. Although paragraph 18(4) includes campaigning, fundraising, political surveys and case work as illustrative examples of political activities, it should not be taken to represent an exhaustive list.

Noble Lords will be aware that the Electoral Commission’s main areas of expertise concern the regulation of political funding and spending, and we are of the opinion that much, if not all the activities they regulate will be captured under the heading “political activity”. As I have just set out, fundraising is included as an illustrative example, which ought to provide some reassurance on this point. Moreover, the greater the number of activities denoted by the Electoral Commission, the less likely it is that any other activity would be considered by a court to be a political activity by dint of its omission. The commission, a body which as far as I am aware claims no expertise in data protection matters, would find itself in an endless spiral of denoting new activities as being permissible under the GDPR. Nevertheless, in recognition of the importance of such processing to the democratic process, the Government are continuing to consider the broader issues at stake and may well return to them in the second House. In this vein, the noble Lord made a number of good points, and I look forward to meeting him with the Minister for Digital, my right honourable friend Matt Hancock, on Thursday this week to discuss the matter in more detail than the parameters of this debate allow. We will see what the noble Lord feels about the timing of that after the meeting.

As for the noble Baroness, Lady Hamwee, we talked about having bigger meetings, and I am sure the time will come. This is just a preliminary meeting to decide on timings and to give the noble Lord, Lord Kennedy, the chance to discuss this with the Minister for Digital. I envisage that further meetings will include the noble Baroness.

I appreciate the sentiment behind the noble Lord’s amendment. In the light of our forthcoming discussions, I hope he feels able to withdraw it.

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Finally, unlike the earlier group of amendments concerning parliamentary privilege, this group relates exclusively to the work of your Lordships’ House. Although the Bill eventually goes from here to the House of Commons, that House will perhaps have little interest in this issue—so, par excellence, the question should be considered here. Even if the Minister will not give ground today—I recognise that he may be under clear instructions not to—I hope he will recognise that there is sufficient force and merit in these arguments to agree at least to have another look at this issue before Third Reading. In that case, I suspect that we will not be pushing it further at this stage.

[Baroness Hamwee]

My Lords, I have put my name to this amendment. I stumbled on the omission of Members of this House during debate in Committee, when I asked what I thought was an innocent question. I was asked to appear on the BBC’s “Question Time” after the list of Peers of which I was one was announced but before I actually arrived here. It was a fairly difficult occasion, which I remembered when I was thinking about this issue at lunchtime today. When I referred, during the discussion, to Members of Parliament, Nicholas Ridley said, “You are a Member of Parliament”. We are all Members of Parliament. We happen to be Members of the House of Lords; those who are normally called MPs are Members of the House of Commons. I regard myself as being in a representative position, even though I am not elected.

I disagree with one comment of the noble and learned Lord, which was about the amount of casework that I do. I am so conscious of the problems of getting it wrong, particularly in the area of immigration, that I try not to do that work. However, it is notable how the number of requests to Peers to intervene in individual cases has grown over the last few years. I suppose that reflects the fact that MPs are taking on more and more of what a few years ago one might have called social work. There are not the same demarcation lines as perhaps there used to be.

The casework, among other things, informs our general response to policy issues and specific proposals put before us, so we cannot exclude ourselves from all this. Ten days or so ago, in response to a request to pursue a particular case, I made the point that the individual should approach her own MP. The answer came back, through an intermediary, “She’s an asylum seeker. She doesn’t have an MP. We’re looking for anyone who can help”.

In Committee, questions on this issue were asked round the House. I recall that the noble Lord, Lord Lucas, took up the point after I had asked a question. I am very grateful to the noble and learned Lord for pursuing this matter. I hope that the Minister will accept his suggestion that this should be considered further between now and Third Reading, and that it should be dealt with at this end. I hope that the Minister will this evening assure us that it will remain on the agenda and that we can return to it at the next stage of the Bill in this House.

[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.

[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.

[Baroness Hamwee]

Before the noble and learned Lord finishes, if the House permits me, I will raise something with the Minister. A number of individual cases are brought to us through other organisations, which may have the consent of the individuals. We would want to pursue a matter in the way the noble Lord, Lord Stevenson, just mentioned—I was not at Question Time today but I can imagine the kind of situation. It would add considerably to the difficulty of doing that if the consent obtained by the organisation was thought not to extend to a Peer taking up the matter. I do not know how we would deal with that. It would be a considerable barrier to our doing what I regard as our job.

[Lord Brown of Eaton-under-Heywood]

I am grateful to the noble Baroness, who puts forward a dimension to the problem that she is much more alive to than I am. However, there it is. I urge the Minister to reread these speeches and, in the meantime, I have no option but to beg leave to withdraw the amendment.