Data Protection Bill [HL]

Baroness Jay of Paddington Excerpts

2nd reading (Hansard): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Howe, and to recognise her expertise in discussing the issues around children’s protection. I share many of her ideas. I welcome the Bill, and echo other noble Lords in recognising that it has enormous significance and is very timely. I am grateful for the clear explanation of the EU Committee’s report, which showed the complexities of the continuing interrelationships between this country’s legislation and that of Europe and the way in which we will have to deal with that for many years to come.

At this stage, it is worth reminding ourselves—or at least reminding myself—that we are talking about so many areas of our society today and so many aspects of 21st century life which we are aware that not all of us understand. I know there are many experts in this field. I refer in particular to the noble Baroness, Lady Lane-Fox, who will speak after me, when I say that there are people who clearly understand all the implications of the wider digital economy. However, I put myself among the majority of the population when I say that, although I am aware of the vast number of ways in which the digital revolution impacts on and, perhaps somewhat frighteningly, dominates our everyday lives, it is almost impossible for most of us to know how and by whom our personal data is being collected, with whom it is shared and to whom it is probably sold. Therefore, robust protection of privacy and the ethical regulation of data are essential if we are to continue with our democratic principles.

My noble friend on the Front Bench, Lord Stevenson, has already referred to some of the gaps that he sees in this legislation; no doubt those will be referred to and returned to at a later stage. I am concerned that the way some of the Bill is drafted already suggests that we are once again moving into that area where the role of this House and the other place is diminished by so much secondary legislation being proposed. I do not apologise for raising yet again, as I have in previous debates, what I see as a paradox: so much of the support for Brexit depended on the restoration of parliamentary sovereignty to Westminster, yet when we come to look at the detail of some of the Bills to implement some of the implications of Brexit—particularly in this kind of complex area—we find that the presentation is often based on secondary legislation where the role of this House, particularly in scrutinising and revising, and that of the other place, is somewhat diminished. It seems an extraordinary paradox to me.

Noble Lords have already referred to Clause 15, which is particularly worrisome in this area. It would clearly permit alterations by the affirmative action procedure. It will be important, when we debate the detail of the Bill, to recognise that professional bodies are already mentioning that as a concern. As was mentioned briefly by a previous speaker—I think it was the noble Lord, Lord McNally—I draw the attention of the House to the British Medical Association having drawn particular attention to the potential problem of regulations being altered in this way. Noble Lords will be aware that the security of sensitive healthcare information is clearly essential to good medical practice. The BMA is now concerned that the centrally important trust in doctor/patient relationships may be threatened in future if changes in data sharing can be fast-tracked without proper scrutiny through the secondary legislation process. Again, the House will be aware that, as the law stands, healthcare information has special protection through the common-law duty of confidentiality. I hope it will be possible for the Government to assure the House, at the earliest opportunity, that the proposed regulatory powers will not be overridden in that way, and in particular that that crucial safeguard will continue to exist. It may be possible to give a general assurance on the general procedures on regulation.

I turn to some of the questions which arise from what I describe as general ignorance about the uses and abuses of personal data in the global digital economy. My noble friend Lord Puttnam, who is unavoidably away today—and who is a greater expert and far more authoritative in this field than me—wanted to contribute to the debate by suggesting some ways of improving the situation of so-called digital literacy by means of the Bill. With his permission, I will mention his proposals, which I am sure he will return to at the later stages. It is, of course, completely extraordinary to me that when my noble friend Lord Puttnam and I worked together in 2003 on the Communications Bill, that Act contained no reference to the internet. In the 14 years since, we have all become familiar with so many digital concepts: standardised algorithms, bots, big data and what is increasingly referred to as “data capitalism”. We are familiar with the words, but I am not sure that we all understand their implications for privacy and personal data.

It has been said this afternoon that national Governments now face the legal and technical challenge of trying to regulate international communication and information flows, which are largely controlled by a handful of American-based internet corporations. In this parliamentary Session, I have the privilege of sitting on your Lordships’ Select Committee on Political Polling and Digital Media. We are investigating the questions of accuracy and transparency thrown up by using internet data in politics. We are only beginning to uncover the complexities and threats that the new systems create. Again, in this context, in the last year we have all heard about so-called fake news and possibly even Kremlin-inspired online intervention in western democracies. Only yesterday, there were reports of operatives using individual Facebook accounts to generate support for President Trump; but is it possible to influence effectively, or control, any of that in the public interest? As a good democrat, the noble Lord, Lord McNally, remains optimistic, but I find it very hard to see how an individual Government can act legislatively to moderate the growing tsunami of online data exchange—and how through the law we can protect individuals from manipulation and exploitation.

A possible route that, optimistically, could influence behaviour and protect citizens from the most egregious breaches of their privacy is through public education. That is obviously a long-term project. Creating better-informed consumers who understand how their shared personal data may be used, and what may happen to data when it is passed on, would clearly be an advantage. That is important when we are talking—as the noble Baroness, Lady Howe, and other contributors did before me—about young people growing up with the internet. They are the greatest users of every type of social media but, although they may be technically adept, they are often the most ignorant about what they are signing up to or giving away when they use seductive sites or post so much information online.

I welcome the provision in the Bill that allows young people to remove content—the right to be forgotten. However, I share the concerns of the noble Baroness, Lady Howe, the right reverend Prelate and others about the age of consent being 13. As a grandmother, as they say, I would be very happy to see that age raised. As referred to by the right revered Prelate, who is not in his place, it is interesting that, when surveyed, 81% of the general public wanted to try to raise that age. I hope we will return to this issue at a later stage.

It is important to look at some of the fundamental issues about how we can achieve better public education in this field. Do we need to think again about how to achieve a digitally literate population in the true sense, which in turn could hopefully influence the attitudes and actions of the big tech companies and change the opinion of the world? That may be a more sensible way to proceed than continuing to make what may be vain attempts to regulate the ever-expanding web. The House will remember, as the noble Lord, Lord McNally, has already said, that in the original Communications Act 2003, Ofcom was given the specific duty of promoting “media literacy”. In that Act—perhaps I may quote from it—the duty is very broadly based. First, it is,

“to bring about, or to encourage others to bring about, a better public understanding of the nature and characteristics of material published by means of the electronic media”.

Secondly, it is,

“to bring about, or to encourage others to bring about, a better public awareness and understanding of the processes by which such material is selected, or made available, for publication by such means”.

However, since the passage of the Bill, Ofcom seems largely to have interpreted these responsibilities in rather a narrow and perhaps pragmatic way. For example, it has asked how we can ensure that the elderly population has appropriate access to digital technology and how internet drop-out areas, or areas where it is difficult to achieve broadband, can be improved?

My noble friend Lord Puttnam is therefore proposing that in Part 5 of the Bill, which covers the Information Commissioner, a wider duty be placed on the commissioner to act with Ofcom, and indeed with the Department for Education and the DCMS, on the use and abuse of personal data. He sees this as something that could be included by amendment in the “general functions” of the commissioner or established under a separate code of practice. He suggests that a code of practice could, for example, confer special responsibilities on the big technology giants to engage in the collaborative development of digital media skills. It does not seem naively optimistic to think that this type of statutory leverage could be influential. It could be a useful exercise of “soft power” to achieve more informed and responsible internet use by both providers and consumers. Effective and proper digital literacy is an approach that would avoid the continuing search for a national regulatory solution to some of the problems of the global digital economy—it may be long-term but it seems worth undertaking. I am sure my noble friend Lord Puttnam will table amendments in Committee.

I welcome the Government’s intention to update and strengthen a robust system of data protection. It is certainly an ambition that has recently been made more difficult both by corporately owned global technology giants which transcend the authority of national Governments and by the huge expansion of internet technology. I am glad that the Bill has started in this House, as I am sure it will, as always, be improved by your Lordships’ scrutiny and revision.

Data Protection Bill [HL]

Baroness Jay of Paddington Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, I, too, support my noble friend Lady Kidron. Last week, with her and my noble friend Lord Best, I was able to attend a briefing session with the right honourable Karen Bradley, the Secretary of State. I found that very helpful. We were looking at the Green Paper on internet safety published on 11 October. It is curious that we are here in Committee talking about some of the same issues when that significant consultation is being undertaken by the Government. I hope that when the noble Lord, Lord Ashton of Hyde, comes to reply to the debate, he will say something about how the Government intend to synchronise the discussion of and consultation on the Green Paper that is under way with the moving horse of legislation that is proceeding through your Lordships’ House.

During our discussions last week, my noble friend raised again the duty to protect. I agree with what the noble Lord, Lord Knight, just said about this providing an elegant way forward. I guess that many of us would want to turn the clock back if that were possible, but we recognise that it is not, and this may well be, therefore, a better way to proceed. It is certainly one to which the Government should be giving considerable attention.

While I am on my feet, perhaps I may remind the noble Lord, Lord Ashton, of the amendment that I moved with my noble and learned friend Lady Butler-Sloss during the debate in April on the digital legislation. I particularly draw his attention to col. 40 on 20 March and the remarks made by his right honourable friend the Minister of State for Digital in the other place on 26 April, when he described the question of prohibited material and definitions, which we had argued should be consistent across varying media platforms. They both said that this was unfinished business that would be returned to. I have studied the Green Paper but have not been able to find the solution to that unfinished business, and wonder whether it will be addressed as the legislation proceeds.

Perhaps I may also ask the Minister about the protection of minors. It has been stated again and again, by all noble Lords who have participated so far, including the noble Lord, Lord Storey, that the protection of children should be a paramount consideration at all times. The Minister may recall the case, which I raised with the Secretary of State and in your Lordships’ House, of some young people who had visited suicide sites. I was horrified to learn from the headmaster of a school in Lancashire, where I arrived to distribute prizes, that a child who had visited a suicide site had taken their own life only that morning. What further protections are being provided to require service providers, for whom self-regulation is clearly not enough, to do rather more about that question?

It has been said that parents do not have a chance in this situation; that is absolutely right. As my noble friend Lady Hollins said, young people spend a vast amount of time on the internet. Many parents do not understand how it works. It is therefore crucial that we do all we can to place pressure on the service providers. I remind the House of the advice that Aristotle gave parents. He said that only a bad parent would place their children in the hands of a foolish storyteller. I fear that many of us, maybe inadvertently and without knowing the full consequences of placing our children in the hands of the Twittersphere and the digital world, with all the information that pours into their minds on a massive scale, have placed them into bad hands. We need to do more to protect them. This is what my noble friend is trying to do and I commend her amendment to the House.

[Baroness Jay of Paddington (Lab)]

My Lords, I support the aim of these amendments, as do other noble Lords who have spoken. They were extraordinarily well introduced, given the scope of what they are intended to achieve. As I said at Second Reading, I do not have the same authority and technical background in the industry as many noble Lords who have taken part, particularly the noble Baroness, Lady Harding. However, I have a legitimate question for the noble Baroness. The Minister, who will have heard the general support around the House, will also be aware of this. However good the intentions of the amendments—and I support their aims—it is difficult to regulate in a world in which technical capacity is international. As the noble Baroness, Lady Harding, said, these matters are rather low on the agendas of the major, global corporations which are responsible for producing the technology, delivering the content and organising the platforms that children may be accessing, appropriately or not. It is legitimate to ask, as she did, whether what we say and how we regulate in this country can be a beacon. I think she said that this could be the beginning of a geographical spread of better regulation. It would be pointless to ignore the fact that we are dealing not with an internal issue of domestic regulation as we would be with terrestrial broadcasting, but with global corporations, most of them based on the west coast of the United States, which do not necessarily even agree with the aims of these amendments—which I very certainly do.

[Baroness Howe of Idlicote (CB)]

My Lords, the intention for a minimum level of design to help children and their parents, set out in Amendments 18, 19, and 155, is indeed laudable and provides an excellent opportunity for us to debate the role of the Information Commissioner. However, I am concerned that these amendments continue legal uncertainty in a number of ways. The revised Clause 8, introduced by Amendment 18, would uphold the age of 13 as the age of digital consent—but only when a website,

“meets the minimum standards of age-appropriate design as determined by the Commissioner”.

Similarly, Amendment 19 seeks to ensure that sites which children under 13 are likely to visit have a certain minimum design to help children and parents. Details for establishing those standards are in Amendments 155, 156 and 157.

My first concern is how a consumer—a child or parent—will know whether a website meets the minimum standards and therefore which age of consent applies. Secondly, what would happen were a site not to meet the minimum standards set by the Information Commissioner but still used 13 as the age for when a parent is no longer required to consent to the use of the child’s data?

--- Later in debate ---

[Lord Ashton of Hyde]

I cannot give the noble Lord chapter and verse on what the European bureaucrats were thinking when they produced the article, but age verification is not really the issue on this one, because it is extremely difficult to verify ages below 18 anyway. Although one can get a driving licence at 17, it is at the age of 18 when you can have a credit card. As I say, the issue here is not age verification—rather, it is about how, when we make things too onerous, that has the potential to drive people away on to other sites which take their responsibilities less seriously. That was the point I was trying to make.

[Baroness Jay of Paddington]

My Lords, the Minister was kind enough to respond to the point I sought to make about the extraterritorial nature of all this, which of course goes way beyond individual sites to corporate ownership, the issue that I am most concerned about. I am glad that the Government are having conversations with, or at least dealing with, what he describes as the most responsible players in this market. None the less, we are dealing with a global environment in which most countries, not just a few rogue countries, have a very different environment and understanding of the culture and nature of the regulation of broadcasting than we do in this country. We have had a very particular and sophisticated way of dealing with terrestrial broadcasting for several generations. The real problem lies in addressing how we can translate some of those values and regulatory formats into the global internet age.

[Lord Ashton of Hyde]

I take that point completely. So that I get it right, it would be best if I write to the noble Baroness about what we are doing. I am afraid that I cannot recall whether it is the G8, the G20 or whatever. Ownership is obviously a key point as well, so I will write to the noble Baroness on those points.

Data Protection Bill [HL]

Baroness Jay of Paddington Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 13th November 2017 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, before the Minister replies to my noble friend Lord Whitty, I want to emphasise the importance of his arguments and ask him to reflect again on what he said about the point made by the noble Baroness, Lady Hamwee, on the Electoral Commission’s involvement. Although, as the Minister said, he wrote in general terms to the commission—or it was asked to give evidence to the Government on the matter—that may have been around the time of the general election, when perhaps it was engaged in immediate problems. It is important that it be included in discussions on the broader issues, particularly the ones just raised by my noble friend Lord Whitty. Perhaps it would be worth the Government reflecting on attempting to draw it into the conversation now.

[Lord McNally (LD)]

It is easier for me to intervene now, so the Minister can answer everything in one go. In two small amendments, there is a massive issue that needs to be addressed with great seriousness. The Minister referred to the Information Commissioner’s study on the interrelationship between data and the political process. I wonder whether her findings will be available before the Bill becomes law, because that will have a great impact. The other thing we must learn, as the noble Lord, Lord Whitty, said, is that it is often wise to look across the Atlantic to find out what is coming to us. There is a massive problem coming down the road concerning how data are used during the political process. On the one hand, there is the issue, referred to by the noble Lord, Lord Kennedy, of political parties being mostly volunteers, trying their best to deal with complex laws. They must be protected as best they can. On the other side of the argument, there is a degree of sophistication in applying data to politics, which could become a threat to the democratic process. These are two small amendments, but they are an iceberg in terms of the problems that lie beneath them.