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

Debate between Carol Monaghan and Stephanie Peacock

Committee stage
Tuesday 23rd May 2023 Public Bill Committees

[Carol Monaghan]

I thank the Minister for responding to my amendments. However, we have a situation where we are going from having a specialist oversight to a somewhat more generalist oversight. That cannot be good when we are talking about this fast-moving technology. I will withdraw my amendment for the moment, but I reserve the right to bring it back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 ordered to stand part of the Bill.

Clause 106

Oversight of biometrics databases

[Stephanie Peacock]

I beg to move amendment 119, in clause 106, page 130, line 7, leave out

“which allows or confirms the unique identification of that individual”.

This amendment is intended to ensure that the definition of biometric data in the Bill includes cases where that data is used for the purposes of classification (and not just unique identification).

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

Debate between Carol Monaghan and Stephanie Peacock

Committee stage
Thursday 18th May 2023 Public Bill Committees

[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.

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

Debate between Carol Monaghan and Stephanie Peacock

Committee stage
Tuesday 16th May 2023 Public Bill Committees

[Carol Monaghan]

I will not move it formally, Mr Hollobone, but I may bring it back on Report.

[Stephanie Peacock]

I beg to move amendment 76, in clause 11, page 19, line 34, at end insert—

“5A. The Secretary of State may not make regulations under paragraph 5 unless—

(a) following consultation with such persons as the Secretary of State considers appropriate, the Secretary of State has published an assessment of the impact of the change to be made by the regulations on the rights and freedoms of data and decision subjects (with particular reference to children),

(b) the Commissioner has reviewed the Secretary of State’s statement and published a statement of the Commissioner’s views on whether the change should be made, with reasons, and

(c) the Secretary of State has considered whether to proceed with the change in the light of the Commissioner’s statement.”

This amendment would make the Secretary of State’s ability to amend the safeguards for automated decision-making set out in new Articles 22A to D subject to a requirement for consultation with interested parties and with the Information Commissioner, who would be required to publish their views on any proposed change.

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

Debate between Carol Monaghan and Stephanie Peacock

Committee stage
Tuesday 16th May 2023 Public Bill Committees

[Stephanie Peacock]

The impact of clause 9 and the concerns around it should primarily be understood in relation to the definition contained in clause 2, so I refer hon. Members to my remarks in the debate on clause 2. I also refer them to my remarks on purpose limitation in clause 6. To reiterate both in combination, I should say that purpose limitation exists so that it is clear why personal data is being collected, and what the intention is behind its use. That means that people’s data should not largely be reused in ways not initially collected for, unless a new legal basis is obtained.

It is understandable that, where genuine scientific, historical and statistical research is occurring, and there is disproportionate effort to provide the information required to data subjects, there may be a need for exemption and to reuse data without informing the subject. However, that must be done only where strictly necessary. We must be clear that, unless there are proper boundaries to the definition of scientific data, this could be interpreted far too loosely.

I am concerned that, without amendment to clause 2, clause 9 could extend the problem of scientific research being used as a guise for using people’s personal data in malicious or pseudoscientific ways. Will the Minister tell us what protections will be in place to ensure that people’s data is not reused on scientific grounds for something that they would otherwise have objected to?

On clause 10, I will speak more broadly on law enforcement processing later in the Bill, but it is good to have clarity on the legal professional privilege exemptions. I have no further comments at this stage.

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

What we are basically doing is changing the rights of individuals, who would previously have known when their data was used for a purpose other than that for which it was collected. The terms

“scientific or historical research, the purposes of archiving in the public interest or statistical purposes”

are very vague, and, according to the Public Law Project, open to wide interpretation. Scientific research is defined as

“any research that can reasonably described as scientific, whether publicly or privately funded”.

I ask the Minister: what protections are in place to ensure that private companies are not given, through this clause, a carte blanche to use personal data for the purpose of developing new products, without the need to inform the data subject?

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

Debate between Carol Monaghan and Stephanie Peacock

Committee stage
Wednesday 10th May 2023 Public Bill Committees

[Stephanie Peacock]

Q My final question is to all the witnesses. What are your views on the reforms to the ICO and their potential impact on its independence from Government?

Ms Irvine: We have concerns about the proposed changes and their potential impact on the independence of the Information Commissioner. I was able to listen to John Edwards speaking this morning, and I noted that he did not share those concerns, which I find surprising. The ICO is tasked with producing statutory codes of conduct, which are incredibly useful for my clients and for anyone working in this sector. The fact that the Secretary of State can, in effect, overrule these is concerning, and it must be seen as a limit on the Information Commissioner’s independence.

That leads to a concern that we have in relation to the adequacy decision that is in place between the EU and the United Kingdom. Article 52 of the GDPR states very clearly that a supervisory authority must have clear independence. The provisions relating to the independence of the Commission—the potential interference of the Secretary of State in law is enough to undermine independence—are therefore of concern to us.

Alexandra Sinclair: We would just say that it is not typical for an independent regulator to have its strategic objectives set by a Minister, and for a Minister to set those priorities without necessarily consulting. We consider that the ICO, as subject matter experts, are probably best placed to do that.

Jacob Smith: From our perspective, the only thing to add is that one way to improve the clauses on national security certificates and designation notices would be to give the ICO an increased role in oversight and monitoring, for instance. Obviously, if there are concerns about its independence, we would want to consider other mechanisms.

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

Q Laura Irvine, in your briefing about the Bill you raised concerns about some of the language. We had some discussion this morning about the language and particular terms, such as what “vexatious” means, for example. Could you elaborate on your concerns?

Ms Irvine: Certainly. There are terms that have been used in data protection law since the 1984 Act. They were used again in the 1998 Act, echoed under the GDPR and included in all the guidance that has come from the Information Commissioner’s Office over the past number of years. In addition to that, there is case law that has interpreted many of those terms. Some of the proposed changes in the Bill introduce unexpected and unusual terms that will require interpretation. Even then, once we have guidance from the Information Commissioner, that guidance is sometimes not as helpful as interpretation by tribunals and courts, which is pretty sparse in this sector. The number of cases coming through the courts is limited—albeit that there is a lot more activity in the sector than there used to be. It simply presents a lot more questions and uncertainty in certain ways.

For my business clients, that is a great difficulty, and I certainly spend a lot of time advising clients on how I believe a matter—a phrase—will be interpreted, because I have knowledge of how data protection law works in general. That is based on my experience of the power of businesses and organisations, particularly in the third sector. Smaller bodies will often be challenged by a lack of knowledge and expertise, and that is a difficulty of introducing in legislation brand-new terms that are not familiar to practitioners, far less the organisations asked to implement the changes.