Data Protection and Digital Information Bill Debate
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Lord Clement-Jones
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Data Protection and Digital Information Bill
Lord Clement-Jones ExcerptsMonday 15th April 2024
(2 weeks, 6 days ago)
Grand CommitteeRead Full debate Data Protection and Digital Information Bill 2022-23 View all Data Protection and Digital Information Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-IV(a) Amendment for Grand Committee (Supplementary to the Fourth Marshalled List) - (15 Apr 2024)
Lord Clement-Jones
“(a) the rule of law, respect for human rights and fundamental freedoms, relevant legislation, both general and sectoral, including concerning public security, defence, national security and criminal law and the access of public authorities to personal data, as well as the implementation of such legislation, data protection rules, professional rules and security measures, including rules for the onward transfer of personal data to another third country or international organisation which are complied with in that country or international organisation, case-law, as well as effective and enforceable data subject rights and effective administrative and judicial redress for the data subjects whose personal data are being transferred;(b) the existence and effective functioning of one or more independent supervisory authorities in the third country or to which an international organisation is subject, with responsibility for ensuring and enforcing compliance with the data protection rules, including adequate enforcement powers, for assisting and advising the data subjects in exercising their rights and for cooperation with the Commissioner; and(c) the international commitments the third country or international organisation concerned has entered into, or other obligations arising from legally binding conventions or instruments as well as from its participation in multilateral or regional systems, in particular in relation to the protection of personal data.”Member’s explanatory statement
This amendment changes the list of things that the Secretary of State must consider when deciding whether a third country provides an adequate level of protection for data subjects.
Lord Clement-Jones (LD)
Once more unto the breach, my Lords—as opposed to “my friends”.
I will also speak to Amendments 112 to 114, 116 and 130. New Article 45B(2) lists conditions that the Secretary of State must consider when deciding whether a third country provides an adequate level of protection for data subjects. It replaces the existing conditions in Article 45(2)(a) to (c) of the UK GDPR, removing important considerations such as the impact of a third country’s laws and practices in relation to national security, defence, public security, criminal law and public authority access to personal data on the level of protection provided to UK data subjects.
Despite this shorter list of conditions to consider, the Secretary of State is none the less required to be satisfied that a third country provides a level of protection that is not materially lower than the UK’s. It is plain that such an assessment cannot be made without considering the impact of these factors on the level of protection for UK data in a third country. It is therefore unclear why the amendment that the Government have made to Article 45 is necessary, beyond a desire for the Government to draw attention away from such contentious and complicated issues.
It may be that through rewriting Article 45 of the UK GDPR, the Government’s intention is that assimilated case law on international data transfers is no longer relevant. If that is the case, that would be a substantial risk for UK data adequacy. Importantly, new Article 45B(2) removes the reference to the need for an independent data protection regulator in the relevant jurisdiction. This, sadly, is consistent with the theme of diminishing the independence of the ICO, which is one of the major concerns in relation to the Bill, and it is also an area where the European Commission has expressed concern. The independence of the regulator is a key part of the EU data adequacy regime and is explicitly referenced in Article 8 of the Charter of Fundamental Rights, which guarantees the right to protection of personal data. Amendment 111 restores the original considerations that the Secretary of State must take into account.
Amendments 112 and 113 would remove the proposed powers in Schedules 5 and 6 of the Secretary of State to assess other countries’ suitability for international transfers of data, and place these on the new information commission instead. In the specific context of HIV—the provenance of these amendments is in the National AIDS Trust’s suggestions—it is unlikely that the Secretary of State or their departmental officials will have the specialist knowledge to assess whether there is a risk of harm to an individual by transferring data related to their HIV status to a third country. Given that the activities of government departments are political by their nature, the Secretary of State making these decisions related to the suitability of transfer to third countries may not be viewed as objective by individuals whose personal data is transferred. Many people living with HIV feel comfortable reporting breaches of data protection law in relation to their HIV status to the Information Commissioner’s Office due to its position as an independent regulator, so the National AIDS Trust and others recommend that the Bill places these regulatory powers on the new information commission created by the Bill instead, as this may inspire greater public confidence.
As regards Amendment 114, paragraph 5 of Schedule 5 should contain additional provisions to mandate annual review of the data protection test for each third country to which data is transferred internationally to ensure that the data protection regime in that third country is secure and that people’s personal data, such as their HIV status, will not be shared inappropriately. HIV is criminalised in many countries around the world, and the transfer to these countries of personal data such as an individual’s HIV status could put an individual living with HIV, their partner or their family members at real risk of harm. This is because HIV stigma is incredibly pronounced in many countries, which fosters a real risk of HIV-related violence. Amendment 114 would mandate this annual review.
As regards Amendment 116, new Article 47A(4) to (7) gives the Secretary of State a broad regulation-making power to designate new transfer mechanisms for personal data being sent to a third country in the absence of adequacy regulations. Controllers would be able to rely on these new mechanisms, alongside the existing mechanisms in Article 46 of the UK GDPR, to transfer data abroad. In order to designate new mechanisms, which could be based on mechanisms used in other jurisdictions, the Secretary of State must be satisfied that these are
“capable of securing that the data protection test set out in Article 46 is met”.
The Secretary of State must be satisfied that the transfer mechanism is capable of providing a level of protection for data subjects that is not materially lower than under the UK GDPR and the Data Protection Act. The Government have described this new regulation-making power as a way to future-proof the UK’s GDPR international transfers regime, but they have not been able to point to any transfer mechanisms in other countries that might be suitable to be recognised in UK law, and nor have they set out examples of how new transfer mechanisms might be created.
In addition to not having a clear rationale to take the power, it is not clear how the Secretary of State could be satisfied that a new mechanism is capable of providing the appropriate level of protection for data subjects. This test is meant to be a lower standard than the test for controllers seeking to rely on a transfer mechanism to transfer overseas, which requires them to consider that the mechanism provides the appropriate level of protection. It is not clear to us how the Secretary of State could be satisfied of a mechanism’s capability without having a clear sense of how it would be used by controllers in reality. That is the reason for Amendment 116.
As regards Amendment 130, Ministers have continued all the adequacy decisions that the EU had made in respect of third countries when the UK stopped being subject to EU treaties. The UK also conferred data adequacy on the EEA, but all this was done on a transitional basis. The Bill now seeks to continue those adequacy decisions, but no analysis appears to have been carried out as to whether these jurisdictions confer an adequate level of protection of personal data. This is not consistent with Section 17B(1) of the DPA 2018, which states that the Secretary of State must carry out a review of whether the relevant country that has been granted data adequacy continues to ensure an adequate level of protection, and that these reviews must be carried out at intervals of not more than four years.
In the EU, litigants have twice brought successful challenges against adequacy decisions. Those decisions were deemed unlawful and quashed by the European Court of Justice. It appears that this sort of challenge would not be possible in the UK because the adequacy decisions are being continued by the Bill and therefore through primary legislation. Any challenge to these adequacy decisions could result only in a declaration of incompatibility under the Human Rights Act; it could not be quashed by the UK courts. This is another example of how leaving the EU has diminished the rights of UK citizens compared with their EU counterparts.
As well as tabling those amendments, I support and have signed Amendment 115 in the names of the noble Lords, Lord Bethell and Lord Kirkhope, and I look forward to hearing their arguments in relation to it. In the meantime, I beg to move.
Lord Kirkhope of Harrogate (Con)
My Lords, I rise with some temerity. This is my first visit to this Committee to speak. I have popped in before and have been following it very carefully. The work going on here is enormously important.
I am speaking to Amendment 115, thanks to the indulgence of my noble friend Lord Bethell, who is the lead name on that amendment but has kindly suggested that I start the discussions. I also thank the noble Lord, Lord Clement-Jones, for his support. Amendment 115 has one clear objective and that is to prevent transfer of UK user data to jurisdictions where data rights cannot be enforced and there is no credible right of redress. The word “credible” is important in this amendment.
I thank my noble friend the Minister for his letter of 11 April, which he sent to us to try to mop up a number of issues. In particular, in one paragraph he referred to the question of adequacy, which may also touch on what the noble Lord, Lord Clement-Jones, has just said. The Secretary of State’s powers are also referred to, but I must ask: how, in a fast-moving or unique situation, can all the factors referred to in this long and comprehensive paragraph be considered?
The mechanisms of government and government departments must be thorough and in place to satisfactorily discharge what are, I think, somewhat grand intentions. I say that from a personal point of view, because I was one of those who drafted the European GDPR—another reason I am interested in discussing these matters today—and I was responsible for the adequacy decisions with third countries. The word “adequacy” matters very much in this group, in the same way that we were unable to use “adequacy” when we dealt with the United States and had to look at “equivalence”. Adequacy can work only if one is working to similar parameters. If one is constitutionally looking at different parameters, as is the case in the United States, then the word “equivalence” becomes much more relevant, because, although things cannot be quite the same in the way in which administration or regulation is carried out, if you have an equivalence situation, that can be acceptable and lead to an understanding of the adequacy which we are looking for in terms of others being involved.
I have a marvellous note here, which I am sure noble Lords have already talked about. It says that every day we generate 181 zettabytes of personal data. I am sure noble Lords are all aware of zettabytes, but I will clarify. One zettabyte is 1,000 exabytes—which perhaps makes it simpler to understand—or, if you like, 1 billion trillion bytes. One’s mind just has to get around this, but this is data on our movements, finances, health and families, from our cameras, phones, doorbells and, I am afraid, even from our refrigerators—though Lady Kirkhope refuses point blank to have any kind of detector on her fridge door that will tell anybody anything about us or what we eat. Increasingly, it is also data from our cars. Our every moment is recorded—information relating to everything from shopping preferences to personal fitness to our anxieties, even, as they are displayed or discussed. It is stored by companies that we entrust with that data and we have a right to expect that such sensitive and private data will be protected. Indeed, one of the core principles of data protection, as we all know, is accountability.
Article 79 of the UK GDPR and Section 167 of our Data Protection Act 2018 provide that UK users must have the right to effective judicial remedy in the event of a data protection breach. Article 79 says that
“each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation”.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
I welcome the Committee back after what I hope was a good Easter break for everybody. I thank all those noble Lords who, as ever, have spoken so powerfully in this debate.
I turn to Amendments 111 to 116 and 130. I thank noble Lords for their proposed amendments relating both to Schedule 5, which reforms the UK’s general processing regime for transferring personal data internationally and consolidates the relevant provisions in Chapter 5 of the UK GDPR, and to Schedule 7, which introduces consequential and transitional provisions associated with the reforms.
Amendment 111 seeks to revert to the current list of factors under the UK GDPR that the Secretary of State must consider when making data bridges. With respect, this more detailed list is not necessary as the Secretary of State must be satisfied that the standard of protection in the other country, viewed as a whole, is not materially lower than the standard of protection in the UK. Our new list of key factors is non-exhaustive. The UK courts will continue to be entitled to have regard to CJEU judgments if they choose to do so; ultimately, it will be for them to decide how much regard to have to any CJEU judgment on a similar matter.
I completely understand the strength of noble Lords’ concerns about ensuring that our EU adequacy decisions are maintained. This is also a priority for the UK Government, as I and my fellow Ministers have repeatedly made clear in public and on the Floor of the House. The UK is firmly committed to maintaining high data protection standards, now and in future. Protecting the privacy of individuals will continue to be a national priority. We will continue to operate a high-quality regime that promotes growth and innovation and underpins the trustworthy use of data.
Our reforms are underpinned by this commitment. We believe they are compatible with maintaining our data adequacy decisions from the EU. We have maintained a positive, ongoing dialogue with the EU to make sure that our reforms are understood. We will continue to engage with the European Commission at official and ministerial levels with a view to ensuring that our respective arrangements for the free flow of personal data can remain in place, which is in the best interests of both the UK and the EU.
We understand that Amendments 112 to 114 relate to representations made by the National AIDS Trust concerning the level of protection for special category data such as health data. We agree that the protection of people’s HIV status is vital. It is right that this is subject to extra protection, as is the case for all health data and special category data. As I have said before this Committee previously, we have met the National AIDS Trust to discuss the best solutions to the problems it has raised. As such, I hope that the noble Lord, Lord Clement-Jones, will agree not to press these amendments.
Lord Clement-Jones (LD)
Can the Minister just recap? He said that he met the trust then swiftly moved on without saying what solution he is proposing. Would he like to repeat that, or at least lift the veil slightly?
Viscount Camrose (Con)
The point I was making was only that we have met with it and will continue to do so in order to identify the best possible way to keep that critical data safe.
Lord Clement-Jones (LD)
The Minister is not suggesting a solution at the moment. Is it in the “too difficult” box?
Viscount Camrose (Con)
I doubt that it will be too difficult, but identifying and implementing the correct solution is the goal that we are pursuing, alongside our colleagues at the National AIDS Trust.
Lord Clement-Jones (LD)
I am sorry to keep interrogating the Minister, but that is quite an admission. The Minister says that there is a real problem, which is under discussion with the National AIDS Trust. At the moment the Government are proposing a significant amendment to both the GDPR and the DPA, and in this Committee they are not able to say that they have any kind of solution to the problem that has been identified. That is quite something.
Viscount Camrose (Con)
I am not sure I accept that it is “quite something”, in the noble Lord’s words. As and when the appropriate solution emerges, we will bring it forward—no doubt between Committee and Report.
On Amendment 115, we share the noble Lords’ feelings on the importance of redress for data subjects. That is why the Secretary of State must already consider the arrangements for redress for data subjects when making a data bridge. There is already an obligation for the Secretary of State to consult the ICO on these regulations. Similarly, when considering whether the data protection test is met before making a transfer subject to appropriate safeguards using Article 46, the Government expect that data exporters will also give consideration to relevant enforceable data subject rights and effective legal remedies for data subjects.
Our rules mean that companies that transfer UK personal data must uphold the high data protection standards we expect in this country. Otherwise, they face action from the ICO, which has powers to conduct investigations, issue fines and compel companies to take corrective action if they fail to comply. We will continue to monitor and mitigate a wide range of data security risks, regardless of provenance. If there is evidence of threats to our data, we will not hesitate to take the necessary action to protect our national security.
Baroness Jones of Whitchurch (Lab)
My Lords, we heard from the two noble Lords some concrete examples of where those data breaches are already occurring, and it does not appear to me that appropriate action has been taken. There seems to be a mismatch between what the Minister is saying about the processes and the day-to-day reality of what is happening now. That is our concern, and it is not clear how the Government are going to address it.
Lord Clement-Jones (LD)
My Lords, in a way the Minister is acknowledging that there is a watering down taking place, yet the Government seem fairly relaxed about seeing these issues. If something happens, the Government will do something or other, or the commissioner will. But the Government are proposing to water down Article 45, and that is the essence of what we are all talking about here. We are not satisfied with the current position, and watering down Article 45 will make it even worse; there will be more Yandexes.
Viscount Camrose (Con)
As I said, a number of important points were raised there. First, I would not categorise the changes to Article 45 as watering down—they are intended to better focus the work of the ICO. Secondly, the important points raised with respect to Amendment 115 are points primarily relating to enforcement, and I will write to noble Lords setting out examples of where that enforcement has happened. I stress that the ICO is, as noble Lords have mentioned, an independent regulator that conducts the enforcement of this itself. What was described—I cannot judge for sure—certainly sounded like completely illegal infringements on the data privacy of those subjects. I am happy to look further into that and to write to noble Lords.
Amendment 116 seeks to remove a power allowing the Secretary of State to make regulations recognising additional transfer mechanisms. This power is necessary for the Government to react quickly to global trends and to ensure that UK businesses trading internationally are not held back. Furthermore, before using this power, the Secretary of State must be satisfied that the transfer mechanism is capable of meeting the new Article 46 data protection test. They are also required to consult with the Information Commissioner and such other persons felt appropriate. The affirmative resolution procedure will also ensure appropriate parliamentary scrutiny.
I reiterate that the UK Government’s assessment of the reforms in the Bill is that they are compatible with maintaining adequacy. We have been proactively engaging with the European Commission since the start of the Bill’s consultation process to ensure that it understands our reforms and that we have a positive, constructive relationship. Noble Lords will appreciate that it is important that officials have the ability to conduct candid discussions during the policy-making process. However, I would like to reassure noble Lords once again that the UK Government take the matter of retaining our adequacy decisions very seriously.
Finally, Amendment 130 pertains to EU exit transitional provisions in Schedule 21 to the Data Protection Act 2018, which provide that certain countries are currently deemed as adequate. These countries include the EU and EEA member states and those countries that the EU had found adequate at the time of the UK’s exit from the EU. Such countries are, and will continue to be, subject to ongoing monitoring. As is the case now, if the Secretary of State becomes aware of developments such as changes to legislation or specific practices that negatively impact data protection standards, the UK Government will engage with the relevant authorities and, where necessary, amend or revoke data bridge arrangements.
For these reasons, I hope noble Lords will not press their amendments.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for his response, but I am still absolutely baffled as to why the Government are doing what they are doing on Article 45. The Minister has not given any particular rationale. He has given a bit of a rationale for resisting the amendments, many of which try to make sure that Article 45 is fully effective, that these international transfers are properly scrutinised and that we remain data adequate.
By the way, I thought the noble Lord, Lord Kirkhope, made a splendid entry into our debate, so I hope that he stays on for a number of further amendments—what a début.
The only point on which I disagreed with the noble Lord, Lord Bethell—as the noble Baroness, Lady Jones, said—was when he said that this is a terrific Bill. It is a terrifying Bill, not a terrific one, as we have debated. There are so many worrying aspects—for example, that there is no solution yet for sensitive special category data and the whole issue of these contractual clauses. The Government seem almost to be saying that it is up to the companies to assess all this and whether a country in which they are doing business is data adequate. That cannot be right. They seem to be abrogating their responsibility for no good reason. What is the motive? Is it because they are so enthusiastic about transfer of data to other countries for business purposes that they are ignoring the rights of data subjects?
The Minister resisted describing this as watering down. Why get rid of the list of considerations that the Secretary of State needs to have so that they are just in the mix as something that may or may not be taken into consideration? In the existing article they are specified. It is quite a long list and the Government have chopped it back. What is the motive for that? It looks like data subjects’ rights are being curtailed. We were baffled by previous elements that the Government have introduced into the Bill, but this is probably the most baffling of all because of the real importance of this—its national security implications and the existing examples, such as Yandex, that we heard about from the noble Lord, Lord Kirkhope.
Of course we understand that there are nuances and that there is a difference between adequacy and equivalence. We have to be pragmatic sometimes, but the question of whether these countries having data transferred to them are adequate must be based on principle. This seems to me a prime candidate for Report. I am sure we will come back to it, but in the meantime I beg leave to withdraw.
Baroness Kidron (CB)
My Lords, I support Amendment 135 in the name of the noble Lord, Lord Bethell, to which I have added my name. He set out our struggle during the passage of the Online Safety Bill, when we made several attempts to get something along these lines into the Bill. It is worth actually quoting the Minister, Paul Scully, who said at the Dispatch Box in the other place:
“we have made a commitment to explore this … further and report back to the House in due course on whether further measures to support researcher access to data are required and, if so, whether they could also be implemented through other legislation such as the Data Protection and Digital Information Bill”.—[Official Report, Commons, 12/9/23; col. 806.]
When the Minister responds, perhaps he could update the House on that commitment and explain why the Government decided not to address it in the Bill. Although the Bill proposes a lessening of the protections on the use of personal data for research done by commercial companies, including the development of products and marketing, it does nothing to enable public interest research.
I would like to add to the list that the noble Lord, Lord Bethell, started, because as well as Melanie Dawes, the CEO of Ofcom, so too the United States National Academy of Sciences, the Lancet commission, the UN advisory body on AI, the US Surgeon General, the Broadband Commission and the Australian eSafety Commissioner have all in the last few months called for greater access to independent research.
I ask the noble Viscount to explain the Government’s thinking in detail, and I really do hope that we do not get more “wait and see”, because it does not meet the need. We have already passed online safety legislation that requires evidence, and by denying access to independent researchers, we have a perverse situation in which the regulator has to turn to the companies it is regulating for the evidence to create their codes, which, as the noble Viscount will appreciate, is a formula for the tech companies to control the flow of evidence and unduly temper the intent of the legislation. I wish to make most of my remarks on that subject.
In Ofcom’s consultation on its illegal harms code, the disparity between the harms identified and Ofcom’s proposed code caused deep concern. Volume 4 states the following at paragraph 14.12 in relation to content moderation:
“We are not proposing to recommend some measures which may be effective in reducing risks of harm. This is principally due to currently limited evidence”.
Further reading of volume 4 confirms that the lack of evidence is the given reason for failing to recommend measures across a number of harms. Ofcom has identified harms for which it does not require mitigation. This is not what Parliament intended and spectacularly fails to deliver on the promises made by Ministers. Ofcom can use its information-gathering powers to build evidence on the efficacy required to take a bolder approach to measures but, although that is welcome, it is unsatisfactory for many reasons.
First, given the interconnectedness between privacy, safety, security and competition, regulatory standards cannot be developed in silo. We have a thriving academic community that can work across different risks and identify solutions across different parts of the tech ecosystem.
Secondly, a regulatory framework in which standards are determined exclusively through private dialogue between the regulator and the regulated does not have the necessary transparency and accountability to win public trust.
Thirdly, regulators are overstretched and under-resourced. Our academics stand ready and willing to work in the public interest and in accordance with the highest ethical standards in order to scrutinise and understand the data held so very closely by tech companies, but they need a legal basis to demand access.
Fourthly, if we are to maintain our academic institutions in a post-Brexit world, we need to offer UK academics the same support as those in Europe. Article 40(4) of the European Union’s Digital Services Act requires platforms to
“provide access to data to vetted researchers”
seeking to carry out
“research that contributes to the detection, identification and understanding of systemic risks in the Union, as set out pursuant to Article 34(1), and to the assessment of the adequacy, efficiency and impacts of the risk mitigation measures pursuant to Article 35”.
It will be a considerable loss to the UK academic sector if its European colleagues have access to data that it does not.
Fifthly, by insisting on evidence but not creating a critical pathway to secure it, the Government have created a situation in which the lack of evidence could mean that Ofcom’s codes are fixed at what the tech companies tell it is possible in spring 2024, and will always be backward-looking. There is considerable whistleblower evidence revealing measures that the companies could have taken but chose not to.
I have considerable personal experience of this. For example, it was nearly a decade ago that I told Facebook that direct messaging on children’s accounts was dangerous, yet only now are we beginning to see regulation reflecting that blindingly obvious fact. That is nearly a decade in which something could have been done by the company but was not, and of which the regulator will have no evidence.
Finally, as we discussed on day one in Committee, the Government have made it easier for commercial companies to use personal data for research by lowering the bar for the collection of data and expanding the concept of research, further building the asymmetry that has been mentioned in every group of amendments we have debated thus far. It may not be very parliamentary language, but it is crazy to pass legislation and then obstruct its implementation by insisting on evidence that you have made it impossible to gather.
I would be grateful if the Minister could answer the following questions when he responds. Is it the Government’s intention that Ofcom codes be based entirely on the current practice of tech companies and that the regulator can demand only mitigations that exist currently, as evidenced by those companies? Do the Government agree that whistleblowers, NGO experts and evidence from user experience can be taken by regulators as evidence of what could or should be done? What route do the Government advise Ofcom to take to mitigate identified risks for which there are no current measures in place? For example, should Ofcom describe the required outcome and leave it to the companies to determine how they mitigate the risk, should it suggest mitigations that have been developed but not tried—or is the real outcome of the OSA to identify risk and leave that risk in place?
Do the Government accept that EU research done under the auspices of the DSA should be automatically considered as an adequate basis for UK regulators where the concerns overlap with UK law? Will the new measures announced for testing and sandboxing of AI models allow for independent research, in which academics, independent of government or tech, will have access to data? Finally, what measures will the Government take to mitigate the impact on universities of a brain drain of academics to Europe, if we do not provide equivalent legislative support to enable them to access the data required to study online safety and privacy? If the Minister is unable to answer me from the Dispatch Box, perhaps he will agree to write to me and place his letter in the Library for other noble Lords to read.
Lord Clement-Jones (LD)
My Lords, there is little for me to say. The noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron, have left no stone unturned in this debate. They introduced this amendment superbly, and I pay tribute to them and to Reset, which was with us all the way through the discussions on online harms at the Joint Committee on the draft Online Safety Bill, advocating for these important provisions.
As the noble Lord, Lord Bethell, said, there is a strong body of opinion out there. Insight from what might be called approved independent researchers would enable policy-making and regulatory innovation to keep pace with emerging trends and threats, which can span individual harms, matters of public safety and even national security. We have seen the kinds of harms taking place in social media, and it is absolutely vital that we understand what is happening under the bonnet of social media. It is crucial in detecting, identifying and understanding the systemic risks of online harms and non-compliance with law.
When we discussed the Online Safety Bill, it was a question of not just content but functionality. That was one of the key things. An awful lot of this research relates to that: how algorithms operate in amplifying content and some of the harms taking place on social media. The noble Lord, Lord Bethell, referred to X closing its API for researchers and Meta’s move to shut CrowdTangle. We are going into reverse, whereas we should be moving forward in a much more positive way. When the Online Safety Bill was discussed, we got the review from Ofcom, but we did not get the backup—the legislative power for Ofcom or the ICO to be able to authorise and accredit researchers to carry out the necessary research.
The Government’s response to date has been extremely disappointing, given the history behind this and the pressure and importance of this issue. This dates from discussions some way back, even before the Joint Committee met and heard the case for this kind of researcher access. This Bill is now the best vehicle by which to introduce a proper regime on access for researchers. As the noble Baroness, Lady Kidron, asked, why, having had ministerial assurances, are we not seeing further progress? Are we just going to wait until Ofcom produces its review, which will be at the tail end of a huge programme of work which it has to carry out in order to implement the Online Safety Act?
Lord Clement-Jones
Member’s explanatory statement
This amendment would ensure that “proportionality” continues to be considered by competent authorities when they are deciding whether national security exemptions apply to their processing for the purposes of law enforcement.
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?
Lord Bassam of Brighton (Lab)
Perhaps the same correspondence could cover the point I raised as well.
Lord Clement-Jones (LD)
My Lords, I am immensely grateful to the noble Lords, Lord Anderson and Lord Bassam, for their interventions. In particular, given his background, if the noble Lord, Lord Anderson, has concerns about these clauses, we all ought to have concerns. I am grateful to the Minister for the extent of his unpacking—or attempted unpacking—of these clauses but I feel that we are on a slippery slope here. I feel some considerable unease about the widening of the disapplication of principles that we were assured were immutable only six years ago. I am worried about that.
We have had some reassurance about the right to transparency, perhaps when it is convenient that data subjects find out about what is happening. The right to challenge was also mentioned by the Minister but he has not really answered the question about whether the Home Office has looked seriously at the implications as far as the human rights convention is concerned, which is the reason for the stand part notice. The Minister did not address that matter at all; I do not know why. I am assuming that the Home Office has looked at the clauses in the light of the convention but, again, he did not talk about that.
The only assurance the Minister has really given is that it is all on a case-by-case basis. I do not think that that is much of a reassurance. On the proportionality point made by the noble Lord, Lord Anderson, I think that we are going to be agog in waiting for the Minister’s correspondence on that, but it is such a basic issue. There were two amendments specifically on proportionality but we have not really had a reply on that issue at all, in terms of why it should have been eliminated by the legislation. So a feeling of unease prevails. I do not even feel that the Minister has unpacked fully the issue of joint working; I think that the noble Lord, Lord Anderson, did that more. We need to know more about how that will operate.
The final point that the Minister made gave even greater concern—to think that there will be an SI setting out the bodies that will have the powers. We are probably slightly wiser than when we started out with this group of amendments, but only slightly and we are considerably more concerned. In the meantime, I beg leave to withdraw the amendment.
Lord Clement-Jones (LD)
My Lords, the noble Baroness, Lady Morgan, has done us a service by raising this issue. My question is about whether the advice given to date about redaction is accurate. I have not seen the Home Office’s guidance or counsel’s analysis. I have taken advice on the Police Federation’s case—I received an email and I was very interested in what it had to say, because we all want to make sure that the bureaucracy involved in charging and dealing with the CPS is as minimal as possible within the bounds of data protection law.
Section 35(2)(b) of the Data Protection Act simply requires the police to ensure that their processing is necessary for the performance of their tasks. You would have thought that sending an investigation file to the CPS to decide whether to charge a suspect seems necessary for the performance of that task. Some of that personal data may end up not being relevant to the charge or any trial, but that is a judgment for the CPS and the prosecutor. It does not mean, in the view of those I have consulted, that the file has to be redacted at vast taxpayer cost before the CPS or prosecutor have had a chance to see the investigation’s file. When you look at sensitive data, the test is “strictly necessary”, which is a higher test, but surely the answer to that must be that officers should collect this information only where they consider it relevant to the case. So this can be dealt with through protocols about data protection, which ensure that officers do not collect more sensitive data than is necessary for the purposes of the investigation.
Similarly, under Section 37, the question that the personal data must be adequate, relevant and not excessive in relation to the purpose for which it is processed should not be interpreted in such a way that this redaction exercise is required. If an officer thinks they need to collect the relevant information for the purpose of the investigation, that seems to me—and to those advising me—in broad terms to be sufficient to comply with the principle. Conversely, if officers are collecting too much data, the answer is that they should be trained to avoid doing this. If officers really are collecting more information than they should be, redactions cannot remedy the fact that the collection was unlawful in the first place. The solution seems to be to stop them collecting that data.
I assume—maybe I am completely wrong—that the Minister will utter “suitable guidance” in response to the noble Baroness’s amendment and say that there is no need to amend the legislation, but, if there is no need to do so, I hope that they revise the guidance, because the Police Federation and its members are clearly labouring under a misapprehension about the way the Act should be interpreted. It would be quite a serious matter if that has taken place for the last six years.
Lord Bassam of Brighton (Lab)
My Lords, we should be very grateful to the noble Baroness, Lady Morgan of Cotes, for her amendment. I listened very carefully to her line of argument and find much that we can support in the approach. In that context, we should also thank the Police Federation of England and Wales for a particularly useful and enlightening briefing paper.
We may well be suffering under the law of unintended consequences in this context; it seems to have hit quite hard and acted as a barrier to the sensible processing and transfer of data between two parts of the law enforcement machinery. It is quite interesting coming off the back of the previous debate, when we were discussing making the transfer of information and intelligence between different agencies easier and having a common approach. It is a very relevant discussion to have.
I do not think that the legislation, when it was originally drafted, could ever have been intended to work in the way the Police Federation has set out. The implementation of the Data Protection Act 2018, in so far as law enforcement agencies are concerned, is supposed to be guided by recital 4, which the noble Baroness read into the record and which makes good sense.
As the noble Baroness explained, the Police Federation’s argument that the DPA makes no provisions at all that are designed to facilitate, in effect, the free flow of information, that it should be able to hold all the relevant data prior to the charging decision being made by the CPS, and that redaction should take place only after a decision on charging has been made seems quite a sensible approach. As she argued, it would significantly lighten the burden on police investigating teams and enable the decision on charging to be more broadly informed.
So this is a piece of simplification that we can all support. The case has been made very well. If it helps speed up charging and policing processes, which I know the Government are very concerned about, as all Governments should be, it seems a sensible move—but this is the Home Office. We do not always expect the most sensible things to be delivered by that department, but we hope that they are.
Lord Sharpe of Epsom (Con)
I thank all noble Lords for their contributions—I think. I thank my noble friend Lady Morgan of Cotes for her amendment and for raising what is an important issue. Amendment 137 seeks to permit the police and the Crown Prosecution Service to share unredacted data with one another when making a charging decision. Perhaps to the surprise of the noble Lord, Lord Bassam, we agree: we must reduce the burden of redaction on the police. As my noble friend noted, this is very substantial and costly.
We welcome the intent of the amendment. However, as my noble friend has noted, we do not believe that, as drafted, it would achieve the stated aim. To fully remove it would require the amendment of more than just the Data Protection Act.
However, the Government are committed to reducing the burden on the police, but it is important that we get it right and that the solution is comprehensive. We consider that the objective which my noble friend is seeking would be better achieved through other means, including improved technology and new, simplified guidance to prevent overredaction, as all speakers, including the noble Lord, Lord Clement-Jones, noted.
The Home Office provided £960,000 of funding for text and audio-visual multimedia redaction in the 2023-24 financial year. Thanks to that funding, police forces have been able to procure automated text redaction tools, the trials of which have demonstrated that they could save up 80% of the time spent by the police on this redaction. Furthermore, in the latest Budget, the Chancellor announced an additional £230 million of funding for technology to boost police productivity. This will be used to develop, test and roll out automated audio-visual redaction tools, saving thousands more hours of police time. I would say to my noble friend that, as the technology improves, we hope that the need for it to be supervised by individuals will diminish.
I can also tell your Lordships’ House that officials from the Home Office have consulted with the Information Commissioner’s Office and have agreed that a significant proportion of the burden caused by existing pre-charge redaction processes could be reduced safely and lawfully within the current data protection framework in a way that will maintain standards and protections for individuals. We are, therefore, actively working to tackle this issue in the most appropriate way by exploring how we can significantly reduce the redaction burden at the pre-charge stage through process change within the existing legislative framework. This will involve creating simplified guidance and, obviously, the use of better technology.
Lord Clement-Jones (LD)
Is the Minister almost agreeing with some of my analysis in that case?
Lord Sharpe of Epsom (Con)
No, I think I was agreeing with my noble friend’s analysis.
Lord Sharpe of Epsom (Con)
I thank all noble Lords for their contributions. We acknowledge this particular problem and we are working to fix it. I would ask my noble friend to withdraw her amendment.
Lord Clement-Jones
“(a) to monitor the application of GDPR, the applied GDPR and this Act, and ensure they are fully enforced with all due diligence;(b) to act upon receiving a complaint, to investigate, to the extent appropriate, the subject matter of the complaint, and to take steps to clarify unsubstantiated issues before dismissing the complaint.”Member’s explanatory statement
This amendment clarifies the statutory objective of the Commissioner by removing secondary objectives introduced by the Bill and clarifying role and responsibility of the Commissioner.
Lord Clement-Jones (LD)
My Lords, I will speak also to Amendment 140 and the submissions that Clauses 32 to 35 should not stand part. These amendments are designed to clarify the statutory objective of the new information commission; increase its arm’s-length relationship with the Government; allow effective judicial scrutiny of its regulatory function; allow not-for-profit organisations to lodge representative complaints; retain the Office of the Biometrics and Surveillance Camera Commissioner; and empower the Equality and Human Rights Commission to scrutinise the new information commission. The effective supervision and enforcement of data protection and the investigation and detection of offenders are crucial to achieve deterrence, prevent violations, maintain transparency and control options for redress against data misuse.
Viscount Camrose (Con)
I am very happy to try to find a way forward on this. Let me think about how best to take this forward.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for his response and, in particular, for that exchange. There is a bit of a contrast here—the mood of the Committee is probably to go with the grain of these clauses and to see whether they can be improved, rather than throw out the idea of an information commission and revert to the ICO on the basis that perhaps the information commission is a more logical way of setting up a regulator. I am not sure that I personally agree, but I understand the reservations of the noble Baroness, Lady Jones, and I welcome her support on the aspect of the Secretary of State power.
We keep being reassured by the Minister, in all sorts of different ways. I am sure that the spirit is willing, but whether it is all in black and white is the big question. Where are the real safeguards? The proposals in this group from the noble Baroness, Lady Kidron, to which she has spoken to so well, along with the noble Baroness, Lady Harding, are very modest, to use the phrase from the noble Baroness, Lady Kidron. I hope those discussions will take place because they fit entirely with the architecture of the Bill, which the Government have set out, and it would be a huge reassurance to those who believe that the Bill is watering down data subject rights and is not strengthening children’s rights.
I am less reassured by other aspects of what the Minister had to say, particularly about the Secretary of State’s powers in relation to the codes. As the noble Baroness, Lady Kidron, said, we had a lot of discussion about that in relation to the Ofcom codes, under the Online Safety Bill, and I do not think we got very far on that either. Nevertheless, there is disquiet about whether the Secretary of State should have those powers. The Minister said that the ICO is not required to act in accordance with the advice of the Secretary of State so perhaps the Minister has provided a chink of light. In the meantime, I beg leave to withdraw the amendment.
Baroness Harding of Winscombe (Con)
My Lords, I rise once again in my Robin role to support the noble Baroness, Lady Kidron, on this amendment. We had a debate on 23 November last year that the noble Baroness brought on this very issue of edtech. Rather than repeat all the points that were made in that very useful debate, I point my noble friend the Minister to it.
I would just like to highlight a couple of quick points. First, in supporting this amendment, I am not anti-edtech in any way, shape or form. It is absolutely clear that technology can bring huge benefits to students of all ages but it is also clear that education is not unique. It is exactly like every other part of society: where technology brings benefit, it also brings substantial risk. We are learning the hard way that thinking that any element of society can mitigate the risks of technology without legal guard-rails is a mistake.
We have seen really clearly with the age-appropriate design code that commercial organisations operating under its purview changed the way they protected children’s data as a result of that code. The absence of the equivalent code for the edtech sector should show us clearly that we will not have had those same benefits. If we bring edtech into scope, either through this amendment or simply through extending the age-appropriate design code, I would hazard a strong guess that we would start to see very real improvements in the protection of children’s data.
In the debate on 23 November, I asked my noble friend the Minister, the noble Baroness, Lady Barran, why the age-appropriate design code did not include education. I am not an expert in education, by any stretch of the imagination. The answer I received was that it was okay because the keeping children safe in education framework covered edtech. Since that debate, I have had a chance to read that framework, and I cannot find a section in it that specifically addresses children’s data. There is lots of really important stuff in it, but there is no clearly signposted section in that regard. So even if all the work fell on schools, that framework on its own, as published on GOV.UK, does not seem to meet the standards of a framework for data protection for children in education. However, as the noble Baroness, Lady Kidron, said, this is not just about schools’ responsibility but the edtech companies’ responsibility, and it is clear that there is no section on that in the keeping children safe in education framework either.
The answer that we received last year in this House does not do justice to the real question: in the absence of a specific code—the age-appropriate design code or a specific edtech code—how can we be confident that there really are the guardrails, which we know we need to put in place in every sector, in this most precious and important sector, which is where we teach our children?
Lord Clement-Jones (LD)
My Lords, I am absolutely delighted to be able to support this amendment. Like the noble Baroness, Lady Harding, I am not anti-edtech at all. I did not take part in the debate last year. When I listen to the noble Baroness, Lady Kidron, and even having had the excellent A Blueprint for Education Data from the 5Rights Foundation and the Digital Futures for Children brief in support of a code of practice for education technology, I submit that it is chilling to hear what is happening as we speak with edtech in terms of extraction of data and not complying properly with data protection.
I got involved some years ago with the advisory board of the Institute for Ethical AI in Education, which Sir Anthony Seldon set up with Professor Rose Luckin and Priya Lakhani. Our intention was slightly broader—it was designed to create a framework for the use of AI specifically in education. Of course, one of the very important elements was the use of data, and the safe use of data, both by those procuring AI systems and by those developing them and selling them into schools. That was in 2020 and 2021, and we have not moved nearly far enough since that time. Obviously, this is data specific, because we are talking about the data protection Bill, but what is being proposed here would cure some of the issues that are staring us in the face.
As we have been briefed by Digital Futures for Children, and as the noble Baroness, Lady Kidron, emphasised, there is widespread invasion of children’s privacy in data collection. Sometimes there is little evidence to support the claimed learning benefits, while schools and parents lack the technical and legal expertise to understand what data is collected. As has been emphasised throughout the passage of this Bill, children deserve the highest standards of privacy and data protection—especially in education, of course.
From this direction, I wholly support what the noble Baroness, Lady Kidron, is proposing, so well supported by the noble Baroness, Lady Harding. Given that it again appears that the Government gave an undertaking to bring forward a suitable code of practice but have not done so, there is double reason to want to move forward on this during the passage of the Bill. We very much support Amendment 146 on that basis.