Data Protection Bill [Lords]

Caroline Lucas Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 9th May 2018 Commons Chamber

[Caroline Lucas (Brighton, Pavilion) (Green)]

I very much agree with the points that the right hon. Gentleman is making. Does he agree that we ought to consider the way in which the crime exemption in the Bill will be invoked in respect of low-level offences under immigration law? Is it really acceptable for data rights to be suspended in relation to normal activities such as driving—just being here—that are currently criminalised under immigration law?

[Liam Byrne]

Those are real risks, which is why amendment 15 would delete such an important chunk of the Bill and therefore improve it.

I know that when I was a Home Office Minister, I took decisions that sometimes were wrong, and those decisions were corrected through the tribunal system. Tribunal cases were often successfully prosecuted by those who had rights that we were seeking to deny because subject access requests had been used to get the information necessary to win the argument. If we switch off that access, injustice will follow, so I urge the Government to think again and I urge Members from all parties to support amendment 15.

The last measure to which I shall speak is new clause 6, which is our proposal for a UK version of the Honest Ads Act that is currently being debated in the United States Congress. I do not want to rehearse the background to the debate for long, because for six months now a hardy group of us has been seeking to raise and unpack the new risks that we confront from countries such as Russia that are aiming at us a new panoply of active measures, including all kinds of bad behaviour online. Right now, we do not have good measures to defend the integrity of our democracy. Indeed, the most recent edition of the national security strategy did not even include the defence of the integrity of democracy among its core strategic aims.

We have to bring our election law into the 21st century as it is hopelessly out of date. We have an Electoral Commission that is unable effectively to investigate donations and money coming from abroad. The Information Commissioner has only this afternoon been given the powers that it needs. Ofcom will not investigate videos on social media and the Advertising Standards Authority does not investigate political advertising. We have a massive lacuna in which there should be good, robust legislation to police elections in the 21st century.

If we look at what is going on throughout the west, we see that we have to wake up to this risk. Giving the Electoral Commission new powers to require information about money that is used to run campaigns that try to influence votes is now a de minimis provision for a modern democracy in the digital age. We hope that the Minister will listen to us and take our ideas on board.

--- Later in debate ---

[Dr Paul Williams (Stockton South) (Lab)]

It is a pleasure to follow my hon. Friend the Member for Cambridge (Daniel Zeichner). I also pay tribute to the hon. Member for Totnes (Dr Wollaston), who is an extremely capable Chair of the Health and Social Care Committee and has shown real resolution and persistence on new clause 12.

In the sanctity of the consulting room, patients tell doctors, nurses and NHS staff all kinds of things. I have had all kinds of private and confidential issues disclosed to me in the 22 years that I have worked as a doctor, but the protection that the NHS gives to this information is absolutely fundamental. For years, the NHS has, on request from the Home Office, been sharing the address details of some patients that have ultimately been used to deport an unknown number of people over many years.

I recently visited a clinic run by the excellent charity, Doctors of the World, in Bethnal Green. I heard stories there of vulnerable people being afraid to approach NHS services because they cannot be certain that the information that they are asked to give will be treated confidentially. I heard about pregnant women not going for antenatal care, people with HIV not getting treatment and people who are afraid to take their children to the GP. The bond of trust between the NHS and its patients relies on the truth being told in both directions. Sadly, people have been avoiding the NHS because they do not trust it. That is bad for the reputation of the NHS, bad for the health of individual patients and bad for public health.

Doctors, nurses and other health professionals do not want information that is given to the NHS by patients to be shared except in the most extreme cases, when there is a significant risk to individuals or to the public. I am pleased that the Government have found a way to assure the House this evening that NHS information will be shared only in the event of a conviction or an investigation for a serious crime. This is the only way to preserve the integrity of the NHS and the immeasurable, vital and precious bond of trust between NHS staff and their patients.

[Caroline Lucas]

Like others, I would like to associate myself with the very powerful arguments that have been made in favour of amendment 15, but I want to speak briefly to amendment 16 to extend the debate about the conditions under which someone’s rights can be breached. It would prevent the crime exemption in the Bill being invoked in relation to low-level offences under immigration law.

Few of us would dispute the overall principle that data might be shared in some circumstances—for example, to prevent a serious crime or to apprehend an offender—but when the crimes in question are not serious and arise simply because of someone’s immigration status, we have to question whether the grounds for suspending data protection rights really do stack up. It is clear that the majority of offences under immigration law are not serious crimes. Most result only in a custodial sentence of two years or less, or a fine. Rather, they are the mundane activities of people doing what they must to survive. The effect is already forcing undocumented migrants to avoid sending their children to school, visiting the GP, presenting to homelessness services and seeking social support, for fear they might risk detention and removal by doing so.

Last year, a woman who was five months pregnant went to report being repeatedly raped to the police but was subsequently arrested at a rape crisis centre on immigration grounds. My amendment 16 seeks to better protect her and all others like her whose data protection rights are routinely being breached just because they are undocumented migrants and who are therefore being automatically criminalised just for leading their lives. There must be a firewall between Home Office immigration control and other Departments if we are serious about ending the current hostile immigration environment.

[Stuart C. McDonald]

I echo the criticisms of the outrageous immigration exemption in the Bill and am pleased to add my name to amendment 15.

Little has been said today about international transfers of personal data by intelligence services, despite the serious concerns raised in Committee. I will therefore speak briefly to new clause 24, which it is all the more important we debate, given the moves by the Trump Administration in the USA to roll back on safeguards on the targeting of drone strikes and the significant increase in their use of lethal force outside armed conflict zones. These developments mean an increased risk of strikes being in breach of international human rights law, and we know that UK intelligence personnel are involved in the transfer of data that could be used in such drone strikes, so it is all the more important that there be safeguards and accountability on when and how information can be transferred and that legal certainty be provided for our personnel.

As the Joint Committee on Human Rights said in its 2016 report,

“we owe it to all those involved in the chain of command for such uses of lethal force…to provide them with absolute clarity about the circumstances in which they will have a defence against any possible future criminal prosecution, including those which might originate from outside the UK.”

The Bill fails to provide those safeguards and clarity. Clause 109 places no realistic restriction on such transfers, referring simply to necessity and proportionality in pursuit of statutory goals. The new clause would provide a clear bar on transfers for use in unlawful operations and introduce accountability and transparency by requiring that written reasons be provided for any transfer thought to be lawful, that there be ministerial sign-off, that certain information be provided to the Information Commissioner and the Investigatory Powers Commissioner and that guidance on transfers be laid before Parliament. The new clause would not hinder but help our personnel working in this area and ensure that the UK is seen as complying with the rule of law and its international obligations. This is an important debate to which we will have to return in the future.

Question put and agreed to.

New clause 13 accordingly read a Second time, and added to the Bill.

New Clause 14

Destroying or falsifying information and documents etc

“(1) This section applies where a person—

(a) has been given an information notice requiring the person to provide the Commissioner with information, or

(b) has been given an assessment notice requiring the person to direct the Commissioner to a document, equipment or other material or to assist the Commissioner to view information.

(2) It is an offence for the person—

(a) to destroy or otherwise dispose of, conceal, block or (where relevant) falsify all or part of the information, document, equipment or material, or

“(b) to cause or permit the destruction, disposal, concealment, blocking or (where relevant) falsification of all or part of the information, document, equipment or material,

with the intention of preventing the Commissioner from viewing, or being provided with or directed to, all or part of the information, document, equipment or material.

(3) It is a defence for a person charged with an offence under subsection (2) to prove that the destruction, disposal, concealment, blocking or falsification would have occurred in the absence of the person being given the notice.”—(Margot James.)

This new clause would be inserted after Clause 145. It provides that, where the Information Commissioner has given an information notice (see Clause 141) or an assessment notice (see Clause 144) requiring access to information, a document, equipment or material, it is an offence to destroy or otherwise dispose of, conceal, block or (where relevant) falsify it.

Brought up, read the First and Second time, and added to the Bill.

New Clause 15

Applications in respect of urgent notices

“(1) This section applies where an information notice, an assessment notice or an enforcement notice given to a person contains an urgency statement.

(2) The person may apply to the court for either or both of the following—

(a) the disapplication of the urgency statement in relation to some or all of the requirements of the notice;

(b) a change to the time at which, or the period within which, a requirement of the notice must be complied with.

(3) On an application under subsection (2), the court may do any of the following—

(a) direct that the notice is to have effect as if it did not contain the urgency statement;

(b) direct that the inclusion of the urgency statement is not to have effect in relation to a requirement of the notice;

(c) vary the notice by changing the time at which, or the period within which, a requirement of the notice must be complied with;

(d) vary the notice by making other changes required to give effect to a direction under paragraph (a) or (b) or in consequence of a variation under paragraph (c).

(4) The decision of the court on an application under this section is final.

(5) In this section, “urgency statement” means—

(a) in relation to an information notice, a statement under section141(7)(a),

(b) in relation to an assessment notice, a statement under section144(8)(a) or (8A)(d), and

(c) in relation to an enforcement notice, a statement under section147(8)(a).”—(Margot James.)

This new clause would be inserted after Clause 160. It enables a person who is given an information notice, assessment notice or enforcement which requires the person to comply with it urgently to apply to the court for variation of the timetable for compliance. It replaces the provision in Clauses 159(2) and 160(5) for appeals to the Tribunal. See also Amendments 54, 56 and 60.

Brought up, read the First and Second time, and added to the Bill.

New Clause 16

Post-review powers to make provision about representation of data subjects

“(1) After the report under section 182(1) is laid before Parliament, the Secretary of State may by regulations—

(a) exercise the powers under Article 80(2) of the GDPR in relation to England and Wales and Northern Ireland,

(b) make provision enabling a body or other organisation which meets the conditions in Article 80(1) of the GDPR to exercise a data subject’s rights under Article 82 of the GDPR in England and Wales and Northern Ireland without being authorised to do so by the data subject, and

(c) make provision described in section182(2)(e) in relation to the exercise in England and Wales and Northern Ireland of the rights of a data subject who is a child.

(2) The powers under subsection (1) include power—

(a) to make provision enabling a data subject to prevent a body or other organisation from exercising, or continuing to exercise, the data subject’s rights;

(b) to make provision about proceedings before a court or tribunal where a body or organisation exercises a data subject’s rights;

(c) to make provision for bodies or other organisations to bring proceedings before a court or tribunal combining two or more claims in respect of a right of a data subject;

(d) to confer functions on a person, including functions involving the exercise of a discretion;

(e) to amend sections162 to164,173,180,194,196 and197;

(f) to insert new sections and Schedules into Part 6 or 7;

(g) to make different provision in relation to England and Wales and in relation to Northern Ireland.

(3) The powers under subsection (1)(a) and (b) include power to make provision in relation to data subjects who are children or data subjects who are not children or both.

(4) The provision mentioned in subsection (2)(b) and (c) includes provision about—

(a) the effect of judgments and orders;

(b) agreements to settle claims;

(c) the assessment of the amount of compensation;

(d) the persons to whom compensation may or must be paid, including compensation not claimed by the data subject;

(e) costs.

(5) Regulations under this section are subject to the affirmative resolution procedure.”—(Margot James.)

This new clause would be inserted after Clause 182. It contains the provisions currently in subsections (4) to (7) of Clause 182, modified to take account of the changes made to that Clause by Amendments 61 and 62 (see subsections (1)(c) and (3) of this new Clause).

Brought up, read the First and Second time, and added to the Bill.

New Clause 17

Reserve forces: data-sharing by HMRC

“(1) The Reserve Forces Act 1996 is amended as follows.

(2) After section 125 insert—

“125A Supply of contact details by HMRC

(1) This subsection applies to contact details for—

(a) a member of an ex-regular reserve force, or

(b) a person to whom section 66 (officers and former servicemen liable to recall) applies,

which are held by HMRC in connection with a function of HMRC.

(2) HMRC may supply contact details to which subsection (1) applies to the Secretary of State for the purpose of enabling the Secretary of State—

(a) to contact a member of an ex-regular reserve force in connection with the person’s liability, or potential liability, to be called out for service under Part 6;

(b) to contact a person to whom section 66 applies in connection with the person’s liability, or potential liability, to be recalled for service under Part 7.

(3) Where a person’s contact details are supplied under subsection (2) for a purpose described in that subsection, they may also be used for defence purposes connected with the person’s service (whether past, present or future) in the reserve forces or regular services.

(4) In this section, “HMRC” means Her Majesty’s Revenue and Customs.

125B Prohibition on disclosure of contact details supplied under section 125A

‘(1) A person who receives information supplied under section 125A may not disclose it except with the consent of the Commissioners for Her Majesty’s Revenue and Customs (which may be general or specific).

(2) A person who contravenes subsection (1) is guilty of an offence.

(3) It is a defence for a person charged with an offence under this section to prove that the person reasonably believed—

(a) that the disclosure was lawful, or

(b) that the information had already lawfully been made available to the public.

(4) Subsections (4) to (7) of section 19 of the Commissioners for Revenue and Customs Act 2005 apply to an offence under this section as they apply to an offence under that section.

(5) Nothing in section 107 or 108 (institution of proceedings and evidence) applies in relation to an offence under this section.

125C Data protection

‘(1) Nothing in section 125A or 125B authorises the making of a disclosure which contravenes the data protection legislation.

(2) In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).”—(Margot James.)

This new clause would be inserted after Clause 186. It provides for HMRC to supply the Secretary of State with the contact details of members of the ex-regular reserve force and former members of the armed forces so that they may be contacted regarding their liability to be called out or recalled for service under the Reserved Forces Act 1996. The details supplied may also be used for defence purposes connected with their service in the forces (whether past, present or future). It is an offence for the details supplied to be disclosed without the consent of the Commissioners for Revenue and Customs.

Brought up, read the First and Second time, and added to the Bill.