Data Protection and Digital Information Bill

Debate between John Whittingdale and Carol Monaghan

Report stage
Wednesday 29th November 2023 Commons Chamber

[Sir John Whittingdale]

As the hon. Gentleman knows, I strongly share his view about the need to act against abuse of legal procedures by the Russian state. As he will appreciate, this aspect of the Bill emanated from the Home Office. However, I have no doubt that my colleagues in the Home Office will have heard the perfectly valid point he makes. I hope that they will be able to provide him with further information about it, and I will draw the matter to their attention.

I wish to say just a few more words about the biometric material received from our international partners, as a tool in protecting the public from harm. Sometimes, counter-terrorism police receive biometrics from international partners with identifiable information. Under current laws, they are not allowed to retain these biometrics unless they were taken in the past three years. That can make it harder for our counter-terrorism police to carry out their job effectively. That is why we are making changes to allow the police to take proactive steps to pseudonymise biometric data received from international partners—obviously, that means holding the material without including information that identifies the person—and hold indefinitely under existing provisions in the Counter-Terrorism Act information that identifies the person it relates to. Again, those changes have been requested by counter-terrorism police and will support them to better protect the British public.

The national underground asset register, or NUAR, is a digital map that will improve both the efficiency and safety of underground works, by providing secure access to privately and publicly owned location data about the pipes and cables beneath our feet. This will underpin the Government’s priority to get the economy growing by expediting projects such as new roads, new houses and broadband roll-out—the hon. Gentleman and I also share a considerable interest in that.

The NUAR will bring together valuable data from more than 700 public and private sector organisations about the location of underground utilities assets. This will deliver £490 million per year of economic growth, through increased efficiency, reduced asset strikes and reduced disruptions for citizens and businesses. Once operational, the running of the register will be funded by those who benefit most. The Government’s amendments include powers to, through regulations, levy charges on apparatus owners and request relevant information. The introduction of reasonable charges payable by those who benefit from the service, rather than the taxpayer, will ensure that the NUAR is a sustainable service for the future. Other amendments will ensure that there is the ability to realise the full potential of this data for other high-value uses, while respecting the rights of asset owners.

[Carol Monaghan (Glasgow North West) (SNP)]

Is any consideration given to the fact that that information could be used by bad actors? If people are able to find out where particular cables or pipes are, they also have the ability to find weakness in the system, which could have implications for us all.

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

Debate between John Whittingdale and Carol Monaghan

Committee stage
Tuesday 23rd May 2023 Public Bill Committees

[Sir John Whittingdale]

I am happy to provide the further detail that the hon. Lady has requested.

Question put and agreed to.

Clause 104 accordingly ordered to stand part of the Bill.

Clause 105

Oversight of biometrics databases

[Carol Monaghan (Glasgow North West) (SNP)]

I beg to move amendment 123, in clause 105, page 128, line 22, leave out subsections (2) and (3).

--- Later in debate ---

[Sir John Whittingdale]

I am grateful to the hon. Members for Glasgow North West and for Barnsley East for the points they have made. The hon. Member for Glasgow North West, in moving the amendment, was right to say that the clause as drafted abolishes the role of the Surveillance Camera Commissioner and the surveillance camera code that the commissioner promotes compliance with. The commissioner and the code, however, are concerned only with police and local authority use in England and Wales. Effective, independent oversight of the use of surveillance camera systems is critical to public trust. There is a comprehensive legal framework for the use of such systems, but the oversight framework is complex and confusing.

The ICO regulates the processing of all personal data by all UK organisations under the Data Protection Act; that includes surveillance camera systems operated by the police and local authorities, and the ICO has issued its own video surveillance guidance. That duplication is confusing for both the operators and the public and it has resulted in multiple and sometimes inconsistent guidance documents covering similar areas. The growing reliance on surveillance from different sectors in criminal investigations, such as footage from Ring doorbells, means that it is increasingly important for all users of surveillance systems to have clear and consistent guidance. Consolidating guidance and oversight will make it easier for the police, local authorities and the public to understand. The ICO will continue to provide independent regulation of the use of surveillance camera systems by all organisations. Indeed, the chair of the National Police Data Board, who gave evidence to the Committee, said that that will significantly simplify matters and will not reduce the level of oversight and scrutiny placed upon the police.

Amendment 123, proposed by the hon. Member for Glasgow North West, would retain the role of the Surveillance Camera Commissioner and the surveillance camera code. In our view, that would simply continue the complexity and duplication with the ICO’s responsibilities. Feedback that we received from our consultation showed broad support for simplifying the oversight framework, with consultees agreeing that the roles and responsibilities, in particular in relation to new technologies, were unclear.

The hon. Lady went on to talk about the oversight going beyond that of the Information Commissioner, but I point out that there is a comprehensive legal framework outside the surveillance camera code. That includes not only data protection, but equality and human rights law, to which the code cross-refers. The ICO and the Equality and Human Rights Commission will continue to regulate such activities. There are other oversight bodies for policing, including the Independent Office for Police Conduct and His Majesty’s inspectorate of constabulary, as well as the College of Policing, which provide national guidance and training.

The hon. Lady also specifically mentioned the remarks of the Surveillance Camera Commissioner about Chinese surveillance cameras. I will simply point out that the responsibility for oversight, which the ICO will continue to have, is not changed in any way by the Bill. The Information Commissioner’s Office continues to regulate all organisations’ use of surveillance cameras, and it has issued its own video surveillance guidance.

New clause 17 would transfer the functions of the commissioner to the Investigatory Powers Commissioner. As I have already said, we believe that that would simply continue to result in oversight resting in two different places, and that is an unnecessary duplication. The Investigatory Powers Commissioner’s Office oversees activities that are substantially more intrusive than those relating to overt surveillance cameras. IPCO’s existing work requires it to oversee over 600 public authorities, as well as several powers from different pieces of legislation. That requires a high level of expertise and specialisation to ensure effective oversight.

For those reasons, we believe that the proposals in the clause to bring the oversight functions under the responsibility of the Information Commissioner’s Office will not result in any reduction in oversight, but will result in the removal of duplication and greater clarity. On that basis, I am afraid that I am unable to accept the amendment, and I hope that the hon. Lady will consider withdrawing it.

[Carol Monaghan]

I thank the Minister for responding to my amendments. However, we have a situation where we are going from having a specialist oversight to a somewhat more generalist oversight. That cannot be good when we are talking about this fast-moving technology. I will withdraw my amendment for the moment, but I reserve the right to bring it back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 ordered to stand part of the Bill.

Clause 106

Oversight of biometrics databases

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

Debate between John Whittingdale and Carol Monaghan

Committee stage
Thursday 18th May 2023 Public Bill Committees

[Sir John Whittingdale]

Obviously that is a matter for the Information Commissioner, but that is the overriding principal objective. I am about to set out some of the other objectives that the clause will introduce, but it is made very clear that the principal objective is to ensure the appropriate level of protection. Precisely how the Information Commissioner interprets “appropriate level of protection” is a matter for him, but I think it is fairly clear what that should entail, as he himself set out in his evidence.

As I have said, clause 27 introduces new duties that the commissioner must consider where they are relevant to his work in carrying out data protection functions: the desirability of promoting innovation and competition; the importance of the prevention, investigation, detection and prosecution of criminal offences; the need to safeguard public security and national security; and, where necessary, the need to consult other regulators when considering how the ICO’s work may affect economic growth, innovation and competition. There is also the statement of strategic priorities, which is introduced by clause 28. However, as I have indicated to the hon. Member for Newcastle upon Tyne Central, the commissioner will be clear that his primary focus should be to achieve the principal objective.

Clause 27 also introduces new reporting requirements for the commissioner in relation to the strategic framework. The commissioner will be required to publish a forward-looking strategy outlining how he intends to meet the new principal objective and duties, as well as pre-existing duties in the Deregulation Act 2015 and the Legislative and Regulatory Reform Act 2006.

Finally, the commissioner will be required to publish a review of what he has done to comply with the principal objective, and with the new and existing duties, in his annual report.

[Carol Monaghan (Glasgow North West) (SNP)]

I wonder whether part of the strategy might include a list of fees that could potentially be charged for accessing data. This idea of fees seems to be quite vague in terms of amounts and levels, so it would be useful to have some more information on that.

[Sir John Whittingdale]

I think we will come on to some of the questions around the fees that are potentially payable, particularly by those organisations that may be required to provide more evidence, and the costs that that could entail. I will return to that subject shortly.

The new strategic framework acknowledges the breadth of the ICO’s remit and its impact on other areas. We believe that it will provide clarity for the commissioner, businesses and the general public on the commissioner’s objectives and duties. I therefore commend clause 27 to the Committee.

--- Later in debate ---

[Carol Monaghan]

I am looking for some clarification from the Minister. Under clause 39, it says:

“A controller must facilitate the making of complaints…such as providing a complaint form which can be completed electronically and by other means.”

Can the Minister clarify whether every data controller will have to provide an electronic means of making a complaint? For many small data controllers, which would include many of us in the room, providing an electronic means of complaint might require additional expertise and cost that they may not have. If it said, “and/or by other means”, which would allow a data controller to provide a paper copy, that might provide a little more reassurance to data controllers.

[Sir John Whittingdale]

Let me address the point of the hon. Member for Glasgow North West first. The intention of the clause is to ensure that complainants go first to the data controller, and the data controller makes available a process whereby complaints can be considered. I certainly fully understand the concern of the hon. Lady that it should not prove burdensome, particularly for small firms, and I do not believe that it would necessarily require an electronic means to do so. If that is not the case, I will tell her, but it seems to me that the sensible approach would be for data controllers to have a process that the Information Commissioner will accept is available to complainants first, before a complaint is possibly escalated to the next stage.

With regard to the point of the hon. Member for Barnsley East, we have debated previously the change in the threshold to “vexatious” and “excessive”, and we may continue to disagree on that matter.

Question put and agreed to.

Clause 39 accordingly ordered to stand part of the Bill.

Clauses 40 and 41 ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 42

Consequential amendments to the EITSET Regulations

Amendment made: 47, Clause 42, page 72, line 12, at end insert—

“(7A) In paragraph 13 (modification of section 155 (penalty notices)), in sub-paragraph (3)(c), for “for “data subjects”” there were substituted “for the words from “data subjects” to the end”.”.—(Sir John Whittingdale.)

This amendment inserts an amendment of Schedule 2 to the EITSET Regulations which is consequential on the amendment of section 155(3)(c) of the Data Protection Act 2018 by Schedule 4 to the Bill.

Clause 42, as amended, ordered to stand part of the Bill.

Clause 43

Protection of prohibitions, restrictions and data subject’s rights

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

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

Debate between John Whittingdale and Carol Monaghan

Committee stage
Tuesday 16th May 2023 Public Bill Committees

[Carol Monaghan (Glasgow North West) (SNP)]

I rise to speak to my amendment 120. The explanatory notes to the Bill clarify that newly permitted automated decisions will not require the existing legal safeguard of notification, stating only:

“Where appropriate, this may include notifying data subjects after such a decision has been taken”.

Clause 11 would replace article 22 of the GDPR, which regulates AI decision making, with new articles 22A to 22D. According to Connected by Data, it is built on the faulty assumption that the people who are affected by automated decision making are data subjects—identifiable individuals within the data used to make the automated decision. However, now that AI decisions can be based on information about other people, it is becoming increasingly common for algorithms created through training on one set of people to be used to reach conclusions about another set.

A decision can be based on seemingly innocuous information such as someone’s postcode or whether they liked a particular tweet. Where such a decision has an impact on viewing recommendations for an online player, we would probably not be that concerned, but personal data is being used more and more to make decisions that affect whole groups of people rather than identified individuals. We need no reminding of the controversy that ensued when Ofqual used past exam results to grade students during the pandemic.

Another example might be an electricity company getting data from its customers about home energy consumption. Based on that data, it could automatically adjust the time of day at which it offered cheaper tariffs. Everyone who used the electricity company would be affected, whether data about their energy consumption patterns were used to make the decision or not. It is whether an automated decision has a legal or similarly significant effect on an individual that should be relevant to their rights around automated decision making.

Many of the rights and interests of decision subjects are protected through the Equality Act 2010, as the Committee heard in oral evidence last week. What is not covered by other legislation, however, is how data can be used in automated decisions and the rights of decision subjects to be informed about, control and seek redress around automated decisions with a significant effect on them. According to Big Brother Watch:

“This is an unacceptable dilution of a critical safeguard that will not only create uncertainty for organisations seeking to comply, but could lead to vastly expanded ADM operating with unprecedented opacity.”

Amendment 120 would require a data controller to inform a data subject whenever a significant decision about that subject was based solely on automated processing. I am pleased that the hon. Member for Barnsley East has tabled a similar amendment, which I support.

[Sir John Whittingdale]

The Government absolutely share hon. Members’ view of the importance of transparency. We agree that individuals who are subject to automated decision making should be made aware of it and should have information about the available safeguards. However, we feel that those requirements are already built into the Bill via article 22C, which will ensure that individuals are provided with information as soon as is practicable after such decisions have been taken. This will need to include relevant information that an individual would require to contest such decisions and seek human review of them.

The reforms that we propose take an outcome-focused approach to ensure that data subjects receive the right information at the right time. The Information Commissioner’s Office will play an important role in elaborating guidance on what that will entail in different circumstances.

--- Later in debate ---

[Carol Monaghan]

Of course, the reports on incidents such as those at Fishmongers’ Hall and the Manchester Arena pointed to a general lack of effective collaboration between security forces and the police. It was not data that was the issue; it was collaboration.

[Sir John Whittingdale]

I certainly accept that greater collaboration would have been beneficial as well, but there was a problem with data sharing and that is what the clause is designed to address.

As the hon. Member for Barnsley East will know, law enforcement currently operates under part 3 of the Data Protection Act when processing data for law enforcement purposes. That means that even when they work together, law enforcement and the intelligence services must each undertake separate assessments regarding the same joint-working processing.

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

Debate between John Whittingdale and Carol Monaghan

Committee stage
Tuesday 16th May 2023 Public Bill Committees

[Stephanie Peacock]

The impact of clause 9 and the concerns around it should primarily be understood in relation to the definition contained in clause 2, so I refer hon. Members to my remarks in the debate on clause 2. I also refer them to my remarks on purpose limitation in clause 6. To reiterate both in combination, I should say that purpose limitation exists so that it is clear why personal data is being collected, and what the intention is behind its use. That means that people’s data should not largely be reused in ways not initially collected for, unless a new legal basis is obtained.

It is understandable that, where genuine scientific, historical and statistical research is occurring, and there is disproportionate effort to provide the information required to data subjects, there may be a need for exemption and to reuse data without informing the subject. However, that must be done only where strictly necessary. We must be clear that, unless there are proper boundaries to the definition of scientific data, this could be interpreted far too loosely.

I am concerned that, without amendment to clause 2, clause 9 could extend the problem of scientific research being used as a guise for using people’s personal data in malicious or pseudoscientific ways. Will the Minister tell us what protections will be in place to ensure that people’s data is not reused on scientific grounds for something that they would otherwise have objected to?

On clause 10, I will speak more broadly on law enforcement processing later in the Bill, but it is good to have clarity on the legal professional privilege exemptions. I have no further comments at this stage.

[Carol Monaghan (Glasgow North West) (SNP)]

What we are basically doing is changing the rights of individuals, who would previously have known when their data was used for a purpose other than that for which it was collected. The terms

“scientific or historical research, the purposes of archiving in the public interest or statistical purposes”

are very vague, and, according to the Public Law Project, open to wide interpretation. Scientific research is defined as

“any research that can reasonably described as scientific, whether publicly or privately funded”.

I ask the Minister: what protections are in place to ensure that private companies are not given, through this clause, a carte blanche to use personal data for the purpose of developing new products, without the need to inform the data subject?

[Sir John Whittingdale]

These clauses relate to one of the fundamental purposes of the Bill, which is to facilitate genuine scientific research—obviously, that carries with it huge potential benefits in the areas of tackling disease or other scientific advances. We debated the definition of scientific research earlier in relation to clause 2. We believe that the definition is clear. In this particular case, the use of historical data can be very valuable. It is simply impractical for some organisations to reobtain consent when they may not even know where original data subjects are now located.

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

Debate between John Whittingdale and Carol Monaghan

Committee stage
Wednesday 10th May 2023 Public Bill Committees

[Sir John Whittingdale]

Q Thank you. Mr Combemale, will you set out some of the obstacles for your organisation, and how you would like the Bill to reduce them?

Chris Combemale: I think the single biggest one that has troubled our members since the implementation of GDPR is the issue around legitimate interest, which was raised by the hon. Member for Folkestone and Hythe. The main issue is that GDPR contains six bases of data processing, which in law are equal. For the data and marketing industry, the primary bases are legitimate interest and consent. For some reason it has become widely accepted through the implementation of GDPR that GDPR requires consent for marketing and for community activities. I am sure that you hear in your constituencies of many community groups that feel that they cannot go about organising local events because they must have consent to communicate. That has never been the intention behind the legislation; in fact, the European Court of Justice has always ruled that any legal interest could be a legitimate interest, including advertising and marketing.

If you look at what we do, which is effectively finding and retaining customers, the GDPR legislation says in recital 4 that privacy is a fundamental right, not an absolute right, and must be balanced against other rights, such as the right to conduct a business. You cannot conduct a business without the right to find and retain customers, just as you cannot run a charity without the right to find donors and volunteers who provide the money and the labour for your good cause. The clarification is really important across a wide range of use cases in the economy, but particularly ours. It was recognised in GDPR in recital 47. What the legislation does is give illustrative examples that are drawn from recitals 47, 48 and 49. They are not new examples; they are just given main text credibility. It is an illustrative list. Really, any legal interest could be a legitimate interest for the purpose of data providing, subject to necessity and proportionality, which we discussed earlier with the Information Commissioner.

[Carol Monaghan]

Q We have heard already this morning that a number of words and phrases could have some ambiguity associated with them, such as the word “excessive”, and the Bill allowing certain cookies that are “low risk”. Do you think that the phrase “low risk” is well enough understood?

Chris Combemale: In the sector that I represent, we have a fairly clear understanding of the gradients of risk. As I was saying earlier, many companies do not share data with other companies. They are interested solely in the relationships that they have with their existing customers or prospects. In that sense, all the customer attitudes to privacy research that we do indicates that people are generally comfortable sharing data with companies they trust and do business with regularly.