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

Damian Collins Excerpts

Committee stage
Tuesday 16th May 2023 Public Bill Committees

I would like to finish by asking the Minister whether his Department has considered the impact of the new legislation on commercial scientific processing on children specifically. If so, what measures have been taken to ensure that the Bill does not put children’s personal data at risk of exploitation?

[Damian Collins (Folkestone and Hythe) (Con)]

I wish to pose a couple of questions, after two thoughtful and well-presented amendments from those on the Opposition Front Bench. With regard to children and the use of apps such as TikTok, what assurance will the Government seek to ensure that companies that process and store data abroad are abiding by the principles of our domestic legislation? I mention TikTok directly because it stores data from UK users, including children, in Singapore, and it has made clear in evidence to the Joint Committee on the Online Safety Bill that that data is accessed by engineers in China who are working on it.

We all know that when data is taken from a store and used for product development, it can be returned in its original state but a huge amount of information is gathered and inferred from it that is then in the hands of engineers and product developers working in countries such as China and under very different jurisdictions. I am interested to know what approach we would take to companies that store data in a country where we feel we have a data equivalence regime but then process the data from a third location where we do not have such a data agreement.

[Sir John Whittingdale]

I welcome the recognition of the importance of allowing genuine research and the benefits that can flow from it. Such research may well be dependent on using data and the clause is intended to provide clarity as to exactly how that can be done and in what circumstances.

I will address the amendments immediately. I am grateful to the hon. Member for Barnsley East for setting out her arguments and we understand her concerns. However, I think that the amendments go beyond what the clause proposes and, in addition, I do not think that there is a foundation for those concerns. As we have set out, clause 2 inserts in legislation a definition for processing for scientific research, historical research and statistical purposes. The definition of scientific research purposes is set out as

“any research that can be reasonably described as scientific”

and I am not sure that some of the examples that the hon. Lady gave would meet that definition.

The definitions inserted by the clause are based on the wording in the recitals to the UK GDPR. We are not changing the scope of these definitions, only their status in the legislation. They will already be very familiar to people using them, but setting them out in the Bill will provide more clarity and legal certainty. We have maintained a broad scope as to what is allowed to be included in scientific research, with the view that the regulator can add more nuance and context through guidance, as is currently the case. The power to require codes of practice provides a route for the Secretary of State to require the Information Commissioner to prepare any code of practice that gives guidance on good practice in processing personal data.

There will be situations where non-statutory guidance, which can be produced without being requested under regulations made by the Secretary of State, may be more appropriate than a statutory code of practice. Examples of the types of activity that are considered scientific research and the indicative criteria that a researcher should demonstrate are best placed in non-statutory guidance produced by the Information Commissioner’s Office. That will give flexibility to amend and change the examples when necessary, so I believe that the process does not change the provision. However, putting it in the legislation, rather than in the recitals, will impose stronger safeguards and make things clearer. Once the Bill has come into effect, the Government will continue to work with the ICO to update its already detailed and helpful guidance on the definition of scientific research as necessary.

Amendment 66 would prohibit the use of children’s data for commercial purposes under the definition of scientific research. The definition inserted by clause 2 includes the clarification that processing for scientific research carried out as a commercial activity can be considered processing for scientific research purposes. Parts of the research community asked for that clarification in response to our consultation. It reflects the existing scope, as is already clear from the ICO’s guidance, and we have seen that research by commercial bodies can have immense societal value. For instance, research into vaccines and life-saving treatments is clearly in the public interest. I entirely understand the hon. Lady’s concern for children’s privacy, but we think that her amendment could obstruct important research by commercial organisations, such as research into children’s diseases. I think that the Information Commissioner would make it clear as to whether or not the kind of example that the hon. Lady gave would fall within the definition of research for scientific purposes.

I also entirely understand the concern expressed by my hon. Friend the Member for Folkestone and Hythe. I suspect that the question about the sharing of data internationally, particularly, perhaps, by TikTok, may recur during the course of our debates. As he knows, we would share data internationally only if we were confident that it would still be protected in the same way that it is here, which would include considering the possibility of whether or not it could then be passed on to a third country, such as China.

I hope that I can reassure the hon. Lady that emphasising the safeguards that researchers must comply with in clause 22 to protect individuals relates to all data used for these purposes, including children’s data and the protections afforded to children under the UK GDPR. For those reasons, I hope that she will be willing to withdraw her amendment.

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The regulation-making powers in the clause will also be subject to the new requirements in clause 44. They provide that any regulations made under the UK GDPR are subject to consultation with the commissioner and such other persons as the Secretary of State considers appropriate.

[Damian Collins]

Will my right hon. Friend confirm whether the Information Commissioner’s advice will be published, either by the commissioner, the Minister or Parliament—perhaps through the relevant Select Committee?

[Sir John Whittingdale]

I am not sure it would necessarily be published. I want to confirm that, but I am happy to give a clear response to the Committee in due course if my hon. Friend will allow me.

As well as the advice that the Information Commissioner supplies, the proposal is also subject to the affirmative procedure, as the hon. Member for Barnsley East recognised, so Parliament could refuse to approve any additions to the list that do not respect the rights of data subjects. She suggested that it is rare for an affirmative resolution to be rejected by Parliament; nevertheless, it is part of our democratic proceedings, and every member of the Committee considering it will have the opportunity to reach their own view and vote accordingly. I hope that reassures the hon. Lady that there are already adequate safeguards in place in relation to the exercise of powers to add new activities to the list of recognised legitimate interests.

Amendment 67, which the hon. Lady also tabled, would require data controllers to publish a statement if they are relying on the new recognised legitimate interests lawful ground. The statement would have to explain what processing would be carried out in reliance on the new lawful ground and why the processing is proportionate and necessary for the intended purpose. In our view, the amendment would significantly weaken the clause. It would reintroduce something similar to the legitimate interests assessment, which, as we have heard, can unnecessarily delay some very important processing activities. In scenarios involving national security or child protection, for example, the whole point of the clause is to make sure that relevant and necessary personal data can be shared without hesitation to protect vulnerable individuals or society more generally.

I hope the hon. Lady is reassured by my response and agrees to withdraw her amendments. I commend clause 5 to the Committee.

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[Damian Collins]

The principle that underpinned what happened in the Cambridge Analytica scandal was the connection of Facebook profiles to the electoral register. If I understand my right hon. Friend the Minister correctly, what he is talking about would not necessarily change that situation. This could be information that the political campaign has gained anyway from a voter profile or from information that already exists in accounts it has access to on platforms such as Facebook; it would simply be attaching that, for the purposes of targeting, to people who voted in an election. The sort of personal data that Members of Parliament hold for the purposes of completing casework would not have been processed in that way. These proposals would not change in any way the ability to safeguard people’s data, and companies such as Cambridge Analytica will still seek other sources of open public data to complete their work.

[Sir John Whittingdale]

I think my hon. Friend is right. I have no doubt that we will go into these matters in more detail when we get to those provisions. As the hon. Member for Barnsley East knows, this measure makes a very narrow change to simply extend the existing time limit within which there is protection for elected representatives to conclude casework following a general election. As we will have opportunity in due course to look at the democratic engagement exemption, I hope she will be willing to support these narrow provisions.

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thereby emphasising the importance of proportionality when considering whether a request is vexatious or excessive.

[Damian Collins]

Does my right hon. Friend agree that the provisions will be helpful and important for organisations that gather data about public persons, and particularly oligarchs, who are very adept at using subject access requests to bombard and overwhelm a journalist or a small investigatory team that is doing important work looking into their business activities?

[Sir John Whittingdale]

I completely agree with my hon. Friend. That is an issue that both he and I regard as very serious, and is perhaps another example of the kind of legal tactic that SLAPPs—strategic lawsuits against public participation—represent, whereby oligarchs can frustrate genuine journalism or investigation. He is absolutely right to emphasise that.

It is important to highlight that controllers can already consider resource when refusing or charging a reasonable fee for a request. The Government do not wish to change that situation. Current ICO guidance sets out that controllers can consider resources as a factor when determining if a request is excessive.

The new parameters are not intended to be reasons for refusal. The Government expect that the new parameters will be considered individually as well as in relation to one another, and a controller should consider which parameters may be relevant when deciding how to respond to a request. For example, when the resource impact of responding would be minimal even if a large amount of information was requested—such as for a large organisation—that should be taken into account. Additionally, the current rights of appeal allow a data subject to contest a refusal and ultimately raise a complaint with the ICO. Those rights will not change with regard to individual rights requests.

Amendment 74 proposes adding more detail on the obligations of a controller who refuses or charges for a request from a data subject. The current legislation sets out that any request from a data subject, including subject access requests, is to be responded to. The Government are retaining that approach and controllers will be expected to demonstrate why the provision applies each time it is relied on. The current ICO guidance sets out those obligations on controllers and the Government do not plan to suggest a move away from that approach.

The clause also states that it is for the controller to show that a request is vexatious or excessive in circumstances where that might be in doubt. Thus, the Government believe that the existing legislation provides the necessary protections. Following the passage of the Bill, the Government will work with the ICO to update guidance on subject access requests, which we believe plays an important role and is the best way to achieve the intended effect of the amendments. For those reasons, I will not accept this group of amendments; I hope that the hon. Member for Barnsley East will be willing to withdraw them.

I turn to clause 7 itself. As I said, the UK’s data protection framework sets out key data subject rights, including the right of access—the right for a person to obtain a copy of their personal data. A subject access request is used when an individual requests their personal data from an organisation. The Government absolutely recognise the importance of the right of access and do not want to restrict that right for reasonable requests.

The existing legislation enables organisations to refuse or charge a reasonable fee for a request when they deem it to be “manifestly unfounded or excessive”. Some organisations, however, struggle to rely on that in cases where it may be appropriate to do so, which as a consequence impacts their ability to respond to reasonable requests.

The clause changes the legislation to allow controllers to refuse or charge a reasonable fee for a request that is “vexatious or excessive”. The clause adds parameters for controllers to consider when relying on the “vexatious or excessive” exemption, such as the nature of the request and the relationship between the data subject and the controller. The clause also includes examples of the types of request that may be vexatious, such as those intended to cause distress, those not made in good faith or those that are an abuse of process.

We believe that the changes will give organisations much-needed clarity over when they can refuse or charge a reasonable fee for a request. That will ensure that controllers can focus on responding to reasonable requests, as well as other important data and organisational needs. I commend the clause to the Committee.