Data Protection Bill [HL]

Earl of Erroll Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 13th November 2017 Lords Chamber

[The Earl of Erroll (CB)]

I want to say a couple of words on consent, because it is something I have been thinking about for a while. Consent is often seen as a great panacea to this whole thing about protecting people, but I do not think it really is. The requests that really irritate me are the ones that ask for unnecessary information such as your date of birth, when all you are trying to do is to sign up for a warranty on a bit of equipment or whatever, because firms are trying to profile their customers. Those I agree should be stopped. But other consent requests are essential to giving a good service.

There are two things to say about such requests. One is that most people do not mind, because they assume that people know everything about them anyway—particularly the Government and the big boys. They just want the thing to be done properly so that they can get their money, or whatever it is. To put blocks in the way so that they have to click on or sign lots of different consent forms does not get them any further and just irritates them more. Those provisions are very sensible.

Data Protection Bill [HL]

Earl of Erroll Excerpts

Monday 13th November 2017 Lords Chamber

[Lord Patel (CB)]

My Lords, it is a pity I have to be brief, but I will try. The amendment is interesting and worth debating in greater detail than the time today allows. Remarks have already been made about the report from the Royal Society and the British Academy, which suggested setting up a body but did not define whether it ought to be statutory. It is a pity it did not because, if it had, perhaps the Government would have taken greater notice of the suggestion and taken on board what pages 81 and 82 of their manifesto said that they would do—set up a commission.

To me, there are three important things for any body that is set up. First, it must articulate and provide guidance on the rules, standards and best practices for data use, ideally covering both personal and non-personal data. I see this amendment as restrictive in that area. Secondly, it must undertake horizon scanning to identify potential ethical, social and legal issues emerging from new and innovative uses of data, including data linkage, machine learning and other forms of artificial intelligence, and establish how these should be addressed. Thirdly, and importantly, it should be aligned with, and not duplicate, the roles of other bodies, including the ICO as the data protection regulator and ethics committees making decisions about particular research proposals using people’s data. This important amendment allows us to discuss such issues and I hope we will return to it and perhaps make it wider.

Is such a body necessary? The debates we have had suggest that it might be. The Nuffield Foundation was mentioned. It has suggested that it will set up an ethics commission, and we need to know what the purpose of that will be. What would its role be in the regulatory framework, because it would not be a statutory body? I look forward to that debate but, in the meantime, I support the amendment.

[The Earl of Erroll (CB)]

My Lords, I support the amendment and its very simple principle. We live in a complex world and this tries to lay rules on a complex system. The trouble is that rules can never work because they will never cover every situation. You have to go back to the basic principles and ethics behind what is being done. If we do not think about that from time to time, eventually the rules will get completely out of kilter with what we are trying to achieve. This is essential.

[Lord Lucas]

My Lords, clearly the Royal Society has been talking to other people. I hope that someone from there is listening and will be encouraged to talk to me too. I am delighted with this amendment and think it is an excellent idea, paired with Amendment 77A, which gives individuals some purchase and the ability to know what is going on. Here we have an organisation with the ability to do something about it, not by pulling any levers but by raising enough of a storm and finding out what is going on to effect change. Amendments 77A and 78A are a very good answer to the worries we have raised in this area.

It is important that we have the ability to feel comfortable and to trust—to know that what is going on is acceptable to us. We do not want to create divisions, tensions and unhappiness in society because things are going on that we do not know about or understand. As the noble Lord said, the organisations running these algorithms do not share our values—it is hard to see that they have any values at all other than the pleasures of the few who run them. We should not submit to that. We must, in all sorts of ways, stand up to that. There are many ways in which these organisations have an impact on our lives, and we must insist that they do that on our terms. We are waking up quite slowly. To have a body such as this, based on principles and ethics and with a real ability to find out what is going on, would be a great advance. It would give me a lot of comfort about what is happening in this Bill, which otherwise is just handing power to people who have a great deal of power already.

Data Protection Bill [HL]

Earl of Erroll Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 6th November 2017 Lords Chamber

I struggle to see how any amendment can take us to where we need to be at the moment without requiring the generation, prior to the coming into force of this clause, of an evidence base to facilitate an informed determination of what the digital age of consent should be.

[The Earl of Erroll (CB)]

My Lords, we have to face the reality that children are going online at a younger and younger age, so anything that facilitates that and makes it work more sensibly is essential. We need to think about the interface with the right of erasure in Clause 44 and the clauses just after it. I am not sure whether parental consent is still required for this when someone is under 16. There have been problems where children or younger people have put images and other material online which they want removed but are far too embarrassed to tell their parents about them. The problem is that data processors are not allowed to remove them without parental consent, so the children do not tell their parents, the images stay there and a lot of trouble is caused. That area should be looked at in relation to these clauses and Clause 44. I would love to leave it to someone else to sort this out who is better qualified to deal with the legal position.

[Lord Puttnam (Lab)]

My Lords, I support this amendment and apologise to the Minister and the House for not being present at Second Reading as I was overseas. However, my noble friend Lady Jay more than adequately set out some of my concerns around Part 5 of the Bill. However, this is also a very important amendment. In the debate initiated by the noble Baroness, Lady Lane-Fox, on 7 September, the noble Baroness, Lady Kidron, said:

“There is an awkward tension in having a technology that is able to help us to confront our societal needs … and a corporate culture that aggressively balks at … long-term societal responsibilities”.—[Official Report, 7/9/17; col. 2118.]


In the end, that is precisely what this comes down to. The noble Baroness, Lady Harding, made a very important point a little earlier. She referred to barriers to entry being used by corporations to not do the things that they should do, and at the time they should do them.

Today is the 20th anniversary of my entering your Lordships’ House and, if I had to count the number of times I have been told that barriers to entry are the reason for not doing something, we would all be here all day. I well remember the noble Lord, Lord Oxburgh, who is in his place, and I having a meeting with the then Ministers for Energy and being told that “barriers to entry” were one reason that the large energy companies could not do the things that we suggested they might do at the time. Therefore the idea that the Silicon Valley companies have not reached a sufficient size or sophistication to be able to carry out the de minimis changes to their platforms—the effect of the amendment which the noble Baroness, Lady Kidron, set out so beautifully—is a nonsense. Please can the noble Lord, Lord Ashton, beg Matt Hancock, the Minister, to put to one side any more arguments about unacceptable barriers to entry being raised by this and indeed other amendments on the same subject?

Data Protection Bill [HL]

Earl of Erroll Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 30th October 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I say to my noble friend Lord McNally that it is even worse having people say to you, “You’re a lawyer, you must understand this”, when too often you do not.

I have a question for the Minister. Am I right in thinking that the Charter of Fundamental Rights will apply to all member states after Brexit? Is it not the objective that we are on all fours with them as other users of data and, therefore, if there is no provision such as the ones that we have been debating contained in the Bill, how will that affect the adequacy arrangements?

[The Earl of Erroll (CB)]

My Lords, I want to say a couple of words about privacy. A very important basic point has been raised here. I am not going to argue with lawyers about whether this is the right way in which to do it, but the right to privacy is something about which people feel very strongly—and you will also find that the Open Rights Group and other people will be very vociferous and worry about it, as should all of us here. When we go out and do things on the internet, people can form some interesting conclusions just by what we chance to browse on out of interest, if they can record that and find it out. I became very aware of this, because I have been chairing a steering group that has been producing, along with the British Standards Institution, a publicly available specification, PAS 1296, on age verification. It is designed to help business and regulators to comply with Section 3 of the Digital Economy Act, which we passed just the other day, which is about protecting children online. The point is to put age verification at the front of every website that could be a problem. We want it to be anonymous, because it is not illegal for an adult to visit sites like that; if it was recorded for certain people in certain jobs, it could destroy their careers, so it must be anonymous. So a question arises about trying to put in the specification a right to privacy.

One thing that we have to be very careful about is not to interpret laws or regulations or tread on the toes of other standards. Therefore, when this Bill and the GDPR are passed, we must make sure that people processing any of that material ensure that any data is kept completely secure, or anonymised, or is anonymous in the first place. Websites, first of all, should not know the identity of a temporary visitor when they get verified—there are ways of doing that—so that there are rights to privacy. The thing about the right to privacy is that it is a right that you, the individual, should have. The GDPR and this Bill are about how you process data; in other words, it is about what you do with the data when you have it. The legislation builds in lots of safeguards, but there is nothing that says, when you decide what data to keep or whatever it is, that people should have a right to know that it will not be revealed to the general world.

The question is where we should put it in. People used to think that Article 8 of the European Convention on Human Rights covered them, but I realised just now that it covers only your relationship with Governments. What about your relationship with other corporates, other individuals or ordinary websites? It should cover everybody. So there is an issue here that we should think about. How do we protect ourselves as individuals, and is this the right place to do it? I think that this is probably the only place where we can put something in—but I leave that to the very bright lawyers such as the noble Lord, Lord Pannick, to think about.

Telecommunications Infrastructure (Relief from Non-Domestic Rates) Bill

Earl of Erroll Excerpts

2nd reading (Hansard): House of Lords
Monday 9th October 2017 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I want to say a few words on this Bill. It is extremely welcome as the rateable value of fibre connections has long been a problem in the rollout of new systems and new local solutions. BT has for some time used it to block other providers with alternative solutions. It has been quite a problem. Several companies have gone bust over it, and there is litigation on it in the EU at the moment. One problem is that when a new company tries to put in a new solution and has to light some fibre, it is rated very highly, as if it suddenly had as many connections as that fibre could take, not the 10 or 20 subscribers the company may have to start off. Every time BT connects something new to fibre or puts new fibre down, it reduces its rate bill because of the deal that was done when it was set up by statute. Nothing has been done about this. It is inherently unfair and anticompetitive, and something needs to be done about it.

The sad thing about the Bill is that we are talking about new fibre only. What about making the old stuff competitive too, so that we can have alternative solutions? There should be an opportunity to look at that, but I suspect that good lobbying behind the scenes has made sure it will not happen.

The language of the Bill is so obscure that I find it quite difficult. The Explanatory Notes told me something about it. I am not sure whether it applies to newly laid fibre only or to dark fibre that has not been used and is about to be lit. I hope it applies to both because if fibre is already in the ground but has not been used, what is the point of forcing people to lay a new fibre cable to get it working? I cannot see why the Bill cannot be extended to make it more economic for people to attach to existing fibre to provide new local solutions where necessary. There is fibre there, but for one reason or another it is not economic for BT to do the last bit of the connection. I do not get the argument for it having to be totally new fibre.

The trouble is that BT is a publicly owned company not a UK plc asset. We have no control over BT. It has lots of problems to face. It inherited an enormous pension deficit. I have huge sympathy for its commercial problems operating in a global market. However, that does not mean that the British taxpayer, the British broadband user and people who are trying to get businesses going or to reduce the cost of government by getting broadband into areas that do not have it, such as parts of London, communities on the edges of cities and towns and certain rural areas, although some rural areas are better than others—we should not snap at little bits of the problem. We should take a bigger view. What annoys me is that if we put the amount of money we are putting into smart meters into rolling out broadband, we would have no problems and we could have smart meters everywhere. There is a lack of logical thinking at the beginning, but I am almost diverging.

I cannot work out how much power is in the hands of the Valuation Office Agency. It worries me that it tends to favour the incumbent as opposed to new development, quite aggressively in some circumstances, and, despite appeals, is not interested in increasing the rollout of broadband. It is more interested in sticking to what it sees as its rules and rating stuff like a Victorian water pipe.

I have had quite a few briefings on these issues over the years, and they give rise to concern. I hope things are going to change. This is a move in the right direction. I am still worried that Openreach is a wholly owned subsidiary of BT. When you look at how investments run and how things work up the corporate pipeline, you can influence things an amazing amount, even though you are not meant to, by where you put your investment, how you repatriate the profits, jiggle the money around et cetera. The separation may not be as great as we think.

The important thing is to get universal fast broadband out there everywhere, even in areas that do not have people living in them, because when the internet of things comes along, it will not work unless we have broadband everywhere. We need to worry about this to a greater extent than people think. It is not just a matter of cabling up every house, but that will be a start, so let us get there as quickly as possible and reduce the rates bill and the blocks to getting it out there, most of which are commercial.