Data Protection Bill [Lords] (Fourth sitting)

Darren Jones Excerpts

Thursday 15th March 2018 Public Bill Committees

[Victoria Atkins]

If I understand the hon. Lady’s argument correctly, she has presented the judicial commissioners as permitting, for example, warrant to be granted. Having sat through the Joint Committee on the Draft Investigatory Powers Bill and then the Public Bill Committee, I can tell her that I am afraid that is not how that Act works. What happens is that the Secretary of State grants the warrant and then that decision is overseen by the judicial commissioner. I will come on to the difference between the Investigatory Powers Act and this Bill in due course, because the terminology used draws on that in the Investigatory Powers Act, but that Act is very different from this Bill, which is about the processing of data, in its engagement with people and their rights.

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

Will the Minister give way on that point?

[Victoria Atkins]

If I may, I will make some progress. Along with existing provisions in section 28 of the 1998 Act, clause 27 provides for a certificate signed by a Minister of the Crown certifying that exemption from specified data protection requirements is required for the purposes of safeguarding national security. There are equivalent provisions in parts 3 and 4 of the Bill. Such a certificate is conclusive evidence of that fact, for example in any legal proceedings. That is the point about the certificates—they only come into play if the exemption or restriction is actually applied.

The certificate provides evidence that the exemption or restriction is required for the purpose of safeguarding national security. It therefore has relevance only in the event that, first, the exemption or restriction is applied to the data in question and, secondly, there is a need to rely on the certificate as conclusive evidence in proceedings to establish that the exemption or restriction is required for the statutory purpose.

--- Later in debate ---

[Victoria Atkins]

I will come on, if I may, to the judicial review test. I have quite a lot about that.

[Darren Jones]

Before the Minister does that, will she give way?

[Victoria Atkins]

I am grateful to have more time for my officials to scribble a response.

[Darren Jones]

I am happy to help the Minister. She keeps referring to the framework that has been in place for the last 30 years. That has been a time when we have been a member of the European Union. In reviewing this situation, the House of Lords European Union Committee made the point that under the treaty on the functioning of the European Union, there is absolute jurisdiction for national member states to take decisions on national security. That is not an EU area of jurisdiction. The treaty says that we are protected as a member of the EU, but if we leave the European Union we are not protected by that exemption under the treaty. That is why, for third countries, the European Commission looks at the whole legislative framework. Do we not risk the adequacy decision by taking this approach? In the future, we will not have the answer of saying that it is an issue of exemption from the European Commission.

[Victoria Atkins]

National security must always be a matter for any member state in the EU, but also once we leave the EU. Sorry, I may have misunderstood the hon. Gentleman, but how we deal with national security is, of course, a matter for the state.

[Darren Jones]

I am happy to clarify for the Minister. The status quo is that the European Union will not look at areas of national security because they are the jurisdiction of member states. When we leave the European Union, the Commission will look at the entirety of legislation around data protection and privacy rights, because there are no exemptions that it needs to take into account. The noble Lords made the point that our

“data protection standards would be assessed without the benefit of the protection afforded by the national security exemption”

under the treaty. Do we not risk our adequacy by taking these exemptions?

[Victoria Atkins]

No, because those who have drafted the Bill have sought, at all times, to comply with the law enforcement directive and with the modernised, draft Council of Europe convention 108. The Bill very much meets those standards, not just on law enforcement but across parts 3 and 4.

--- Later in debate ---

[Darren Jones]

I rise to support the amendments in the name of my hon. Friend the Member for Sheffield, Heeley. I had the pleasure of cross-examining Baroness Williams of Trafford, who is the Minister responsible for some of these issues, on the Select Committee on Science and Technology in our inquiry on the biometric strategy and why there has been such a delay in the Government publishing that document. We had grave concerns about the delay in the strategy, but also about the way in which IT systems and servers in different forces act in different ways, which make things potentially very difficult.

The amendments would add safeguards to legitimate purposes—to prevent them from going too far. They should be welcomed by the Government and included in the Bill. There are a number of situations where, in this developing area of technology, which could be very useful to us as a country, as my hon. Friends have said, we need to ensure that the appropriate safeguards are in place. On facial recognition, we know from information received by the Science and Technology Committee that there is too high a number of facial records on the police national database and other law enforcement databases, when there is no legitimate reason for them to be there. We understand that it is difficult to delete them, but that is, with respect, not a good enough answer.

The Select Committee also heard—I think I mentioned this in an earlier sitting—that we have to be careful about the data that the Government hold. The majority of the adult population already has their facial data on Government databases, in the form of passport and driving licence imagery. When we start talking about the exemptions to being able to share data between different Government functions and law enforcement functions, and the exemptions on top of that for the ability to use those things, we just need to be careful that it does not get ahead of us. I know it is difficult to legislate perfectly for the future, but these safeguards would help to make it a safer place.

I will mention briefly the IMSI-catchers, because that covers my constituency of Bristol North West. It was the Bristol Cable, a local media co-operative of which I am a proud member—I pay £1 a month, so I declare an interest—that uncovered some of the issues around IMSI-catchers with bulk collection of information. It is really important that when we are having debates, as we have had with algorithms and artificial intelligence, we recognise that human intervention and the understanding of some of these systems is sometimes difficult. There are very few people who understand how algorithms actually work or how the systems actually work. As they become more advanced and learn and make decisions by themselves, the idea of human intervention or a human understanding of that is increasingly difficult.

In a situation where human resource is extremely stretched, such as in the police service, the tendency will understandably be to rely on the decisions of the systems within the frameworks that are provided, because there is not time to do full human intervention properly. That is why the safeguards are so important—to prevent things getting ahead of us. I hope the Government support the amendments, which I think are perfectly sensible.

[Victoria Atkins]

I have just a small correction. The hon. Member for Sheffield, Heeley said in error that the Home Office were holding on to the photographs. It is not the Home Office. It is individual police forces that hold that.