Data Protection and Digital Information Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 15th April 2024 Grand Committee

[Lord Clement-Jones (LD)]

That was a very good conclusion to the response from the noble Lord, Lord Bethell—urging a Minister to lean in. I have not heard that expression used in the House before, but it is excellent because, faced with a Home Office Minister, I am sure that is the kind of behaviour that we can expect imminently.

Last time we debated issues relating to national security and data protection, the noble Lord, Lord Ashton, was the responsible Minister and I had the support of the noble Lord, Lord Paddick. Now I have the Minister all to myself on Amendments 135A to 135E and the stand part notices on Clauses 28 to 30. These Benches believe that, as drafted, these clauses fall foul of the UK’s obligations under the ECHR, because they give the Home Secretary too broad a discretion and do not create sufficient safeguards to prevent their misuse.

Under the case law of the European Court of Human Rights, laws that give unfettered or overly broad discretion to the Government to interfere with privacy will violate the convention, because the laws must be sufficiently specific to prevent abuses of power. This means they must make sure that, any time they interfere with the privacy of people in the UK, they obey the law, have a goal that is legitimate in a democratic society and do only what is truly necessary to achieving that goal. The court has repeatedly stressed that this is what the rule of law means; it is an essential principle of democracy.

Despite multiple requests from MPs, and from Rights and Security International in particular, the Government have also failed to explain why they believe that these clauses are necessary to safeguard national security. So far, they have explained only why these new powers would be “helpful” or would ensure “greater efficiency”. Those justifications do not meet the standard that the ECHR requires when the Government want to interfere with our privacy. They are not entitled to do just anything that they find helpful.

Under Clause 28(7), the Home Secretary would be able to issue a national security certificate to tell the police that they do not need to comply with many important data protection laws and rules that they would otherwise have to obey. For instance, a national security certificate would give the police immunity when they commit crimes by using personal data illegally. It would also exempt them from certain provisions of the Freedom of Information Act 2000. The Bill would expand what counts as an intelligence service for the purposes of data protection law—again, at the Home Secretary’s wish. Clause 29 would allow the Home Secretary to issue a designation notice, allowing law enforcement bodies to take advantage of the more relaxed rules in the Data Protection Act 2018, otherwise designed for the intelligence agencies whenever they collaborate with the security services.

Both the amended approach to national security certificates and the new designation notice regime would be unaccountable. The courts would not be able to review what the Government are doing and Parliament might therefore never find out. National security certificates are unchallengeable before the courts, meaning that the police and the Home Secretary would be unaccountable if they abused those powers. If the Home Secretary says that the police need to use these increased—and, in our view, unnecessary—powers in relation to national security, his word will be final. This includes the power to commit crimes.

As regards designation notices, the Home Secretary is responsible for approving and reviewing their use. Only a person who is directly affected by a designation notice will be able to challenge it, yet the Home Secretary would have the power to keep the notice secret, in which case how could anybody know that the police had been snooping on their lives under this law?

Clauses 28 to 30 could, in our view, further violate the UK’s obligations under the Human Rights Act 1998 and the European Convention on Human Rights because they remove the courts’ role in reviewing how the Government use their surveillance power. The European Court of Human Rights has ruled in the past that large aspects of the law previously governing the UK’s surveillance powers were unlawful because they gave the Government too much discretion and lacked important safeguards to prevent misuse. Clauses 28 to 30 could be challenged on similar grounds, and the court has shown that it is willing to rule on these issues. These weaknesses in the law could also harm important relationships that the UK has with the EU as regards data adequacy, a subject that we will no doubt discuss in further depth later this week.

The Government argue that the clauses create a simplified legal framework that would improve the efficiency of police operations when working with the intelligence services. This is far from meeting the necessity standard under the ECHR.

The Government have frequently used the Fishmongers’ Hall and Manchester Arena attacks to support the idea that Clauses 28 to 30 are desirable. However, a difference in data protection regimes was not the issue in either case; instead, the problem centred around failures in offender management, along with a lack of communication between the intelligence services and local police. The Government have not explained how Clauses 28 to 30 would have prevented either incident or why they think these clauses are necessary to prevent whatever forms of violence the Government regard as most likely to occur in the future. The Government have had sufficient opportunity to date to explain the rationale for these clauses, yet they have so far failed to do so. For these reasons, we are of the view that Clauses 28 to 30 should not stand part of the Bill.

However, it is also worth putting down amendments to try to tease out additional aspects of these clauses, so Amendments 135A and 135D would put proportionality back in. It is not clear why the word “proportionality” has been taken out of the existing legislation. Similarly, Amendment 135B attempts to put back in the principles that should underpin decisions. Those are the most troubling changes, since they seem to allow for departure from basic data protection principles. These were the principles that the Government, during the passage of the Data Protection Act 2018, assured Parliament would always be secure. The noble Lord, Lord Ashton of Hyde, said:

“People will always have the right to ensure that the data held about them is fair and accurate, and consistent with the data protection principles”.—[Official Report, 10/10/17; col. 126.]


Thirdly, on the introduction of oversight by a judicial commissioner for Clause 28 certificates, now seems a good time to do that. During the passage of the Data Protection Act through Parliament, there was much debate over the Part 2 national security exemption for general processing in Section 26 and the national security certificates in Section 27. We expressed concern then but, sadly, the judicial commissioner role was not included. This is a timely moment to suggest that again.

Finally, on increasing the oversight of the Information Commissioner under Amendment 135E, I hope that this will be an opportunity for the Minister, despite the fact that I would prefer to see Clauses 28 to 30 not form part of the Bill, to explain in greater detail why they are constructed in the way they are and why the Home Office believes that it needs to amend the legislation in the way it proposes. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I come to this topic rather late and without the star quality in this area that has today been attributed to the noble Lord, Lord Kirkhope. I acknowledge both the work of Justice in helping me to understand what Clause 28 does and the work of the noble Lord, Lord Clement-Jones, in formulating the probing amendments in this group. I echo his questions on Clause 28. I will focus on a few specific matters.

First, what is the difference between the existing formulation for restricting data protection rights “when necessary and proportionate” to protect national security and the new formulation,

“when required to safeguard national security”?

What is the purpose of that change? Does “required” mean the same as “necessary” or something different? Do the restrictions not need to be proportionate any more? If so, why? Could we have a practical example of what the change is likely to mean in practice?

Secondly, why is it necessary to expand the number of rights and obligations from which competent law enforcement authorities can be exempted for reasons of national security? I can understand why it may for national security reasons be necessary to restrict a person’s right to be informed, right of access to data or right to be notified of a data breach, as under the existing law, but Clause 28 would allow the disapplication of some very basic principles of data protection law—including, as I understand it, the right to have your data processed only for a specified, explicit and legitimate purpose, as well as the right to have decisions made about you not use solely automated methods.

Thirdly, as the noble Lord, Lord Clement-Jones, asked, why is it necessary to remove the powers of the Information Commissioner to investigate, to enter and inspect, and, where necessary, to issue notices? I appreciate that certificates will remain appealable to the Upper Tribunal by the person directly affected, applying judicial review principles, but that is surely not a substitute for review by the skilled and experienced ICO. Apart from anything else, the subject is unlikely even to know that they have been affected by the provisions, given that a certificate would exempt law enforcement from having to provide information to them. That is precisely why the oversight of a commissioner in the national security area is so important.

As for Clauses 29 and 30, I am as keen as anybody to improve the capabilities for the joint processing of data by the police and intelligence agencies. That was a major theme of the learning points from the London and Manchester attacks of 2017, which I helped to formulate in that year and on which I reported publicly in 2019. A joint processing regime certainly sounds like a good idea in principle but I would be grateful if the Minister could confirm which law enforcement competent authorities will be subject to this new regime. Are they limited to Counter Terrorism Policing and the National Crime Agency?

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

The Minister left us on a tantalising note. He was unable to say whether the law enforcement organisations affected by these clauses will be limited to Counter Terrorism Policing and the NCA or whether they will include others as well. I am rather at a loss to think who else might be included. Do we really have to wait for the affirmative regulations before we can be told about that? It seems pretty important. As the Minister knows well, there are quite a few precedents—following some recent ones—for extending to those bodies some of the privileges and powers that attach to the intelligence agencies. I suspect that a number of noble Lords might be quite alarmed if they felt that those powers or privileges were being extended more widely—certainly without knowing, or at least having some idea, in advance to whom they might be extended.

While I am on my feet and causing mischief for the Minister, may I return to the rather lawyerly question that I put to him? I do not think I had an answer about the formulation in new Section 78A, which talks about an exemption applying

“if exemption from the provision is required for the purposes of safeguarding national security”.

What does “required” mean? Does it simply mean the same as “necessary”—in which case, why not stick with that? Or does it mean something else? Does it mean that someone has required or requested it? It could be a pretty significant difference and this is a pretty significant ambiguity in the Bill. If the Minister is not willing to explain it now, perhaps he will feel able to write to us to explain exactly what is meant by replacing the well-worn phrase “necessary and proportionate” with “required”.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that. It is a lawyerly question and, as he knows, I am not a lawyer. With respect, I will endeavour to write and clarify on that point, as well as on his other good point about the sorts of authorities that we are talking about.