Data Protection Bill [HL]

Lord Clement-Jones Excerpts

Report stage (Hansard - continued): House of Lords
Monday 11th December 2017 Lords Chamber

On Amendment 10 in the name of the noble Lord, Lord Clement-Jones, I shall listen with interest to what he and other noble Lords have to say before responding. For now, noble Lords will be relieved to hear me say that I beg to move.

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness having sat through my last speech, I am in no position to judge. That was a skilful summary of the memorandum put to the Delegated Powers and Regulatory Reform Committee and it is useful to have it on the parliamentary record.

I remind the House that the amendments we have brought forward do not take the ultra position, if you like. They are about having an appropriate level of parliamentary control over delegated legislation in a field where these are important matters—rights which are inextricably linked to human rights. To boil down a long memorandum, the Minister’s arguments are about flexibility and future proofing. However, the horse has bolted. In previous legislation such regulations were permitted to be made by government and therefore we should roll over and put them into the next bit of legislation.

The one essence that I take away is that the consultation duty is enshrined. I accept that it is a considerable improvement that the Secretary of State must consult the commissioner and such other persons as the Secretary of State considers appropriate. It would be useful at this stage at least to have on the record the kinds of bodies the Minister thinks are appropriate in these circumstances.

The real issue and the reason why we have tabled our amendments—I am not saying they are perfect but they allow for a parliamentary process in which there is an ability to suggest amendments and to have a full consultation on regulation changes—is the controversy about “omission”, “addition” and “varying”. The Government have clearly come to the view that omitting provisions is permissible in certain circumstances but they are relying on adding or varying. They say that varying is a light-touch aspect but why, in certain circumstances, is it permissible to omit provisions added by regulations? Is this a kind of second thoughts aspect, whereby regulations are brought forward under this Bill and then the Government think they want to omit some of them? I do not quite understand the rationale behind that.

I accept that in some of the crucial cases they are limiting themselves to “adding” or “varying”. However, variation can be extremely broad and virtually equivalent to omitting. It seems that one can vary a right all the way down to a minuscule situation which can impinge on the human rights of an individual, even though it is not technically an omission where a safeguard is provided. These are very broad rights. They are broad powers to create new exemptions to data protection rules as they affect a data subject and they can add exemptions to safeguards for processing sensitive personal data. These matters could have a powerful effect on individuals.

I should remind the Minister of a sad aspect, which is that in its procedures, the Delegated Powers and Regulatory Reform Committee does not seem to have a second bite of the cherry—something I am sure the Minister approves of entirely. But for those of us who relied on the very useful original DPRRC report, it is unfortunate that the committee has not come back and said what it thinks of the ministerial memorandum. In the original report the committee went as far as to say:

“We consider that clause 9(6) is inappropriately wide and recommend its removal from the Bill”.


That is pretty heavy stuff, even for this useful committee. It had even more to say about Clause 15:

“We regard this is an insufficient and unconvincing explanation for such an important power”.


I must put on the record that we on these Benches do not think that the Government have discharged the onus of proof, showing why they need these extraordinary powers under the Bill, and we hope that they will further reduce their regulation-making powers.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of overwhelmingly government amendments seeks to address issues raised by the Delegated Powers and Regulatory Reform Committee in its sixth report, published on 24 October this year, the only addition being Amendments 10 and 69 in the names of the noble Lords, Lord Clement-Jones and Lord Paddick. As we have heard, the Delegated Powers and Regulatory Reform Committee is widely respected in the House and I am pleased that the government amendments address the concerns raised by the committee. But as we have heard from the noble Baroness, Lady Chisholm of Owlpen, those concerns have not been accepted in full, and she has given the reasons for that.

I was particularly pleased to see government Amendments 9, 67 and 68, among others, which would limit the powers to amend the processing conditions and exemptions found in various schedules to the Bill. I am equally pleased to see the Government act in respect of the powers to make regulations. This will be done using the affirmative rather the negative procedure, starting with government Amendment 71. It gives Parliament the right level of scrutiny and the ability to reject or express regret about a particular decision, and allows for a proper level of scrutiny, a debate having to take place in both Houses.

In respect of Clauses 9 and 15, Amendments 10 and 69 seek to change the scrutiny procedure from the affirmative, as presently in the Bill, to the super-affirmative. I am not convinced that this is necessary as we have the tools at our disposal to scrutinise the proposals using the affirmative procedure. Starting with government Amendment 130, we have a series of amendments relating to the enforcement powers of the ICO, and again these are to be welcomed.

As I say, in general I welcome the government amendments and the explanation given by the noble Baroness.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for those kind words. The noble Lord, Lord Clement-Jones, asked who would be consulted. While it is clearly impossible to be specific, the Secretary of State might consider it appropriate to consult, for example, representatives of data subjects or trade bodies, depending on the circumstances and regulations in question. I hope that that answers his question.

On why it is permissible to admit provisions added by regulations, we believe it is qualitatively different from admitting those added during the extensive parliamentary debate and scrutiny afforded to primary legislation. As I said, many other powers are not new. The 1998 Act already provides a power to add to conditions for sensitive processing. We feel it is prudent to retain the ability to amend Schedules 2 to 4 if necessary. As I said, this is a fast-moving area. We want to make sure that the Bill provides a framework for the constant evolution and developments in how we use and apply data, but it must be supportive rather than stifle innovation and growth.

[Lord Clement-Jones]

With the greatest respect, the point I was making was whether the right to vary was not omission by the backdoor. Perhaps I was not clear enough.

[Baroness Chisholm of Owlpen]

No, we do not believe it is omission by the backdoor.

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The other amendment would ask the ICO to prepare insurance-specific guidance and in doing so to consult. In its September response to the consultation on consent, the ICO noted the differing worries of various sectors but said that it did not intend to give any sector-specific guidance. The amendment asks them to do so. Given that the sectors named by the ICO included health and social care, education and charities as well as insurance, it is right that Parliament should ask its Information Commissioner to be as helpful as possible to all sectors. The case for that has grown strongly in the many days of debate that we have had on the Bill, and again today and tonight. I therefore ask the Minister to confirm that these issues will be brought back at Third Reading.

[Lord Clement-Jones]

My Lords, it is a pleasure to follow the noble Earl, Lord Kinnoull, who has very impressively pursued these issues with considerable care and determination. He has said pretty much everything that needs to be said. Processing special category data, including health data and criminal convictions is, as he said, fundamental to calculating levels of risk and underwriting. I hardly need to say that to the Minister. His amendments are welcome, but of course the essence of the noble Earl’s amendments is to get from the Minister a progress report on how things are moving on in terms of enabling the continued processing of special category and criminal conviction data and whether we can get something along the right lines that allows a derogation for processing of special category and criminal conviction data where it is necessary in relation to insurance policies and claims. That would prevent disruption to consumers in the way the noble Earl mentioned. Then, of course, there is the guidance produced by Amendment 26; this is what you might call a sprat to catch a mackerel and I hope that the Minister will deliver the mackerel.

[Lord Kennedy of Southwark]

My Lords, I welcome government Amendments 11 and 12. As we have heard, they address some of the concerns that were raised in Committee. The Government have said that they never intended to have a narrow interpretation and they have put back the words of the 1998 Act, which is very welcome. As was said earlier, the noble Earl, Lord Kinnoull, has laid out in great detail the issues addressed in his Amendments 25 and 26. He makes a very important and clear case and raised some important issues. I hope that the noble Lord, Lord Ashton of Hyde, will respond to those. I certainly think that there is a case for bringing these things back at Third Reading to address the points the noble Earl has raised.

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[Baroness Neville-Jones (Con)]

My Lords, I introduced the same amendment in Committee and do not intend to repeat what I said then. I am glad to say that, since I put down that amendment, there has been a very helpful meeting between DCMS officials, the Genetic Alliance UK and Unique. I very much hope that that meeting will form the basis of a solution on which we can build for Third Reading. I thank my noble friend the Minister for his personal contribution to the progress that we have made.

My understanding is that at that meeting it was accepted that an amendment would have to be brought forward to ensure the legality of the work of patient support groups. My understanding also is that the Government would prefer to do this by their own amendment, and I am certainly very happy to accept that. I also hope that it will be possible to agree such an amendment before Third Reading.

My noble friend has said that he is concerned about defining the scope of the amendment. I certainly accept that that is a legitimate issue. The family of patient support groups is quite large, but I accept that it is right to prevent any amendment becoming a loophole for evasion of the Bill’s provisions. I am conscious of that issue. However, the purpose of the amendment is not controversial and I am happy to look to finding words and drafting that will both safeguard the points that we want to make and provide the right scope for the amendment. It would be highly desirable to be able to deal with this matter in our House.

I hope and trust that my noble friend will be able to confirm that he shares my understanding of the point that we have now reached and that he will be able to give me an assurance at least of best endeavours to present a government amendment at Third Reading. I might say that Genetic Alliance and other patient support groups stand ready to help in any way that they can to meet this deadline.

[Lord Clement-Jones]

My Lords, I will speak briefly to support the noble Baroness, Lady Neville-Jones, in her amendment. Clearly, this is of great importance to patient groups. I very much hope that the Minister will carry on the good work and come back at Third Reading with something substantive for the benefit of patient organisations that collect vital health information from their members, so that they will not be required to destroy or anonymise data. Without amendment, the Data Protection Bill has the potential to seriously damage the work of these patient support groups and hinder the work of certain public agencies, too, such as Public Health England and NICE—so I very much support the noble Baroness.