Data Protection Bill [Lords] (Sixth sitting)

Darren Jones Excerpts

Tuesday 20th March 2018 Public Bill Committees

[Liam Byrne]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 170 ordered to stand part of the Bill.

Clause 171

Re-identification of de-identified personal data

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

[Darren Jones]

It is a pleasure to serve under your chairmanship this afternoon, Mr Streeter. I want to pursue the debate on the re-identification of de-identified personal data because, as the Minister pointed out, under the general data protection regulation, the idea of pseudonymised data comes into the law for the first time. For example, if my name, as my personal data, is turned into #365, it has been pseudonymised, and the question is whether #365 can be unlocked to identify the name “Darren Jones”. Pseudonymising is distinct from anonymising, which cannot be unlocked.

The question has come up a lot in the Select Committee on Science and Technology, in various contexts. I had a conversation with the Minister and her officials in the Select Committee about one scenario—the use of genetic data in the health service, where lots of data from individuals is pooled together for the purpose of learning about trends. It may be re-applied to the individual in the delivery of care. Another example might involve Facebook clients being able to upload customer lists on to the Facebook advertising profile. Each name would be hashed—pseudonymised—but ultimately targeted advertising could be pushed through to the individual’s profile.

Both those scenarios raise a policy question about the end of the process, when it comes back to the individual—the information has been personally identifiable, then is pseudonymised in a pooled way, and is then re-identified. Will those issues give rise to an offence under the part of the Bill that we are considering, and should consent be different, with the potential for pseudonymised data to be re-identified made clear to the end user? The reason I have not tabled any amendments to deal with the point is that I do not know the answer, but I should welcome the Minister’s views, and perhaps a commitment to have a conversation either with the Information Commissioner or the new data and artificial intelligence ethics unit about different types of consent where data is pseudonymised and then re-identified, either for health purposes or targeted advertising.

[The Chair]

I hope the Minister understood all that.

--- Later in debate ---

[Margot James]

I will have to write to the hon. Lady on that. I do not think it would provide cover for insurance companies in those circumstances, but I would like to double-check before I give a definitive answer to her question.

Question put and agreed to.

Clause 171 accordingly ordered to stand part of the Bill.

Clauses 172 to 176 ordered to stand part of the Bill.



Clause 177

Jurisdiction

[Darren Jones (Bristol North West) (Lab)]

I beg to move amendment 151, in clause 177, page 102, line 13, at end insert—

“(4) Notwithstanding any provision in section 6 of the European Union (Withdrawal) Act 2018, a court or tribunal shall have regard to decisions made by the European Court after exit day so far as they relate to any provision under this Act.”.

For fear of sounding like a broken record, my arguments in favour of the amendment are broadly similar to those for amendment 152—in seeking to assist the Government in our shared aim of getting a decision of adequacy with the European Commission, it would be helpful to set out in the Bill our commitment to tracking and implementing European jurisprudence in the area of data protection. Members will remember that amendment 152 dealt with the European data protection board. Amendment 151 makes the same argument, but in respect of the European Court.

I appreciate that there may be some political challenges in stating the aim that the UK will mirror the European Court’s jurisdiction, but the reality is that developing European data protection law, either directly from the courts or through the European data protection board, will in essence come from the application of European law at the European Court of Justice. The amendment does not seek to cause political problems for the Government, but merely says that we ought to have regard to European case law in UK courts, in order to provide the obligation to our learned friends in the judiciary to have regard to European legal decision making and debates in applying European-derived law in the United Kingdom. This short amendment seeks merely to put that into the Bill, to assist the Government in their negotiations on adequacy with the European Commission.

[Liam Byrne]

I would like to say a word in support of this important amendment. We had a rich and unsatisfactory debate on the incorporation of article 8 of the European charter of fundamental rights into British law. We think that that would have helped the Government considerably in ensuring that there is no divergence between the European data protection regime and our own. If the Government are successful, they will operate on different constitutional bases, and there is therefore a real risk of divergence over the years to come. I think that everyone on the Committee is now pretty well versed in the damage that that would do to British exports, many of which are digitally enabled. This is a really helpful amendment. It tries to tighten to lockstep that we have to maintain with European data protection regimes, which will be good for exports, services and the British economy, and the Government should accept it.

--- Later in debate ---

[Margot James]

Courts will be allowed to follow the jurisprudence of the ECJ in this area of data protection. Nothing I am saying is prompting a departure from that position. We see the amendment as going further than we would like to go. By contrast, the Government’s proposed approach to CJEU oversight respects the referendum result and is clear, consistent and achievable.

[Darren Jones]

The Minister gave a full answer, largely in agreement with the points I made.

[Margot James]

Not much; not with those.

[Darren Jones]

I agree. I would therefore invite the Government to reconsider their position and support the amendment, because it reflects what is in the EU (Withdrawal) Bill, it talks about having regard to ECJ jurisprudence in future and, as the Minister pointed out, Government policy and the Government’s intention are that we are going to end up in that position anyway. By putting that in the Bill, we would put it into law and give a very clear signal to our colleagues in the European Union that that is our intention and we will stand by it.

The Minister’s arguments do not seem to stack up. If I were saying in the amendment that we must apply ECJ case law directly and that the UK courts had no power to disregard EU jurisprudence I would probably agree, but that is not what it seeks to do. I am not convinced it goes beyond the Government’s policy position nor what is said in the EU (Withdrawal) Bill. I merely seek to help the Government by making this simple amendment to the Bill. With your permission, Mr Streeter, I will push it to a vote.

Question put, That the amendment be made.