Data Protection Bill [Lords] (Fourth sitting)

Liam Byrne Excerpts

Thursday 15th March 2018 Public Bill Committees

[Victoria Atkins]

I will give an example first, because I think it is so important. I fear that a bit of misunderstanding has crept in. Let us take the example of a subject access request. Mr Smith asks an intelligence service whether it is processing personal data concerning him and, if so, for information about that data under clause 94. The intelligence service considers whether it is processing personal data, which it will have obtained under its other statutory powers, such as the Regulation of Investigatory Powers Act 2000 or the Investigatory Powers Act 2016.

If the agency determines that it is processing personal data relating to Mr Smith, it then considers whether it is able to disclose the data, or whether a relevant exemption is engaged. For the agency, the key consideration will be whether disclosing the data would damage national security, for example by disclosing sensitive capabilities or alerting Mr Smith to the fact that he is a subject of investigation. If disclosure does not undermine national security and no other exemption is relevant, the intelligence service must disclose the information. However, if national security would be undermined by disclosure, the agency will need to use the national security exemption in relation to processing any personal data relating to Mr Smith.

If the intelligence service does not process any personal data relating to Mr Smith, it will again have to consider whether disclosing that fact would undermine national security, for example by revealing a lack of capability, which could be exploited by subjects of investigation. That is why, on occasion, when such requests are made, a “neither confirm nor deny” response may be necessary, because either confirming or denying may in itself have ramifications, not only in relation to Mr Smith but in relation to other aspects of national security.

Mr Smith may complain to the Information Commissioner about the response to his request for information. The intelligence service may then be required to demonstrate to the commissioner that the processing of personal data complies with the requirements of part four of the Bill, as set out in clause 102, and that it has responded to the request for information appropriately.

If, in legal proceedings, Mr Smith sought to argue that the national security exemption had been improperly relied upon, a national security certificate could be used as conclusive evidence that the national security exemption was required to safeguard national security. Any person who believed they were directly affected by the certificate could of course appeal against it to the upper tribunal, as set out in clause 111.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

The Minister is setting out the mechanics of the system with admirable clarity. The point in dispute, though, is not the mechanics of the process but whether the data controller is able—unilaterally, unchecked and unfettered—to seek a national security exemption. Anyone who has worked with the intelligence agencies, either as a Minister or not, knows that they take parliamentary oversight and the defence of parliamentary supremacy extremely seriously.

What we are seeking with this amendment is to ensure that a data controller does not issue a national security certificate unchecked, and that instead there is an element of judicial oversight. The rule of law is important. It should be defended, protected and enhanced, especially when the data collection powers of the intelligence services are so much greater than they were 30 years ago when data protection legislation was first written.

[Victoria Atkins]

The Government fully accept that national security certificates should be capable of being subject to judicial oversight. Indeed, the current scheme—both under the 1998 Act and this Bill—provides for just that. However, the amendments would radically change the national security certificate regime, because they would replace the existing scheme with one that required a Minister of the Crown to apply to a judicial commissioner for a certificate if an exemption was sought for the purposes of safeguarding national security, and for a decision to issue a certificate to be approved by a judicial commissioner.

This, again, is the debate that we had when we were considering the Investigatory Powers Act 2016. There were some who would have preferred a judicial commissioner to make the decision about warrantry before the Secretary of State. However, Parliament decided that it was not comfortable with that, because it would have meant a great change. For a member of the judiciary to certify on national security issues, rather than a member of the Executive—namely the Prime Minister or a Secretary of State—would have great constitutional implications.

There were great debates about the issue and the House decided, in its wisdom, that it would maintain the constitutional tradition, which is that a member of the Executive has the ultimate responsibility for national security, with, of course, judicial oversight by judicial commissioners and by the various tribunals that all these powers are subject to. The House decided that the decision itself must be a matter for a Minister of the Crown, because in the event—God forbid—that there is a national security incident, the House will rightly and properly demand answers from the Government of the day. With the greatest respect, a judicial commissioner cannot come to the Dispatch Box to explain how the Government and those assisting them in national security matters have responded to that situation. That is why we have this fine constitutional balance, and why we have adopted in the Bill the regime that has been in place for 30 years.

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[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.

[Liam Byrne]

I have spoken to the outgoing Council of Europe information commissioner about the issue, and he has put on the record his grave reservations about the regime that we have in place, because we simply do not have the right kind of judicial oversight of the information gathering powers that are now available to our intelligence services. Our intelligence services are very good, and they need to be allowed to do their job, but they will be allowed to do that job more effectively—and without additional risks to our adequacy—if there is some kind of judicial oversight in the right timeframe of the decisions that are taken.

[Victoria Atkins]

That is where the distinction between obtaining information and processing it is so important. The gathering that the right hon. Gentleman refers to falls under the Investigatory Powers Act 2016. Retaining it and processing it in the ways that the Bill seeks to provide for is the data protection element. The 2016 Act has all the extra judicial oversights that have been passed by the House.

[Liam Byrne]

Quite helpfully, we are coming to the nub of the question. It is now incumbent on the Minister to lay out for the Committee why the oversight regime for obtaining information should be so remarkably different from the regime for processing it.

[Victoria Atkins]

The obtaining of information is potentially intrusive and often extremely time-sensitive. For the processing of information, particularly in the case of a subject access request, once we have met the criteria for obtaining it, separate judicial oversight through the upper tribunal is set out in the Bill, as well as ministerial oversight. They are two separate regimes.

There is extra oversight in the 2016 Act because obtaining information can be so intrusive. The right hon. Gentleman will appreciate that I cannot go into the methodology—I am not sure I am security-cleared enough to know, to be honest—but obtaining information has the potential to be particularly intrusive, in a way that processing information gathered by security service officials may not be.

[Liam Byrne]

I reassure the Minister that I went through the methodologies during my time at the Home Office. The justification that she still needs to lay out for the Committee—she is perhaps struggling to do so—is why there should be one set of judicial oversight arrangements for obtaining information and another for processing it. Why are they not the same?

[Victoria Atkins]

There might be many reasons why we process information. The end result of processing might be for national security reasons or law enforcement reasons—my officials are scribbling away furiously, so I do not want to take away their glory when they provide me with the answer.

I have an answer on the Watson case, raised by the hon. Member for Sheffield, Heeley, which dealt with the retention of communications by communications service providers. Again, that is an entirely different scenario from the one we are talking about, where the material is held by the security services.

Amendment 161 goes further than the 2016 Act, because it places the decision to issue a certificate with the judicial commissioner. As I have said, national security certificates come into play only to serve in legal proceedings as conclusive evidence that an exemption from specified data protection requirements is necessary to protect national security—for example, to prevent disclosure of personal data to an individual under investigation, when such disclosure would damage national security. The certificate does not authorise the required use of the national security exemption, which is properly a matter for the data controller to determine.

Amendments 163 and 164 relate to the form of a national security certificate. Amendment 163 would require a detailed rather than general description of the data identified on a national security certificate, but we believe this change to be unnecessary and unhelpful, given that much data can be adequately described in a general way. Amendment 164, which would prevent a certificate from having prospective effect, appears to be dependent on the prior judicial authorisation scheme proposed in amendments 161 and 162, and again contrasts with the prospective nature of certificates currently under the Data Protection Act 1998.

Prospective certificates of the type issued under the 1998 Act are the best way of ensuring that the use of the national security exemption by the intelligence services and others is both sufficiently foreseeable for the purposes of article 8 of the European convention on human rights, and accountable. The accountability is ensured by the power to challenge certificates when they are issued, and that is something that has real teeth. The accountability is strengthened by the provision in clause 130 for the publication of certificates. The documents we are discussing will therefore be in the public domain—indeed, many of them are already. But it will now be set out in statute that they should be in the public domain.

Amendments 166 to 168 relate to the appeals process. Amendment 166 would broaden the scope for appealing a national security certificate from a person “directly affected” by it to someone who

“believes they are directly or indirectly affected”

by it. I wonder whether the Opposition did any work on the scope of the provision when drafting it, because the words “indirectly affected” have the potential to cause an extraordinary number of claims. How on earth could that phrase be defined in a way that does not swamp the security services with applications from people who consider that they might be indirectly affected by a decision relating to a national security matter? I do not see how that can be considered practicable.

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[Victoria Atkins]

On the judicial review point, the test was debated at length in the Joint Committee, in the Public Bill Committee and on the Floor of the House. The House passed that Act with cross-party consensus, as my hon. Friend has said, so I do not understand why we are having the same debate.

[Liam Byrne]

Anyone who has spent time working with our intelligence agencies knows that they see their mission as the defence of parliamentary democracy. They believe in scrutiny and oversight, which is what we are trying to insert in the Bill. The reason the Investigatory Powers Bill was passed in that way was because we were successful in ensuring that there were stronger safeguards. The Minister has been unable to explain today why the safeguarding regime should be different for the processing of data as opposed to the obtaining of data. We have heard no convincing arguments on that front today. All that we are seeking to do is protect the ability of the intelligence agencies to do their job by ensuring that a guard against the misuse of their much broader powers is subject to effective judicial oversight, and not in public but in a court.

[Victoria Atkins]

For the security services to have obtained data under the Investigatory Powers Act, they will have passed through the various safeguards that Parliament set out in that Act. Once that data is obtained, it follows that the permission that the judicial commissioner will have reviewed will still flow through to the processing of that information. Our concern here is certain requirements of the data protection regime. The decision to disseminate information under that regime must rest with the intelligence agencies, with oversight. The Bill provides for those decisions to be appealed. That is as it should be. It should not be for a judicial commissioner to take over the decision of the data controller, who is processing applications and information in real time, often in situations that require them to act quickly. Likewise, whether to grant a certificate, which will be in the public domain, must be a decision for a member of the Executive, not the judiciary.

I assume that no work has been done to measure the scope of amendment 166, but allowing the clause to cover people indirectly affected could have enormous consequences for the security services, which already face great pressures and responsibilities.

Amendments 167 and 168 would remove the application of judicial review principles by the upper tribunal when considering an appeal against a certificate. They would replace the “reasonable grounds for issuing” test with a requirement to consider whether issuing a certificate was necessary and proportionate. Again, that would be an unnecessary departure from the existing scheme, which applies the judicial review test and has worked very well for the past 30 years.

In applying judicial review principles, the upper tribunal can consider a range of issues, including necessity, proportionality and lawfulness. As we set out in our response to the report of the House of Lords Constitution Committee, that enables the upper tribunal to consider matters such as whether the decision to issue the certificate was reasonable, having regard to the impact on the rights of the data subject and the need to safeguard national security. The Bill makes it clear that the upper tribunal has the power to quash the certificate if it concludes that the decision to issue it was unreasonable.

I hope that I have answered the concerns of the right hon. Member for Birmingham, Hodge Hill about how certificates are granted and about the review process when a subject access request is made and the certificate is applied. We must recognise that the Bill does not weaken a data subject’s rights or the requirements that must be met if an exemption is to be relied on; it reflects the past 30 years of law. Perhaps I missed it, but I do not think that any hon. Member has argued that the Data Protection Act 1998 has significant failings.

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[Liam Byrne]

As the Minister well knows, the debate internationally is a result of the radical transformation of intelligence agencies’ ability to collect and process data. There is an argument, which has been well recognised in the Council of Europe and elsewhere, that where powers are greater, oversight should be stronger.

[Victoria Atkins]

Yes, and that is precisely why Parliament passed the Investigatory Powers Act 2016.

[Liam Byrne]

It is about obtaining information, not processing it.

[Victoria Atkins]

The safeguards that apply once the information has been obtained—

[Liam Byrne]

There aren’t any safeguards!

[The Chair]

Order. I realise that the right hon. Gentleman feels strongly about the issue, but if he wishes to intervene, he must stand. If not, he must remain quiet and take it on the chin.

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[The Chair]

Members will note that there are a number of clauses on the selection list to which no amendments have been tabled. I propose to start grouping such clauses together in order to speed progress. However, Members still have the right to tell me that they wish to speak to, or vote on, an individual clause.

Clauses 28 and 29 ordered to stand part of the Bill.

Clause 30

Meaning of “competent authority”

Amendments made: 18, in clause 30, page 19, line 4, after “specified” insert “or described”.

This amendment changes a reference to persons specified in Schedule 7 into a reference to persons specified or described there.

Amendment 19, in clause 30, page 19, line 10, leave out from “add” to end of line and insert

“or remove a person or description of person”.—(Margot James.)

This amendment makes clear that regulations under Clause 30 may identify a person by describing a type of person, as well as by specifying a person.

Clause 30, as amended, ordered to stand part of the Bill.

Schedule 7 agreed to.

Clauses 31 to 34 ordered to stand part of the Bill.

Clause 35

The first data protection principle

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

[Liam Byrne]

Very briefly, subsection (1) includes the phrase

“must be lawful and fair”.

Could the Minister say a little more about the word “fair”? What definition is she resting on, and who is the judge of it?

[Victoria Atkins]

“Lawful” means any processing necessary to carry out a particular task, where that task is authorised either by statute or under common law. It would cover, for example, the taking and retention of DNA and fingerprints under the Police and Criminal Evidence Act 1984, or the police’s common law powers to disclose information required for the operation of the domestic violence disclosure scheme.

The Government recognise the importance of safeguarding sensitive personal information about individuals. Subsections (3) to (5) therefore restrict the processing of sensitive data, the definition of which includes information about an individual’s race or ethnic origin, and biometric data such as their DNA profile and fingerprints.

Further safeguards for the protection of sensitive personal data are set out in clause 42. The processing of sensitive personal data is permitted under two circumstances. The first is where the data subject has given his or her consent. The second is where the processing is strictly necessary for a law enforcement purpose and one or more of the conditions in schedule 8 to the Bill has been met. Those conditions include, for example, that the processing is necessary to protect the individual concerned or another person, or is necessary for the administration of justice. In both cases, the controller is required to have an appropriate policy document in place. We will come on to the content of such policy documents when we debate clause 42.

[Liam Byrne]

I am grateful for the Minister’s extensive definition, given in response to a question I did not ask. I did not ask for the definition of “lawful” but for the definition of “fair”.

[Victoria Atkins]

I am so sorry; I thought it was apparent from my answer. “Fair” is initially a matter for the data controller, but ultimately the Information Commissioner has oversight of these provisions and the commissioner will cover that in her guidance.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Schedule 8

Conditions for sensitive processing under Part 3

Amendment made: 116, in schedule 8, page 184, line 32, at end insert—

“Safeguarding of children and of individuals at risk

3A (1) This condition is met if—

(a) the processing is necessary for the purposes of—

(i) protecting an individual from neglect or physical, mental or emotional harm, or

(ii) protecting the physical, mental or emotional well-being of an individual,

(b) the individual is—

(i) aged under 18, or

(ii) aged 18 or over and at risk,

(c) the processing is carried out without the consent of the data subject for one of the reasons listed in sub-paragraph (2), and

(d) the processing is necessary for reasons of substantial public interest.

(2) The reasons mentioned in sub-paragraph (1)(c) are—

(a) in the circumstances, consent to the processing cannot be given by the data subject;

(b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing;

(c) the processing must be carried out without the consent of the data subject because obtaining the consent of the data subject would prejudice the provision of the protection mentioned in sub-paragraph (1)(a).

(3) For the purposes of this paragraph, an individual aged 18 or over is “at risk” if the controller has reasonable cause to suspect that the individual—

(a) has needs for care and support,

(b) is experiencing, or at risk of, neglect or physical, mental or emotional harm, and

(c) as a result of those needs is unable to protect himself or herself against the neglect or harm or the risk of it.

(4) In sub-paragraph (1)(a), the reference to the protection of an individual or of the well-being of an individual includes both protection relating to a particular individual and protection relating to a type of individual.”—(Victoria Atkins.)

Schedule 8 makes provision about the circumstances in which the processing of special categories of personal data is permitted. This amendment adds to that Schedule certain processing of personal data which is necessary for the protection of children or of adults at risk. See also Amendments 85 and 117.

Schedule 8, as amended, agreed to.

Clauses 36 to 40 ordered to stand part of the Bill.

Clause 41

Safeguards: archiving

Amendment made: 20, in clause 41, page 23, line 34, leave out “an individual” and insert “a data subject”.—(Victoria Atkins.)

Clause 41 makes provision about the processing of personal data for archiving purposes, for scientific or historical research purposes or for statistical purposes. This amendment aligns Clause 41(2)(b) with similar provision in Clause 19(2).

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

[Liam Byrne]

We had a good debate on what I think was a shared objective across the Committee: to ensure that those running our big national archives—whether they are large or small organisations—should not be jeopardised by frivolous claims or, indeed, a multiplicity of claims from individuals who might seek to change the records held there in one way or another. I mentioned to the Minister in an earlier debate that we were anxious, despite the reassurances she sought to give the Committee, that a number of organisations, including the BBC, were deeply concerned about the Bill’s impact on their work. They were not satisfied that the exemptions and safeguards in the Bill would quite do the job.

My only reason for speaking at this stage is to suggest to Ministers that if they were to have discussions with some of those organisations about possible Government amendments on Report to refine the language, and provide some of the reassurance people want, that would attract our support. We would want to have such conversations, but it would be better if the Government could find a way to come forward with refinements of their own on Report.

[Victoria Atkins]

I am happy to explore that. The reason for the clause is to enable processing to be done to create an archive for scientific or historical research, or for statistical purposes. The reason law enforcement is mentioned is that it may be necessary where a law enforcement agency needs to review historic offences, such as allegations of child sexual exploitation. I would of course be happy to discuss that with the right hon. Gentleman to see whether there are further avenues down which we should proceed.

[Liam Byrne]

I am grateful to the Minister for that response. I am happy to write to her with the representations that we have received, and perhaps she could reflect on those and write back.

Question put and agreed to.

Clause 41, as amended, accordingly ordered to stand part of the Bill.

Clause 42

Safeguards: sensitive processing

Amendment made: 21, in clause 42, page 24, line 29, leave out “with the day” and insert “when”.—(Victoria Atkins.)

This amendment is consequential on Amendment 71.

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

Clauses 43 to 46 ordered to stand part of the Bill.

Clause 47

Right to erasure or restriction of processing

[Victoria Atkins]

I beg to move amendment 22, in clause 47, page 28, line 20, leave out second “data”.

This amendment changes a reference to a “data controller” into a reference to a “controller” (as defined in Clauses 3 and 32).

I can be brief, because this drafting amendment simply ensures that clause 47, as with the rest of the Bill, refers to a “controller” rather than a “data controller”. For the purposes of part 3, a controller is defined in clause 32(1) so it is not necessary to refer elsewhere to a “data controller”.

Amendment 22 agreed to.

Clause 47, as amended, ordered to stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Clause 49

Right not to be subject to automated decision-making

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

[Liam Byrne]

We had a good debate on possible amendments to the powers of automatic decision making earlier and this is an important clause in that it creates a right not to be subject to automated decision making. Clause 49(1) states:

“A controller may not take a significant decision based solely on automated processing unless that decision is required or authorised by law.”

I hope Ministers recognise that

“required or authorised by law”

is an incredibly broad set of questions. I would like to provoke the Minister into saying a little more about what safeguards she believes will come into place to ensure that decisions are not taken that jeopardise somebody’s human rights and their right to appeal and justice based on those human rights. It could be that the Minister decides to answer those questions in the debate on clause 50, but it would be useful for her to say a little more about her understanding of the phrase “significant decision” and a little more about what kind of safeguards will be needed to ensure that decisions that are cast in such a broad way do not impact on people in a negative way.

[Victoria Atkins]

Clause 49 establishes the right for individuals not to be subject to a decision based exclusively on automated processing, where that decision has an adverse impact on the individual. It is important to protect that right to enhance confidence in law enforcement processing and safeguard individuals against the risk that a potentially damaging decision is taken without human intervention. The right hon. Gentleman asked about the definition of a significant decision. It is set out in the Bill.

We are not aware of any examples of the police solely using automated decision-making methods, but there may be examples in other competent authorities. The law enforcement directive includes that requirement, so we want to transpose it faithfully into statute, and we believe we have captured the spirit of the requirement.

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[Victoria Atkins]

I wonder whether that is captured in the spirit of the Bill. Forgive me, Mr Hanson. This is my first Bill Committee as a Minister and I was not aware of that. Many apologies.

I am not familiar with that example. It would be a very interesting exercise under the PACE custody arrangements. I will look into it in due course. These protections transpose the law enforcement directive, and we are confident that they meet those requirements.

Question put and agreed to.

Clause 49 accordingly ordered to stand part of the Bill.

Clause 50

Automated decision-making authorised by law: safeguards

Amendments made: 23, in clause 50, page 30, line 11, leave out “21 days” and insert “1 month”.

Clause 50(2)(b) provides that where a controller notifies a data subject under Clause 50(2)(a) that the controller has taken a “qualifying significant decision” in relation to the data subject based solely on automated processing, the data subject has 21 days to request the controller to reconsider or take a new decision not based solely on automated processing. This amendment extends that period to one month.

Amendment 24, in clause 50, page 30, line 17, leave out “21 days” and insert “1 month”.—(Victoria Atkins.)

Clause 50(3) provides that where a data subject makes a request to a controller under Clause 50(2)(b) to reconsider or retake a decision based solely on automated processing, the controller has 21 days to respond. This amendment extends that period to one month.

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

[Liam Byrne]

I remain concerned that the safeguards the Government have proposed to ensure people’s human rights are not jeopardised by the use of automated decision making are, frankly, not worth the paper they are written on. We know that prospective employers and their agents use algorithms and automated systems to analyse very large sets of data and, through the use of artificial intelligence and machine learning, make inferences about whether people are appropriate to be considered to be hired or retained by a particular company. We have had a pretty lively debate in this country about the definition of a worker, and we are all very grateful to Matthew Taylor for his work on that question. Some differences emerged, and the Business, Energy and Industrial Strategy Committee has put its views on the record.

The challenge is that our current labour laws, which were often drafted decades ago, such as the Sex Discrimination Act 1975 and the Race Relations Act 1965, are no longer adequate to protect people in this new world, in which employers are able to use such large and powerful tools for gathering and analysing data, and making decisions.

We know that there are problems. We already know that recruiters use Facebook to seek candidates in a way that routinely discriminates against older workers by targeting job advertisements. That is not a trivial issue; it is being litigated in the United States. In the United Kingdom, research by Slater and Gordon, a group of employment lawyers, found that one in five bosses admits to unlawful discrimination when advertising jobs online. Women and people over 50 are most likely to be stopped from seeing an advert. Around 32% of company executives admitted to discriminating among those over 50; 23% discriminated against women; and 62% of executives who had access to profiling tools admitted to using them to actively seek out people based on criteria such as age, gender and race. Female Uber drivers earn 7% less than men when pay is determined by algorithms. A number of practices in the labour market are disturbing and worrying, and they should trouble all of us.

The challenge is that clause 50 needs to include a much more comprehensive set of rights and safeguards. It should clarify that the Equality Act 2010 and protection from discrimination applies to all new forms of decision making that engage core labour rights around recruitment, terms of work or dismissal. There should be new rights about algorithmic fairness at work to ensure equal treatment where an algorithm or automated system takes a decision that impinges on someone’s rights. There should be a right to explanation where significant decisions are taken based on an algorithm or an automated decision. There is also a strong case to create a duty on employers, if they are a large organisation, to undertake impact assessments to check whether they are, often unwittingly, discriminating against people in a way that we think is wrong.

Over the last couple of weeks, we have seen real progress in the debate about gender inequalities in pay. Many of us will have looked in horror at some of the news that emerged from the BBC and at some of the evidence that emerged from ITV and The Guardian. We have to contend with the reality that automated decision-making processes are under way in the labour market that could make inequality worse rather than better. The safeguards that we have in clause 50 do not seem up to the job.

I hope the Minister will say a bit more about the problems that she sees with future algorithmic decision making. I am slightly troubled that she is unaware of some live examples in the Home Office space in one of our most successful police forces, and there are other examples that we know about. Perhaps the Minister might say more about how she intends to improve the Bill with regard to that issue between now and Report.

[Victoria Atkins]

I will pick up on the comments by the right hon. Gentleman, if I may.

In the Durham example given by the hon. Member for Sheffield, Heeley, I do not understand how a custody sergeant could sign a custody record without there being any human interaction in that decision-making process. A custody sergeant has to sign a custody record and to review the health of the detainee and whether they have had their PACE rights. I did not go into any details about it, because I was surprised that such a situation could emerge. I do not see how a custody sergeant could be discharging their duties under the Police and Criminal Evidence Act 1984 if their decision as to custody was based solely on algorithms, because a custody record has to be entered.

[Victoria Atkins]

This has been a moment of genuine misunderstanding. Given how the hon. Lady presented that, to me it sounded as if she was saying that the custody record and the custody arrangements of a suspect—detaining people against their will in a police cell—was being done completely by a computer. That was how it sounded. There was obviously an area of genuine misunderstanding, so I am grateful that she clarified it. She intervened on me when I said that we were not aware of any examples of the police solely using automated decision making—that is when she intervened, but that is not what she has described. A human being, a custody sergeant, still has to sign the record and review the risk assessment to which the hon. Lady referred. The police are using many such examples nowadays, but the fact is that a human being is still involved in the decision-making process, even in the issuing of penalties for speeding. Speeding penalties may be automated processes, but there is a meaningful element of human review and decision making, just as there is with the custody record example she gave.

There was a genuine misunderstanding there, but I am relieved, frankly, given that the right hon. Member for Birmingham, Hodge Hill was making points about my being unaware of what is going on in the Home Office. I am entirely aware of that, but I misunderstood what the hon. Lady meant and I thought she was presenting the custody record as something that is produced by a machine with no human interaction.

[Liam Byrne]

Will the Minister give way?

[Victoria Atkins]

No, with respect—

[Liam Byrne]

This is a Bill Committee, line-by-line scrutiny.

[Victoria Atkins]

Line-by-line scrutiny, but I was acting in good faith on an intervention that the hon. Member for Sheffield, Heeley made when I was talking about any examples of the police solely using automated decision making.

[Liam Byrne]

On a point of order, Mr Hanson.

[The Chair]

I hope it is, Mr Byrne.

[Liam Byrne]

May I ask for your guidance on this question? We are in a Bill Committee that is tasked with scrutinising the Bill line by line. Is it customary for Ministers to refuse to give way on a matter of detail?

[The Chair]

Ultimately, whether the Minister gives way is a matter for the Minister—that is true for any Member who has the Floor—but it is normal practice to debate aspects of legislation thoroughly. Ultimately, however, it remains the choice of the Minister or any other Member with the Floor whether to give way.

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[Victoria Atkins]

I am grateful—

[Liam Byrne]

Will the Minister give way on that point?

[Victoria Atkins]

I have lost track of which point the right hon. Gentleman wants me to give way on.

[Liam Byrne]

Let me remind the Minister. What we are concerned about on the question of law enforcement is whether safeguards that are in place will be removed under the Bill. That is part and parcel of a broader debate that we are having about whether the safeguards that are in the Bill will be adequate. So let me return to the point I made earlier to the Minister, which is that we would like her reflections on what additional safeguards can be drafted into clauses 50 and 51 before Report stage.

[Victoria Atkins]

Clause 49 is clear that individuals should not be subject to a decision based solely on automated processing if that decision significantly or adversely has an impact on them, legally or otherwise, unless required by law. If that decision is required by law, clause 50 specifies the safeguards that controllers should apply to ensure that the impact on the individual is minimised. Critically, that includes informing the data subject that a decision has been taken and giving that individual 21 days in which to ask the controller to reconsider the decision, or to retake the decision with human intervention.

A point was made about the difference between automated processing and automated decision making. Automated processing is when an operation is carried out on personal data using predetermined fixed parameters that allow for no discretion by the system and do not involve further human intervention in the operation to produce a result or output. Such processing is used regularly in law enforcement to filter large datasets down to manageable amounts for a human operator to use. Automated decision making is a form of automated processing that allows the system to use discretion, potentially based on algorithms, and requires the final decision to be made without human interference. The Bill seeks to clarify that, and the safeguards are set out in clause 50.

Question put and agreed to.

Clause 50, as amended, accordingly ordered to stand part of the Bill.

Clause 51

Exercise of rights through the Commissioner

--- Later in debate ---

[Victoria Atkins]

These technical amendments are required to ensure that the provisions in clause 51 do not inadvertently undermine criminal investigations by the police or other competent authorities. Under the Bill, where a person makes a subject access request, it may be necessary for the police or other competent authority to give a “neither confirm nor deny” response, for example in order to avoid tipping someone off that they are under investigation for a criminal offence. In such a case, the data subject may exercise their rights under clause 51 to ask the Information Commissioner to check that the processing of their personal data complies with the provisions in part 3. It would clearly undermine a “neither confirm nor deny” response to a subject access request if a data subject could use the provisions in part 3 to secure confirmation that the police were indeed processing their information.

It is appropriate that the clause focuses on the restriction of a data subject’s rights, not on the underlying processing. The amendments therefore change the nature of the request that a data subject may make to the commissioner in cases where rights to information are restricted under clause 44(4) or clause 45(4). The effect of the amendments is that a data subject will be able to ask the commissioner to check that the restriction was lawful. The commissioner will then be able to respond to the data subject in a way that does not undermine the original “neither confirm nor deny” response.

[Liam Byrne]

This is a significant amendment—I understand the ambition behind the clause—so it is worth dwelling on it for a moment. I would like to check my understanding of what the Minister said. In a sense, if an investigation is under way and the individual under investigation makes a subject access request to the police and gets a “neither confirm nor deny” response, the data subject will be able to ask the Information Commissioner to investigate. Will the Minister say a little more about what message will go from the police to the Information Commissioner and the content of the message that will go from the Information Commissioner to the data subject? I have worked on such cases in my constituency. Often, there is an extraordinary spiral of inquiries and the case ultimately ends up in a judicial review in court. Will the Minister confirm that I have understood the mechanics accurately and say a little more about the content of the messages from the police to the Information Commissioner and from the Information Commissioner to the person who files the request?

[Victoria Atkins]

I can help the right hon. Gentleman in one respect: he has understood the mechanics. I am afraid that I cannot give him examples, because it will depend on the type of criminal offence or the type of investigation that may be under way. I cannot possibly give him examples of the information that may be sent by the police to the Information Commissioner, because that will depend entirely on the case that the police are investigating.

[Liam Byrne]

Perhaps I can pose the question in a sharper way. I do not think that is entirely the case. It must be possible for the Minister to be a little more specific, and perhaps a little more knowledgeable, about the content of the message that will go from the Information Commissioner to the data subject. Will that be a standard message? Will it be in any way detailed? Will it reflect in any way on the information that the police provide? Or will it simply be a blank message such as “I, the Information Commissioner, am satisfied that your information has been processed lawfully”? I do not think the Information Commissioner is likely to ask for too much detail about the nature of the offence, but she will obviously ask whether data has been processed lawfully. She will want to make checks in that way. Unless the Information Commissioner is able to provide some kind of satisfactory response to the person who has made the original request, we will end up with an awful administrative muddle that will take of lot of the courts’ time. Perhaps the Minister could put our minds at rest on that.

[Victoria Atkins]

The Information Commissioner will get the information but, by definition, she does not give that information to the subject, because law enforcement will have decided that it meets the criteria for giving a “neither confirm nor deny” response from their perspective. The commissioner then looks at the lawfulness of that; if she considers it to be lawful, she will give the same response—that the processing meets part 3 obligations.

Amendment 25 agreed to.

Amendment made: 26, in clause 51, page 31, line 11, leave out from first “the” to end of line 12 and insert “restriction imposed by the controller was lawful;” —(Victoria Atkins.)

This amendment is consequential on Amendment 25.

Clause 51, as amended, ordered to stand part of the Bill.

Clause 52 ordered to stand part of the Bill.

Clause 53

Manifestly unfounded or excessive requests by the data subject

Amendments made: 27, in clause 53, page 31, line 39, leave out “or 47” and insert “,47 or 50”.

Clause 53(1) provides that where a request from a data subject under Clause 45, 46 or 47 is manifestly unfounded or excessive, the controller may charge a reasonable fee for dealing with the request or refuse to act on the request. This amendment applies Clause 53(1) to requests under Clause 50 (automated decision making). See also Amendment 28.

Amendment 28, in clause 53, page 32, line 4, leave out “or 47” and insert “,47 or 50”.—(Victoria Atkins.)

Clause 53(3) provides that where there is an issue as to whether a request under Clause 45, 46 or 47 is manifestly unfounded or excessive, it is for the controller to show that it is. This amendment applies Clause 53(3) to requests under Clause 50 (automated decision making). See also Amendment 27.

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

[Liam Byrne]

We have just agreed a set of amendments that, on the face of it, look nice and reasonable. We can all recognise the sin that the Government are taking aim at, and that the workload of the Information Commissioner’s Office and of others has to be kept under control, so we all want to deter tons of frivolous and meaningless requests. None the less, a lot of us have noticed that, for example, the introduction of fees for industrial tribunals makes it a lot harder for our constituents to secure justice.

I wonder, having now moved the amendment successfully, whether the Minister might tell us a little more about what will constitute a reasonable fee and what will happen to those fees. Does she see any relationship between the fees being delivered to her Majesty’s Government and the budget that is made available for the Information Commissioner? Many of us are frankly worried, given the new obligations of the Information Commissioner, about the budget she has to operate with and the resources at her disposal. Could she say a little more, to put our minds at rest, and reassure us that these fees will not be extortionate? Where sensible fees are levied, is there some kind of relationship with the budget that the Information Commissioner might enjoy?

[Victoria Atkins]

Clause 35 establishes the principle that subject access requests should be provided free of charge in most cases. That will be the default position in most cases. In terms of the fees, that will not be a matter to place in statute; certainly, I can write to the right hon. Gentleman with my thoughts on how that may develop. The intention is that in the majority of cases, there will be no charge.

Question put and agreed to.

Clause 53, as amended, accordingly ordered to stand part of the Bill.

Clause 54

Meaning of “applicable time period”

Amendments made: 29, in clause 54, page 32, line 14, leave out “day” and insert “time”.

This amendment is consequential on Amendment 71.

Amendment 30, in clause 54, page 32, line 15, leave out “day” and insert “time”.—(Victoria Atkins.)

This amendment is consequential on Amendment 71.

Clause 54, as amended, ordered to stand part of the Bill.

Clauses 55 to 63 ordered to stand part of the Bill.

Clause 64

Data protection impact assessment

--- Later in debate ---

[Liam Byrne]

I rise briefly to support my hon. Friend’s excellent speech. The ambition of Opposition Members on the Committee is to ensure that the Government have in place a strong and stable framework for data protection over the coming years. Each of us, at different times in our constituencies, have had the frustration of working with either local police or their partners and bumping into bits of regulation or various procedures that we think inhibit them from doing their job. We know that at the moment there is a rapid transformation of policing methods. We know that the police have been forced into that position, because of the pressure on their resources. We know that there are police forces around the world beginning to trial what is sometimes called predictive policing or predictive public services, whereby, through analysis of significant data patterns, they can proactively deploy police in a particular way and at a particular time. All these things have a good chance of making our country safer, bringing down the rate of crime and increasing the level of justice in our country.

The risk is that if the police lack a good, clear legal framework that is simple and easy to use, very often sensible police, and in particular nervous and cautious police and crime commissioners, will err on the side of caution and actually prohibit a particular kind of operational innovation, because they think the law is too muddy, complex and prone to a risk of challenge. My hon. Friend has given a number of really good examples. The automatic number plate recognition database is another good example of mass data collection and storage in a way that is not especially legal, and where we have waited an awfully long time for even something as simple as a code of practice that might actually put the process and the practice on a more sustainable footing. Unless the Government take on board my hon. Friend’s proposed amendments, we will be shackling the police, stopping them from embarking on many of the operational innovations that they need to start getting into if they are to do their job in keeping us safe.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I will speak briefly in support of amendments 142 to 149, as well as new clauses 3 and 4. As it stands, clause 64 requires law enforcement data controllers to undertake a data protection impact assessment if

“a type of processing is likely to result in a high risk to the rights and freedoms of individuals”.

That assessment would look at the impact of the envisaged processing operations on the protection of personal data and at the degree of risk, measures to address those risks and possible safeguards. If the impact assessment showed a high risk, the controller would have to consult the commissioner under clause 65.

It is important to be clear that the assessment relates to a type of processing. Nobody is asking anyone to undertake an impact assessment every time the processing occurs. With that in mind, the lower threshold for undertaking an assessment suggested in the amendments seems appropriate. We should be guarding not just against probable or high risks, but against any real risk. The worry is that if we do not put these tests in place, new forms of processing are not going to be appropriately scrutinised. We have had the example of facial recognition technology, which is an appropriate one.

New clauses 3 and 4 do a similar job for the intelligence services in part 4, so they also have our support.

--- Later in debate ---

[Victoria Atkins]

I am extremely grateful to the hon. Lady for clarifying her role. My answer is exactly as I said before. High risk includes processing where there is a particular likelihood of prejudice to the rights and freedoms of data subjects. That must be a matter for the data controller to assess. We cannot assess it here in Committee for the very good reason put forward by members of the Committee: we cannot foresee every eventuality. Time will move on, as will technology. That is why the Bill is worded as it is, to try to future-proof it but also, importantly, because the wording complies with our obligations under the law enforcement directive and under the modernised draft Council of Europe convention 108.

[Liam Byrne]

Does the Minister not have some sympathy with the poor individuals who end up being data controllers for our police forces around the country, given the extraordinary task that they have to do? She is asking those individuals to come up with their own frameworks of internal guidance for what is high, medium and low risk. The bureaucracy-manufacturing potential of the process she is proposing will be difficult for police forces. We are trying to help the police to do their job, and she is not making it much easier.

--- Later in debate ---

[Louise Haigh]

I remain concerned that the Bill leaves gaps that will enable law enforcement agencies and the police to go ahead and use technology that has not been tested and has no legal basis. As my right hon. Friend the Member for Birmingham, Hodge Hill said, that leaves the police open to having to develop their own guidance at force level, with all the inconsistencies that would entail across England and Wales.

The Minister agreed to write to me on a couple of issues. I do not believe that the Metropolitan police consulted the Information Commissioner before trialling the use of photo recognition software, and I do not believe that other police forces consulted the Information Commissioner before rolling out mobile fingerprint scanning. If that is the case and the legislation continues with the existing arrangements, that is not sufficient. I hope that before Report the Minister and I can correspond so as potentially to strengthen the measures. With that in mind, and with that agreement from the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 ordered to stand part of the Bill.

Clauses 65 and 66 ordered to stand part of the Bill.

Clause 67

Notification of a personal data breach to the Commissioner

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

[Liam Byrne]

The Committee is looking for some guidance and for tons of reassurance from the Minister about how the clause will bite on data processors who do not happen to base their operations here in the United Kingdom. This morning we debated the several hundred well-known data breaches around the world and highlighted some of the more recent examples, such as Yahoo!—that was probably the biggest—and AOL. More recently, organisations such as Uber have operated their systems with such inadequacy that huge data leaks have occurred, directly infringing the data protection rights of citizens in this country. The Minister will correct me if I am wrong, but I am unaware of any compensation arrangements that Uber has made with its drivers in this country whose data was leaked.

Even one of the companies closest to the Government—Equifax, which signed a joint venture agreement with the Government not too long ago—has had a huge data breach. It took at least two goes to get a full account from Equifax of exactly what had happened, despite the fact that Her Majesty’s Government were its corporate partner and had employed it through the Department for Work and Pensions. All sorts of information sharing happened that never really came to light. I am not sure whether any compensation for Equifax data breaches has been paid to British citizens either.

My point is that most citizens of this country have a large amount of data banked with companies that operate from America under the protection of the first amendment. There is a growing risk that in the years to come, more of the data and information service providers based in the UK will go somewhere safer, such as Ireland, because they are worried about the future of our adequacy agreement with the European Commission. We really need to understand in detail how the Information Commissioner, who is based here, will take action on behalf of British citizens against companies in the event of data breaches. For example, how will she ensure notification within 72 hours? How will she ensure the enforcement of clause 67(4), which sets out the information that customers and citizens must be told about the problem?

This morning we debated the Government’s ludicrous proposals for class action regimes, which are hopelessly inadequate and will not work in practice. We will not have many strong players in the UK who are able to take action in the courts, so we will be wholly reliant on the Information Commissioner to take action. I would therefore be grateful if the Minister reassured the Committee how the commissioner will ensure that clause 67 is enforced if the processor of the data is not on our shores.

[Victoria Atkins]

The right hon. Gentleman refers to companies not on these shores, about which we had a good deal of discussion this morning. Clause 67 belongs to part 3 of the Bill, which is entitled “Law enforcement processing”, so I am not sure that the companies that he gives as examples would necessarily be considered under it. I suppose a part 3 controller could have a processor overseas, but that would be governed by clause 59. Enforcement action would, of course, be taken by the controller under part 3, but I am not sure that the right hon. Gentleman’s examples are relevant to clause 67.

[Liam Byrne]

I am grateful to the Minister for that helpful clarification. Let me phrase the question differently, with different examples. The Home Office and many police forces are outsourcing many of their activities, some of which are bound to involve data collected by global organisations such as G4S. Is she reassuring us that any and all data collected and processed for law enforcement activities will be held within the boundaries of the United Kingdom and therefore subject to easy implementation of clause 67?

[Victoria Atkins]

The controller will be a law enforcement agency, to which part 3 will apply. I note that clause 200 provides details of the Bill’s territorial application should a processor be located overseas, but under part 3 it will be law enforcement agencies that are involved.

[Liam Byrne]

Where G4S, for example, is employed to help with deportations, the Minister is therefore reassuring us that the data controller would never be G4S. However, if there were an activity that was clearly a law enforcement activity, such as voluntary removal, would the data controller always be in Britain and therefore subject to clause 67, even where private sector partners are used? The Minister may outsource the contract, but we want to ensure that she does not outsource the role of data controller so that a law enforcement activity here can have a data controller abroad.

[Victoria Atkins]

I appreciate the sentiment behind the amendment. If the Home Office outsources processing to an overseas company, any enforcement action would be taken against the Home Office as the controller. The right hon. Gentleman has raised the example of G4S in the immigration context, so I will reflect on that overnight and write to him to ensure that the answer I have provided also covers that situation.

Question put and agreed to.

Clause 67 accordingly ordered to stand part of the Bill.

Clause 68 to 71 ordered to stand part of the Bill.

Clause 72

Overview and interpretation

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

[Liam Byrne]

I want to flag up an issue that we will stumble across in a couple of stand part debates: the safeguards that will be necessary for data sharing between this country and elsewhere. We will come on to the safeguards that will be necessary for the transfer of data between our intelligence agencies and foreign intelligence agencies. Within the context of this clause, which touches on the broad principle of data sharing from here and abroad, I want to rehearse one or two arguments on which Ministers should be well briefed and alert.

Our intelligence agencies do an extraordinary job in keeping this country safe, which sometimes involves the acquisition and use of data that results in the loss of life. All Committee members will be familiar with the drone strike that killed Reyaad Khan and Ruhul Amin, and many of us will have heard the Prime Minister’s assurances in the Liaison Committee about the robust legal process that was gone through to ensure that the strike was both proportionate and legal.

The challenge—the public policy issue that arises under chapter 5 of the Bill—is that there is a number of new risks. First, there is the legal risk flagged up by the Court of Appeal in 2013, when justices said that it was not clear that UK personnel will be immune from criminal liability for their involvement in a programme that involves the transfer of intelligence from an intelligence service here to an American partner and where that American partner uses that information to conduct drone strikes that involve the loss of life. Confidence levels differ, but we in the Committee are pretty confident about the legal safeguards around those kinds of operations in this country. We can be less sure about the safeguards that some of our partners around the world have in place. The Court of Appeal has expressed its view, which was reinforced in 2016 by the Joint Committee on Human Rights. The Committee echoed the finding that

“front-line personnel…should be entitled to more legal certainty”

than they have today.

This section of the Bill gives us the opportunity to ensure that our intelligence services are equipped with a much more robust framework than they have today, to ensure that they are not subject to the risks flagged by the Court of Appeal or by the Joint Committee on Human Rights.