Data Protection Bill [Lords] (Fourth sitting)

Debate between Liam Byrne and Louise Haigh

Thursday 15th March 2018 Public Bill Committees

[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Amendment, by leave, withdrawn.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.

Data Protection Bill [ Lords ] (Second sitting)

Debate between Liam Byrne and Louise Haigh

Tuesday 13th March 2018 Public Bill Committees

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

I rise to put on record my thanks to the Minister for listening carefully to my noble Friend Lord Stevenson. There was strong cross-party consensus on these common-sense reforms.

We all know that in our own constituencies there are extraordinary people doing extraordinary things in local groups. They are the life-blood of our communities. Many of them will be worried about the new obligations that come with the general data protection regulation and many of them will take a least-risk approach to meeting the new regulations. Putting in place some common safeguards to ensure that it is possible to keep data that allow us to spot important patterns of behaviour that can lead to appropriate investigations is very sensible and wise. These amendments will therefore be made with cross-party support.

Amendment 84 agreed to.

Amendments made: 85,  in schedule 1, page 126, line 38, at end insert—

“Safeguarding of children and of individuals at risk

14A (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.”

Part 2 of Schedule 1 describes types of processing of special categories of personal data which meet the requirement in Article 9(2)(g) of the GDPR (processing necessary for reasons of substantial public interest) for a basis in UK law (see Clause 10(3)). This amendment adds to Part 2 of Schedule 1 certain processing of personal data which is necessary for the protection of children or of adults at risk. See also Amendments 116 and 117.

Amendment 86, in schedule 1, page 126, line 38, at end insert—

“Safeguarding of economic well-being of certain individuals

14B (1) This condition is met if the processing—

(a) is necessary for the purposes of protecting the economic well-being of an individual at economic risk who is aged 18 or over,

(b) is of data concerning health,

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

(d) 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) In this paragraph, “individual at economic risk” means an individual who is less able to protect his or her economic well-being by reason of physical or mental injury, illness or disability.”—(Victoria Atkins.)

Part 2 of Schedule 1 describes types of processing of special categories of personal data which meet the requirement in Article 9(2)(g) of the GDPR (processing necessary for reasons of substantial public interest) for a basis in UK law (see Clause 10(3)). This amendment adds to Part 2 of Schedule 1 certain processing of personal data which is necessary to protect the economic well-being of adults who are less able to protect their economic well-being by reason of a physical or mental injury, illness or disability.

[Louise Haigh (Sheffield, Heeley) (Lab)]

I beg to move amendment 150, page 126, line 38, at end insert—

“Register of missing persons

14A This condition is met if the processing—

(a) is necessary for the establishment or maintenance of any register of missing persons, and

(b) is carried out in a manner which is consistent with any guidance which may be issued by the Secretary of State or by the Commissioner on the processing of data for the purposes of this paragraph.”

It is a pleasure to serve under your chairmanship, Mr Hanson. Amendment 150 seeks to provide a similar exemption to the one that the Minister has just laid out. As my right hon. Friend the Member for Birmingham, Hodge Hill said, we completely support the principles behind this exemption to schedule 1. As the Minister made clear, too often serious case reviews or reviews after an incident of this nature, particularly in child protection cases, show clearly that if the data had been shared more effectively—often in health cases—the child could have been protected and their life might have been saved.

We tabled this amendment because of the increase in the number of missing persons and missing children over the past few years. As the shadow Police Minister, I approach this issue from a policing perspective. It is important that all data handlers fully understand their obligations and the powers that are bestowed on them. Too often, under the existing legislation, they hide behind data protection to avoid sharing data, and we fear that that tendency will become even stronger under the Bill.

Sharing data relating to missing persons is important for a number of reasons. The demand on police services from such cases has rocketed over the past few years. Police officers spend only 17% of their time responding to crime, so 83% of police time is spent responding to non-crime demand. That includes mental health call-outs, but largely it relates to missing persons. Some police forces tell me that missing persons place the greatest demand on their time.

In the west midlands, since 2015 the number of missing person incidents has doubled to nearly 13,000 cases a year. In Northumbria—one of the smallest police forces in the country—as of this minute there are 43 men and 20 women missing. For such a small police force, that is a significant number of people to be out looking for. Last year alone, such investigations cost the police service more than £600 million. One fifth of those missing persons are children in care, more than 50% are children, and a significant proportion are elderly people missing from care. Crucially, about one third are reported missing on more than one occasion. It is those individuals we seek to address with the register.

There are various reasons for the increase, one of which is certainly better police reporting. Our ageing population means that more people are in care and are going missing from care. The police have responded to that issue in various ways, including by tagging elderly individuals who go missing from care repeatedly —we have tabled amendments to explore the issues arising from that. Cuts to other public services mean that the increasing demand, which previously would have fallen elsewhere—in particular, on local authorities—is now landing on the police. We are seeing a higher tolerance of risk across the care sector, and possibly the health sector too, and a tendency to pass the buck for these issues and other vulnerabilities on to the police, who have a very low risk threshold and nowhere to pass them on.

I believe we need a review of all agencies that are involved with safeguarding to ensure that they are taking seriously their responsibilities in this regard. When the issue relates to resources, they must make the case for those resources, rather than merely pass the problem on to the police. I have heard stories about private children’s care homes where staff may see that the child is outside their window or down the street, but because they are five minutes over curfew they ring the police and say that the child is missing. That passes on the responsibility, but has very serious implications for the police. It diverts resources from tackling crime and from responding to genuine cases of missing children and high-risk missing persons.

Estimates of the time associated with this activity suggest that approximately 18 hours of police time is needed for a medium-risk missing persons investigation. In 2015-16, that equated to more than 6 million investigation hours, or more than 150,000 officers occupied full time with that activity. Not being dealt with by the appropriate agency and not being responded to correctly has real implications for the individual. Going missing can be a precursor to various aspects of significant harm, such as abuse, exposure to criminal activity and mental ill-health. There are enough issues relating to police forces sharing data among themselves, let alone with other agencies. As a result, various criminal activities exploiting those weaknesses have developed. In the past, the Minister and I have discussed county lines at length, which is a criminal activity whereby organised criminal gangs exploit children. They take them, internally traffick them across the country, set them up in another vulnerable adult’s home and leave them to deal drugs on their behalf. That is a very profitable criminal activity, but the perpetrators have been able to evade real enforcement because of the weaknesses in data sharing and cross-agency working between police forces and agencies. The amendment will ensure that the police and all appropriate safeguarding agencies have access to the relevant data to ensure that at-risk missing people are found as quickly and safely as possible, and have their needs dealt with in the most appropriate way.