Data Protection and Digital Information (No. 2) Bill (Fifth sitting)

Carol Monaghan Excerpts

Committee stage
Thursday 18th May 2023 Public Bill Committees

[Sir John Whittingdale]

Obviously that is a matter for the Information Commissioner, but that is the overriding principal objective. I am about to set out some of the other objectives that the clause will introduce, but it is made very clear that the principal objective is to ensure the appropriate level of protection. Precisely how the Information Commissioner interprets “appropriate level of protection” is a matter for him, but I think it is fairly clear what that should entail, as he himself set out in his evidence.

As I have said, clause 27 introduces new duties that the commissioner must consider where they are relevant to his work in carrying out data protection functions: the desirability of promoting innovation and competition; the importance of the prevention, investigation, detection and prosecution of criminal offences; the need to safeguard public security and national security; and, where necessary, the need to consult other regulators when considering how the ICO’s work may affect economic growth, innovation and competition. There is also the statement of strategic priorities, which is introduced by clause 28. However, as I have indicated to the hon. Member for Newcastle upon Tyne Central, the commissioner will be clear that his primary focus should be to achieve the principal objective.

Clause 27 also introduces new reporting requirements for the commissioner in relation to the strategic framework. The commissioner will be required to publish a forward-looking strategy outlining how he intends to meet the new principal objective and duties, as well as pre-existing duties in the Deregulation Act 2015 and the Legislative and Regulatory Reform Act 2006.

Finally, the commissioner will be required to publish a review of what he has done to comply with the principal objective, and with the new and existing duties, in his annual report.

[Carol Monaghan (Glasgow North West) (SNP)]

I wonder whether part of the strategy might include a list of fees that could potentially be charged for accessing data. This idea of fees seems to be quite vague in terms of amounts and levels, so it would be useful to have some more information on that.

[Sir John Whittingdale]

I think we will come on to some of the questions around the fees that are potentially payable, particularly by those organisations that may be required to provide more evidence, and the costs that that could entail. I will return to that subject shortly.

The new strategic framework acknowledges the breadth of the ICO’s remit and its impact on other areas. We believe that it will provide clarity for the commissioner, businesses and the general public on the commissioner’s objectives and duties. I therefore commend clause 27 to the Committee.

--- Later in debate ---

[Stephanie Peacock]

I will focus most of my remarks on the group on clauses 39 and 40, as clause 41 and schedule 8 contain mostly consequential provisions, as the Minister outlined.

There are two major sections to the clauses. First, they require a complainant to issue their complaint to the controller directly, through allowing the commissioner to refuse to process their complaint otherwise. Secondly, they require the commissioner to refuse any complaint that is vexatious or excessive. I will speak to both in turn.

As the ICO grows and its remit expands, given the rapidly growing use of data in our society, it makes sense that its resources should be focused where they are most needed. Indeed, when giving evidence to the Committee, the Information Commissioner and Paul Arnold of the ICO stated that their current duty to investigate all complaints is creating a burden on their resources. Therefore, the proposal to require that complainants reach out to their data controller first, before contacting the ICO, seems to make sense, as it will allow the regulator to move away from handling low-level complaints, or complaints that are under way but not yet resolved. Instead, it would be able to refocus resources into handling complaints that have been mishandled or that offer a serious threat to data rights and public trust in data use.

Though that may be seen by some businesses and controllers as shifting an extra requirement on to them, the move should be viewed overall as a positive one, as it will require controllers to have clear processes in place for handling complaints and hopefully incentivise against conducting the kind of unlawful processing that prompts complaints in the first place. Indeed, the ICO already encourages that type of best practice, with complainants often encouraged to speak directly with the relevant data controller first before seeking help from the regulator. The clause would therefore simply formalise the arrangement, providing clarity on three levels. First, it would ensure that data subjects are clear on their right to complain directly to the controller. Secondly, it would ensure that controllers are clear on their duty to respond to such complaints. Finally, the ICO would be certain of its ability to refuse a request if the complainant refuses to comply with that model.

Although it is vital that the ICO is able to modernise and direct efforts where they are most needed, it is also vital that a healthy relationship is kept between the public—as data and decision subjects—and the ICO. The public must feel that the commissioner is there to support them in exercising their rights or seeking redress where necessary, not least because lodging a complaint can already be a difficult and distressing process. Indeed, even the commissioner himself said, when he first assumed his role, that he wanted to

“make it easy for people to access remedies if things go wrong.”

As such, it is pleasing to see safeguards built into the clause that ensure a complainant can still escalate their complaint to the ICO, and appeal any refusal from the commissioner to a tribunal.

Data rights groups, such as the Open Rights Group, hold much more serious concerns about the ability to refuse vexatious and excessive requests. Indeed, they worry that the new power will allow the ICO to ignore widespread and systemic abuses of data rights. As was the case with subject access requests, the difference between a complaint made in anger—which is quite likely, given that the complainant believes they have suffered an abuse of their rights—and a vexatious one must be clearly distinguished. The ICO should not be able to reject complaints of data abuses simply because the complainant acts in ways caused by distress.

As the response of the Government to their consultation reveals, only about half of respondents agreed with the proposal to set out criteria by which the ICO can decide not to investigate a complaint. The safeguard to appeal any refusal from the commissioner is therefore crucial in ensuring that there is a clear pathway for data subjects and decision subjects to dispute the decision of the ICO. It is also right that they should be informed of that safeguard, as well as told why their complaint has been refused, and given the opportunity to complain again with a more complete picture of information.

Overall, the clauses seems to strike the right balance between ensuring safeguards for data and decision subjects while helping the ICO to modernise. However, terms such as “vexatious” and “excessive” must be clearly defined to ensure that the ICO is able to exercise this new power of refusal proportionately and sensibly.

[Carol Monaghan]

I am looking for some clarification from the Minister. Under clause 39, it says:

“A controller must facilitate the making of complaints…such as providing a complaint form which can be completed electronically and by other means.”

Can the Minister clarify whether every data controller will have to provide an electronic means of making a complaint? For many small data controllers, which would include many of us in the room, providing an electronic means of complaint might require additional expertise and cost that they may not have. If it said, “and/or by other means”, which would allow a data controller to provide a paper copy, that might provide a little more reassurance to data controllers.

[Sir John Whittingdale]

Let me address the point of the hon. Member for Glasgow North West first. The intention of the clause is to ensure that complainants go first to the data controller, and the data controller makes available a process whereby complaints can be considered. I certainly fully understand the concern of the hon. Lady that it should not prove burdensome, particularly for small firms, and I do not believe that it would necessarily require an electronic means to do so. If that is not the case, I will tell her, but it seems to me that the sensible approach would be for data controllers to have a process that the Information Commissioner will accept is available to complainants first, before a complaint is possibly escalated to the next stage.

With regard to the point of the hon. Member for Barnsley East, we have debated previously the change in the threshold to “vexatious” and “excessive”, and we may continue to disagree on that matter.

Question put and agreed to.

Clause 39 accordingly ordered to stand part of the Bill.

Clauses 40 and 41 ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 42

Consequential amendments to the EITSET Regulations

Amendment made: 47, Clause 42, page 72, line 12, at end insert—

“(7A) In paragraph 13 (modification of section 155 (penalty notices)), in sub-paragraph (3)(c), for “for “data subjects”” there were substituted “for the words from “data subjects” to the end”.”.—(Sir John Whittingdale.)

This amendment inserts an amendment of Schedule 2 to the EITSET Regulations which is consequential on the amendment of section 155(3)(c) of the Data Protection Act 2018 by Schedule 4 to the Bill.

Clause 42, as amended, ordered to stand part of the Bill.

Clause 43

Protection of prohibitions, restrictions and data subject’s rights

Question proposed, That the clause stand part of the Bill.