Data Protection Bill [HL]

Baroness Ludford Excerpts

Report: 1st sitting: House of Lords
Monday 11th December 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Minister for moving his amendment and for his concluding remarks, which I will return to. I welcome this amendment, and the implication it carries that the Government have listened to the discussions we have had in the last few weeks and have moved from their initial position.

I will speak to Amendment 2, which I am delighted has also been signed by the noble Baroness, Lady Ludford. I am sure that your Lordships’ House will recognise that, in bringing forward a revised draft, we have reflected very deeply on the points made by noble and noble and learned Lords in the debate on the original amendment moved in Committee. In addition to noble Lords who spoke on that occasion, I thank the academic and practising lawyers—as well as many in industry—who have contributed to our emerging thinking on this topic. Before it was submitted to the gruelling process that happens to all amendments when they go to the Public Bill Office, I sent an earlier draft of this amendment to many Members of this House who spoke in that earlier debate. I am grateful for the comments I have received.

It is unusual to have two amendments bearing on very similar points. It is an advantage to be able to see the conflicting, and often overlapping, thinking that has gone into this. It is clear to all who have read both and thought about them that, while we are not yet in full agreement, we are very close. Indeed, I venture to suggest that there is more that unites us on this issue than divides us. What do we agree on? We both recognise that the key data protection rights currently enjoyed by citizens in the UK crucially underpin any assessment of adequacy that might need to be made by the EU post Brexit. They are crucial for the future of our successful data-handling industry. We both want the key data protection rights currently enjoyed by citizens in the UK to continue once the Bill becomes law, while the GDPR is in force, and then after Brexit—if that happens. We agree that the key question to be determined is not the exact wording of one or other but whether it is necessary for these key rights, currently enjoyed by UK citizens through Article 8 of the EU Charter of Fundamental Rights, to be expressed clearly for all to see on the face of the Bill, or whether their existence in various parts of the Bill—and in the GDPR and its recitals—is sufficient.

By putting down their own amendment on this issue, the Government seem to agree that explicit references in the Bill will be helpful, for the reasons given above. We now need to get together to find a form of words which will achieve this aim and which we can both support. I therefore agree with the noble Lord that the right thing to do is for both sides to withdraw their amendments on this issue today and for the Minister to confirm—as he has done—that the matter is of sufficient importance to be brought back for further consideration at Third Reading. If he will agree to that, I will not move my amendment when it is called.

[Baroness Ludford (LD)]

My Lords, I also welcome the fact that we are in touching distance of an agreement on this matter. I thank the Minister for bringing forward Amendment 1. However, there is a little way to go. Amendment 1 is declaratory of what is contained in the Bill, whereas Amendment 2 is rather stronger and clearer.

Embedding a general right to data protection inspired by the Charter of Fundamental Rights is not only important for UK citizens but, as we have agreed in many debates and exchanges in this House, it is crucial for unhindered data flows between the UK and the European Union if we Brexit. It is absolutely crucial for business and law enforcement to be able to exchange data and have access to EU databases, such as the Schengen Information System, Europol and so on. The Government’s review of the charter, which was also most welcome and was produced last week, says that,

“domestic courts will be required to interpret retained EU law consistently with the general principle reflected in Article 8, so far as it is possible to do so”.

Is the Minister able to elucidate what that caveat leaves out? What would not be possible?

In the Watson case, to which the Brexit Secretary was a party until he became the Brexit Secretary, the European Court of Justice found that the current UK data protection regime in relation to data retention and acquisition was incompatible with Article 8 of the charter. This demonstrated the deep importance that the European Union places on charter rights in the protection of privacy. The draft resolution that the European Parliament is due to debate and vote on this Wednesday, on the joint report on the phase 1 divorce agreement that was reached last Friday,

“underlines that it will accept a framework for the future EU-UK relationship as part of the Withdrawal Agreement only if it is in strict concordance with the following principles”,

including the,

“United Kingdom’s adherence to the standards provided by international obligations, including fundamental rights … data protection and privacy”.

So we can expect this to be a very important matter, on which there will be a spotlight in the consideration of an adequacy assessment by the European Commission, which I think we all agree it is essential to achieve.

As I said in Committee, the adequacy assessment will be wide-ranging, taking in all aspects of law and practice in the United Kingdom. Of course, this will include the law and practice in terms of national security, which at the moment—rather ironically, or perversely—are excluded under the EU treaties. Once we are outside—if we are—there will be closer examination of how privacy fares in relation to the demands of national security than there is while we are in the EU. In that context, the national security issues in the Bill, which will be further debated as well, will perhaps take on a heightened importance.

On these Benches we believe that the rights under the charter in relation to data protection should be reflected in the Bill so as to have a general right to the protection of personal data in UK law. I very much agree with the course advocated by the noble Lord, Lord Stevenson, to reflect further and to accept the Government’s offer to come forward at Third Reading with something that we could all agree on.

--- Later in debate ---

[Baroness Ludford]

I thank the Minister for his response. I was glad that he addressed the question of an adequacy assessment at the end of his remarks, but with respect, it is not enough—or adequate—to address an adequacy assessment only at the point of asking for it. We must lay the foundations now. I cannot see the point in storing up potential problems when we could solve the problem of the basis. We ought to do everything in that prism. We can have delightful legal discussions—it is important to get the law right—but this is also crucial to business. We have had so many representations on that point. I am sure that the Minister’s colleague, the Secretary of State for Digital, Culture, Media and Sport, is preoccupied with this question. Surely we need to front-load our response? We cannot wait until the UK applies for an adequacy assessment to be told, “Well, it’s a pity that you didn’t enshrine the principles and the essence of article 8 of the charter”. We have a chance to do that now and ensure a solid platform for requesting an adequacy assessment. I admit that I am puzzled as to why the Government would not want to do that; it is important for law enforcement as well. Why would we not want to solve that problem now, instead of finding later that we have entirely predictable problems as a result of not doing so?

[Lord Ashton of Hyde]

I completely agree with the noble Baroness. We have applied the GDPR principles to areas such as defence, national security and the intelligence services in different parts of the Bill so that when we seek an adequacy arrangement, we can say to the EU that we have arranged a comprehensive data protection regime that takes all the GDPR principles into account, including areas that are not subject to EU law. That is why, contrary to what we said in Committee, we have taken the arguments on board and tabled government Amendment 1 to provide reassurance on that exact point. We originally said that the rights under article 8 were contained in the Bill, but we are now putting further reassurance in the Bill. Other areas of the Bill, without direct effect, signpost how the Bill should be regarded.

The noble Baroness supports the amendment but would like, I think, to create a free-standing right. I have explained why we do not agree with that. Before Third Reading, we will try to seek a form of words in our amendment that provides more reassurance, so that when it comes to seeking an adequacy decision—we cannot do that until we leave the EU—there will be no doubt about what this regime provides. That would be the best way to do it, I think.