Data Protection and Digital Information Bill

Lord Clement-Jones Excerpts

Committee stage
Wednesday 17th April 2024 Grand Committee

Debate on whether Clause 44 should stand part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, I start today with probably the most innocuous of the amendments, which is that Clause 44 should not stand part. Others are more significant, but its purpose, if one can describe it as such, is as a probing clause stand part, to see whether the Minister can explain the real motive and impact of new Section 164A, which is inserted by Clause 44. As the explanatory statement says, it appears to hinder

“data subjects’ right to lodge complaints, and extends the scope of orders under Section 166 of the Data Protection Act to the appropriateness of the Commissioner’s response to a complaint.”

I am looking to the Minister to see whether he can unpack the reasons for that and what the impact is on data subjects’ rights.

More fundamental is Amendment 153, which relates to Clause 45. This provision inserts new Section 165A into the Data Protection Act, according to which the commissioner would have the discretion to refuse to act on a complaint if the complainant did not try to resolve the infringement of their rights with the relevant organisation and at least 45 days have passed since then. The right to an effective remedy constitutes a core element of data protection—most individuals will not pursue cases before a court, because of the lengthy, time- consuming and costly nature of judicial proceedings—and acts as a deterrent against data protection violations, in so far as victims can obtain meaningful redress. Administrative remedies are particularly useful, because they focus on addressing malpractice and obtaining meaningful changes in how personal data is handled in practice.

However, the ICO indicates that in 2021-22 it did not serve a single GDPR enforcement notice, secured no criminal convictions and issued only four GDPR fines, totalling just £633,000, despite the fact that it received over 40,000 data subject complaints. Moreover, avenues to challenge ICO inaction are extremely limited. Scrutiny of the information tribunal has been restricted to a purely procedural as opposed to a substantive nature. It was narrowed even further by the Administrative Court decision, which found that the ICO was not obliged to investigate each and every complaint.

Amendment 153 would remove Clause 45. The ICO already enjoys a wide margin of discretion and little accountability for how it handles complaints. In light of its poor performance, it does not seem appropriate to expand the discretion of the new information commission even further. It would also extend the scope of orders under Section 166 of the Data Protection Act to the appropriateness of the commissioner’s response to a complaint. This would allow individuals to promote judicial scrutiny over decisions that have a fundamental impact into how laws are enforced in practice and it would increase the overall accountability of the new information commission.

We have signed Amendment 154, in the name of the noble Baroness, Lady Jones, and I look forward to hearing what she says on that. I apologise for the late tabling of Amendments 154A to 154F, which are all related to Amendments 155 and 175. Clause 47 sets out changes in procedure in the courts, in relation to the right of information of a data subject under the 2018 Act, but there are other issues that need resolving around the jurisdiction of the courts and the Upper Tribunal in data protection cases. That is the reason for tabling these amendments.

The High Court’s judgment in the Delo v ICO case held that part of the reasoning in Killock and Veale about the relative jurisdiction of the courts and tribunals was wrong. The Court of Appeal’s decision in the Delo case underlines concerns, but does not properly address the jurisdictions’ limits in Sections 166 and 167 of the 2018 Act, regarding the distinction between determining procedural failings or the merits of decisions by the ICO. Surely jurisdiction under these sections should be in either the courts or the tribunals, not both. In the view of many, including me, it should be in the tribunals. That is what these amendments seek.

It is clear from these two judgments that there was disagreement on the extent of the jurisdiction of tribunals and courts, notably between Mrs Justice Farbey and Mr Justice Mostyn. The commissioner submitted very different submissions to the Upper Tribunal, the High Court and the Court of Appeal, in relation to the extent and limits of Sections 166 and 167. It is not at all clear what Parliament’s intentions were, when passing the 2018 Act, on the extents and limits of the powers in these sections and whether the appropriate source of redress is a court or tribunal.

This has resulted in jurisdictional confusion. A large number of claims have been brought in either the courts or the tribunals, under either Section 166 or Section 167, and the respective court or tribunal has frequently ruled that the claim should have been made under the other section and it therefore does not have jurisdiction, so that the claim is struck out. The Bill offers a prime opportunity to resolve this issue.

Clause 45(5), which creates new Section 166A, would only blur the lines even more and fortify the reasoning for the claim to be put into the tribunals, rather than the courts. These amendments would give certainty to the courts and tribunals as to their powers and would be much less confusing for litigants in person, most of whom do not have the luxury of paying hundreds of thousands in court fees. This itself is another reason for this to remain in the tribunals, which do not charge fees to issue proceedings.

The proposed new clause inserted by Amendment 287 would require the Secretary of State to exercise powers under Section 190 of the 2018 Act to allow public interest organisations to raise data protection complaints on behalf of individuals generally, without the need to obtain the authorisation of each individual being represented. It would therefore implement Article 80(2) of the GDPR, which provides:

“Member States may provide that any body, organisation or association referred to in paragraph 1 of this Article, independently of a data subject’s mandate, has the right to lodge, in that Member State, a complaint with the supervisory authority which is competent pursuant to Article 77 and to exercise the rights referred to in Articles 78 and 79 if it considers that the rights of a data subject under this Regulation have been infringed as a result of the processing”.


The intention behind Article 80(2) is to allow appropriately constituted organisations to bring proceedings concerning infringements of the data protection regulations in the absence of the data subject. That is to ensure that proceedings may be brought in response to an infringement, rather than on the specific facts of an individual’s case. As a result, data subjects are, in theory, offered greater and more effective protection of their rights. Actions under Article 80(2) could address systemic infringements that arise by design, rather than requiring an individual to evidence the breaches and the specific effects to them.

At present, an affected individual—a data subject—is always required to bring a claim or complaint to a supervisory authority. Whether through direct action or under Section 187 of the 2018 Act, a data subject will have to be named and engaged. In practice, a data subject is not always identifiable or willing to bring action to address even the most egregious conduct.

Article 80(2) would fill a gap that Article 80(1) and Section 187 of the Data Protection Act are not intended to fill. Individuals can be unwilling to seek justice, exercise their rights and lodge data protection complaints on their own, either for fear of retaliation from a powerful organisation or because of the stigma that may be associated with the matter where a data protection violation occurred. Even a motivated data subject may be unwilling to take action due to the risks involved. For instance, it would be reasonable for that data subject not to want to become involved in a lengthy, costly legal process that may be disproportionate to the loss suffered or remedy available. This is particularly pressing where the infringement concerns systemic concerns rather than where an individual has suffered material or non-material damage as a result of the infringement.

Civil society organisations have long helped complainants navigate justice systems in seeking remedies in the data protection area, providing a valuable addition to the enactment of UK data protection laws. My Amendment 287 would allow public interest organisations to lodge representative complaints, even without the mandate of data subjects, to encourage the filing of well-argued, strategically important cases with the potential to improve significantly the data subject landscape as a whole. This Bill is the ideal opportunity for the Government to implement fully Article 80(2) of the GDPR from international law and plug a significant gap in the protection of UK citizens’ privacy.

In effect, this is unfinished business from our debates on the 2018 Act, when we made several attempts to persuade the Government of the merits of introducing the rights under Article 80(2). I hope that the Government will think again. These are extremely important rights and are available in many other countries governed by a similar GDPR. I beg to move.

[Baroness Kidron (CB)]

My Lords, as a veteran of the 2018 arguments on Article 80(2), I rise in support of Amendment 287, which would see its implementation.

Understanding and exercising personal data rights is not straightforward. Even when the rights are being infringed, it is rare that an individual data subject has the time, knowledge or ability to make a complaint to the ICO. This is particularly true for vulnerable groups, including children and the elderly, disadvantaged groups and other groups of people, such as domestic abuse survivors or members of the LGBTQ community, who may have specific reasons for not identifying themselves in relation to a complaint. It is a principle in law that a right that cannot be activated is not fully given.

A data subject’s ability to claim protection is constrained by a range of factors, none of which relates to the validity of their complaint or the level of harm experienced. Rather, the vast majority are prevented from making a complaint by a lack of expertise, capacity, time and money; by the fact that they are not aware that they have data rights; or by the fact that they understand neither that their rights have been infringed nor how to make a complaint about them.

I have considerable experience of this. I remind the Committee that I am chair of the 5Rights Foundation, which has raised important and systemic issues of non-compliance with the AADC. It has done this primarily by raising concerns with the ICO, which has then undertaken around 40 investigations based on detailed submissions. However, because the information is not part of a formalised process, the ICO has no obligation to respond to the 5Rights Foundation team, the three-month time limit for complaints does not apply and, even though forensic work by the 5Rights Foundation identified the problem, its team is not consulted or updated on progress or the outcome—all of which would be possible had it submitted the information as a formal complaint. I remind the Committee that in these cases we are talking about complaints involving children.

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[Lord Clement-Jones (LD)]

My Lords, just so that the Minister might get a little note, I will ask a question. He has explained what is possible—what can be done—but not why the Government still resist putting Article 80(2) into effect. What is the reason for not adopting that article?

[Viscount Camrose (Con)]

The reason was that an extensive consultation was undertaken in 2021 by the Government, and the Government concluded at that time that there was insufficient evidence to take what would necessarily be a complex step. That was largely on the grounds that class actions of this type can go forward either as long as they have the consent of any named individuals in the class action or on behalf of a group of individuals who are unnamed and not specifically raised by name within the investigation itself.

[Lord Clement-Jones (LD)]

Perhaps the Minister could in due course say what evidence would help to persuade the Government to adopt the article.

[Lord Bassam of Brighton (Lab)]

I want to help the Minister. Perhaps he could give us some more detail on the nature of that consultation and the number of responses and what people said in it. It strikes me as rather important.

[Viscount Camrose (Con)]

Fair enough. Maybe for the time being, it will satisfy the Committee if I share a copy of that consultation and what evidence was considered, if that would work.

I will turn now to Amendments 154A to 155 and Amendment 175, which propose sweeping modifications to the jurisdiction of the court and tribunal for proceedings under the Data Protection Act 2018. These amendments would have the effect of making the First-tier Tribunal and Upper Tribunal responsible for all data protection cases, transferring both ongoing and future cases out of the court system and to the relevant tribunals.

The Government of course want to ensure that proceedings for enforcement of data protection rules, including redress routes available to data subjects, are appropriate for the nature of the complaint. As the Committee will be well aware, at present there is a mixture of jurisdiction for tribunals and courts under data protection legislation, depending on the precise nature of the proceedings in question. Tribunals are indeed the appropriate venue for some data protection proceedings, and the legislation already recognises that—for example, for application by data subjects for an order requiring the ICO to progress their complaint. However, courts are generally the more appropriate venue for cases involving claims for compensation and successful parties can usually recover their costs. Courts also apply stricter rules of procedure and evidence than tribunals. That is because some cases are appropriate to fall under the jurisdiction of the tribunal, while others are more appropriate for court jurisdiction. For example, claims by individuals against organisations for breaches of legal requirements can result in awards of compensatory damages for the individuals and financial and reputational damage for the organisations. It is appropriate that such cases are handled by a court in accordance with its strict procedural and evidential rules, where the data subject may recover their costs if successful.

As such, the Government are confident that the current system is balanced and proportionate and provides clear and effective administrative and judicial redress routes for data subjects seeking to exercise their rights.

[Lord Clement-Jones (LD)]

My Lords, is the Minister saying that there is absolutely no confusion between the jurisdiction of the tribunals and the courts? That is, no court has come to a different conclusion about jurisdiction—for example, as to whether procedural matters are for tribunals and merits are for courts or vice versa. Is he saying that everything is hunky-dory and clear and that we do not need to concern ourselves with this crossover of jurisdiction?

[Viscount Camrose (Con)]

No, as I was about to say, we need to take these issues seriously. The noble Lord raised a number of specific cases. I was unfamiliar with them at the start of the debate—

[Lord Clement-Jones (LD)]

So was I.

[Viscount Camrose (Con)]

I will go away and look at those; I look forward to learning more about them. There are obvious implications in what the noble Lord said as to the most effective ways of distributing cases between courts and other channels.

For these reasons, I hope that the noble Lord will withdraw his amendment.

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[Viscount Camrose (Con)]

I would be very happy to participate in that discussion, absolutely.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response. I have surprised myself: I have taken something positive away from the Bill.

The noble Baroness, Lady Jones, was quite right to be more positive about Clause 44 than I was. The Minister unpacked its relationship with Clause 45 well and satisfactorily. Obviously, we will read Hansard before we jump to too positive a conclusion.

On Article 80(2), I am grateful to the Minister for agreeing both to go back to the consultation and to look at the kinds of evidence that were brought forward, because this is a really important aspect for many civil society organisations. He underestimates the difficulties faced when bringing complaints of this nature. I would very much like this conversation to go forward because this issue has been quite a bone of contention; the noble Baroness, Lady Kidron, remembers that only too well. We may even have had ping-pong on the matter back in 2017. There is an appetite to keep on the case so, the more we can discuss this matter—between Committee and Report in particular—the better, because there is quite a head of steam behind it.

As far as the jurisdiction point is concerned, I think this may be the first time I have heard a Minister talk about the Sorting Hat. I was impressed: I have often compared this place to Hogwarts but the concept of using the Sorting Hat to decide whether a case goes to a tribunal or a court is a wonderful one. You would probably need artificial intelligence to do that kind of thing nowadays; that in itself is a bit of an issue because, after all, these may be elaborate amendments but, as the noble Lord, Lord Bassam, said, the case being made here is about the possibility of there being confusion and things not being clear in terms of where jurisdiction lies. It is really important that we determine whether the courts and tribunals themselves understand this and, perhaps more appropriately, whether they have differing views about it.

We need to get to grips with this; the more the Minister can dig into it, and into Delo, Killock and so on, the better. We are all in the foothills here but I am certainly not going to try to unpack those two judgments and the differences between Mrs Justice Farbey and Mr Justice Mostyn, which are well beyond my competency. I thank the Minister.

Clause 44 agreed.

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[Viscount Camrose (Con)]

My Lords, the UK has rightly moved away from the EU concept of supremacy, under which retained EU law would always take precedence over domestic law when they were in conflict. That is clearly unacceptable now that we have left the EU. However, we understand that the effective functioning of our data protection legislation is of critical importance and it is appropriate for us to specify the appropriate relationship between UK and EU-derived pieces of legislation following implementation of the Retained EU Law (Revocation and Reform) Act, or REUL. That is why I am introducing a number of specific government amendments to ensure that the hierarchy of legislation works in the data protection context. These are Amendments 156 to 164 and 297.

Noble Lords may be aware that Clause 49 originally sought to clarify the relationship between the UK’s data protection legislation, specifically the UK GDPR and EU-derived aspects of the Data Protection Act 2018, and future data processing provisions in other legislation, such as powers to share or duties to disclose personal data, as a result of some legal uncertainty created by the European Union (Withdrawal) Act 2018. To resolve this uncertainty, Clause 49 makes it clear that all new data processing provisions in legislation should be read consistently with the key requirements of the UK data protection legislation unless it is expressly indicated otherwise. Since its introduction, the interpretation of pre-EU exit legislation has been altered and there is a risk that this would produce the wrong effect in respect of the interpretation of existing data processing provisions that are silent about their relationship with the data protection legislation.

Amendment 159 will make it clear that the full removal of the principle of EU law supremacy and the creation of a reverse hierarchy in relation to assimilated direct legislation, as provided for in the REUL Act, do not change the relationship between the UK data protection legislation and existing legislation that is in force prior to commencement of Clause 49(2). Amendment 163 makes a technical amendment to the EU withdrawal Act, as amended, to support this amendment.

Amendment 162 is similar to the previous amendment but it concerns the relationship between provisions relating to certain obligations and rights under data protection legislation and on restrictions and prohibitions on the disclosure of information under other existing legislation. Existing Section 186 of the Data Protection Act 2018 governs this relationship. Amendment 162 makes it clear that the relationship between these two types of provision is not affected by the changes to the interpretation of legislation that I have already referred to made by the REUL Act. Additionally, it clarifies that, in relation to pre-commencement legislation, Section 186(1) may be disapplied expressly or impliedly.

Amendment 164 relates to the changes brought about by the REUL Act and sets out that the provisions detailed in earlier Amendments 159, 162 and 163 are to be treated as having come into force on 1 January 2024—in other words, at the same time as commencement of the relevant provisions of the REUL Act.

Amendment 297 provides a limited power to remove provisions that achieve the same effect as new Section 183A from legislation made or passed after this Bill receives Royal Assent, as their presence could cause confusion.

Finally, Amendments 156 and 157 are consequential. Amendments 158, 160 and 161 are minor drafting changes made for consistency, updating and consequential purposes.

Turning to the amendments introduced by the noble Lord, Lord Clement-Jones, I hope that he can see from the government amendments to Clause 49 that we have given a good deal of thought to the impact of the REUL Act 2023 on the UK’s data protection framework and have been prepared to take action on this where necessary. We have also considered whether some of the changes made by the REUL Act could cause confusion about how the UK GDPR and the Data Protection Act 2018 interrelate. Following careful analysis, we have concluded that they would largely continue to be read alongside each other in the intended way, with the rules of the REUL Act unlikely to interfere with this. Any new general rule such as that suggested by the noble Lord could create confusion and uncertainty.

Amendments 168 to 170, 174, 174A and 174B seek to reverse changes introduced by the REUL Act at the end of 2023, specifically the removal of EU general principles from the statute book. EU general principles and certain EU-derived rights had originally been retained by the European Union (Withdrawal) Act to ensure legal continuity at the end of the transition period, but this was constitutionally novel and inappropriate for the long term.

The Government’s position is that EU law concepts should not be used to interpret domestic legislation in perpetuity. The REUL Act provided a solution to this by repealing EU general principles from UK law and clarifying the approach to be taken domestically. The amendments tabled by the noble Lord, Lord Clement-Jones, would undo this important work by reintroducing to the statute book references to rights and principles which have not been clearly defined and are inappropriate now that we have left the EU.

The protection of personal data already forms part of the protection offered by the European Convention on Human Rights, under the Article 8 right to respect for private and family life, and is further protected by our data protection legislation. The UK GDPR and the Data Protection Act 2018 provide a comprehensive set of rules for organisations to follow and rights for people in relation to the use of their data. Seeking to apply an additional EU right to data protection in UK law would not significantly affect the way the data protection framework functions or enhance the protections it affords to individuals. Indeed, doing so may well add unnecessary uncertainty and complexity.

Amendments 171 to 173 pertain to exemptions to specified data subject rights and obligations on data controllers set out in Schedules 2 to 4 to the DPA 2018. The 36 exemptions apply only in specified circumstances and are subject to various safeguards. Before addressing the amendments the noble Lord has tabled, it is perhaps helpful to set out how these exemptions are used. Personal data must be processed according to the requirements set out in the UK GDPR and the DPA 2018. This includes the key principles of lawfulness, fairness and transparency, data minimisation and purpose limitation, among others. The decision to restrict data subjects’ rights, such as the right to be notified that their personal data is being processed, or limit obligations on the data controller, comes into effect only if and when the decision to apply an exemption is taken. In all cases, the use of the exemption must be both necessary and proportionate.

One of these exemptions, the immigration exemption, was recently amended in line with a court ruling that found it was incompatible with the requirements set out in Article 23. This exemption is used by the Home Office. The purpose of Amendments 171 to 173 is to extend the protections applied to the immigration exemption across the other exemptions subject to Article 23, apart from in Schedule 4, where the requirement to consider whether its application prejudices the relevant purposes is not considered relevant.

The other exemptions are each used in very different circumstances, by different data controllers—from government departments to SMEs—and work by applying different tests that function in a wholly different manner from the immigration exemption. This is important to bear in mind when considering these broad-brush amendments. A one-size-fits-all approach would not work across the exemption regime.

It is the Government’s position that any changes to these important exemptions should be made only after due consideration of the circumstances of that particular exemption. In many cases, these amendments seek to make changes that run counter to how the exemption functions. Making changes across the exemptions via this Bill, as the noble Lord’s amendments propose, has the potential to have significant negative impacts on the functioning of the exemptions regime. Any potential amendments to the other exemptions would require careful consideration. The Government note that there is a power to make changes to the exemptions in the DPA 2018, if deemed necessary.

For the reasons I have given, I look forward to hearing more from the noble Lord on his amendments, but I hope that he will not press them. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for that very careful exposition. I feel that we are heavily into wet towel, if not painkiller, territory here, because this is a tricky area. As the Minister might imagine, I will not respond to his exposition in detail, at this point; I need to run away and get some external advice on the impact of what he said. He is really suggesting that the Government prefer a pick ‘n’ mix approach to what he regards as a one size fits all. I can boil it down to that. He is saying that you cannot just apply the rules, in the sense that we are trying to reverse some of the impacts of the previous legislation. I will set out my stall; no doubt the Minister and I, the Box and others, will read Hansard and draw our own conclusions at the end, because this is a complicated area.

Until the end of 2023, the Data Protection Act 2018 had to be read compatibly with the UK GDPR. In a conflict between the two instruments, the provisions of the UK GDPR would prevail. The reversing of the relationship between the 2018 Act and the UK GDPR, through the operation of the Retained EU Law (Revocation and Reform) Act—REUL, as the Minister described it—has had the effect of lowering data protection rights in the UK. The case of the Open Rights Group and the3million v the Secretary of State for the Home Office and the Secretary of State for Digital, Culture, Media and Sport was decided after the UK had left the EU, but before the end of 2023. The Court of Appeal held that exemptions from data subject rights in an immigration context, as set out in the Data Protection Act, were overly broad, contained insufficient safeguards and were incompatible with the UK GDPR. The court disapplied the exemptions and ordered the Home Office to redraft them to include the required safeguards. We debated the regulations the other day, and many noble Lords welcomed them on the basis that they had been revised for the second time.

This sort of challenge is now not possible, because the relationship between the DPA and the UK GDPR has been turned on its head. If the case were brought now, the overly broad exemptions in the DPA would take precedence over the requirement for safeguards set out in the UK GDPR. These points were raised by me in the debate of 12 December, when the Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023 were under consideration. In that debate, the noble Baroness, Lady Swinburne, stated that

“we acknowledge the importance of making sure that data processing provisions in wider legislation continue to be read consistently with the data protection principles in the UK GDPR … Replication of the effect of UK GDPR supremacy is a significant decision, and we consider that the use of primary legislation is the more appropriate way to achieve these effects, such as under Clause 49 where the Government consider it appropriate”.—[Official Report, 12/12/23; col. GC 203.]

This debate on Clause 49 therefore offers an opportunity to reinstate the previous relationship between the UK GDPR and the Data Protection Act. The amendment restores the hierarchy, so that it guarantees the same rights to individuals as existed before the end of 2023, and avoids unforeseen consequences by resetting the relationship between the UK GDPR and the DPA 2018 to what the parliamentary draftsmen intended when the Act was written. The provisions in Clause 49, as currently drafted, address the relationship between domestic law and data protection legislation as a whole, but the relationship between the UK GDPR and the DPA is left in its “reversed” state. This is confirmed in the Explanatory Notes to the Bill at paragraph 503.

The purpose of these amendments is to restore data protection rights in the UK to what they were before the end of 2023, prior to the coming into force of REUL. The amendments would restore the fundamental right to the protection of personal data in UK law; ensure that the UK GDPR and the DPA continue to be interpreted in accordance with the fundamental right to the protection of personal data; ensure that there is certainty that assimilated case law that references the fundamental right to the protection of personal data still applies; and apply the protections required in Article 23 of the UK GDPR to all the relevant exemptions in Schedule 2 to the Data Protection Act. This is crucial in avoiding diminishing trust in our data protection frameworks. If people do not trust that their data is protected, they will refuse to share it. Without this data, new technologies cannot be developed, because these technologies rely on personal data. By creating uncertainty and diminishing standards, the Government are undermining the very growth in new technologies that they want.

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[Lord Vaux of Harrowden (CB)]

My Lords, I have added my name to Amendment 195ZA—I will get to understand where these numbers come from, at some point—in the name of the noble Lord, Lord Kamall, who introduced it so eloquently. I will try to be brief in my support.

For many people, probably most, the use of online digital verification will be a real benefit. The Bill puts in place a framework to strengthen digital verification so, on the whole, I am supportive of what the Government are trying to do, although I think that the Minister should seriously consider the various amendments that the noble Baroness, Lady Jones of Whitchurch, has proposed to strengthen parliamentary scrutiny in this area.

However, not everyone will wish to use digital verification in all cases, perhaps because they are not sufficiently confident with technology or perhaps they simply do not trust it. We have already heard the debates around the advances of AI and computer-based decision-making. Digital identity verification could be seen to be another extension of this. There is a concern that Part 2 of the Bill appears to push people ever further towards decisions being taken by a computer.

I suspect that many of us will have done battle with some of the existing identity verification systems. In my own case, I can think of one bank where I gave up in deep frustration as it insisted on telling me that I was not the same person as my driving licence showed. I have also come up against systems used by estate agents when trying to provide a guarantee for my student son that was so intrusive that I, again, refused to use it.

Therefore, improving verification services is to be encouraged but there must be some element of choice, and if someone does not have the know-how, confidence, or trust in the systems, they should be able to do so through some non-digital alternative. They should not be barred from using relevant important services such as, in my examples, banking and renting a property because they cannot or would prefer not to use a digital verification service.

At the very least, even if the Minister is not minded to accept that amendment, I hope that he can make clear that the Government have no intention to make digital ID verification mandatory, as some have suggested that this Part 2 may be driving towards.

[Lord Clement-Jones (LD)]

My Lords, this is quite a disparate group of amendments. I support Amendment 195ZA, which I have signed. I thought that the noble Baroness, Lady Jones, and the noble Lords, Lord Kamall and Lord Vaux, have made clear the importance of having a provision such as this on the statute book. It is important that an individual can choose whether to use digital or non-digital means of verifying their identity. It is important for the liberty and equality of individuals as well as to cultivate trust in what are essentially growing digital identity systems. The use of the word “empower” in these circumstances is important. We need to empower people rather than push them into digital systems that they may not be able to access. Therefore, a move towards digitalisation is not a justification for compelling individuals to use systems that could compromise their privacy or rights more broadly. I very much support that amendment on that basis.

I also very much support the amendments of the noble Baroness, Lady Jones, which I have signed. The Delegated Powers and Regulatory Reform Committee could not have made its recommendations clearer. The Government are serial offenders in terms of skeleton Bills. We have known that from remarks made by the noble Lord, Lord Hodgson, on the Government Benches over a long period. I am going to be extremely interested in what the Government have to say. Quite often, to give them some credit, they listen to what the DPRRC has to say and I hope that on this occasion the Minister is going to give us some good news.

This is an extremely important new system being set up by the Government. We have been waiting for the enabling legislation for quite some time. It is pretty disappointing, after all the consultations that have taken place, just how skeletal it is. No underlying principles have been set out. There is a perfectly good set of principles set out by the independent Privacy and Consumer Advisory Group that advises the Government on how to provide a simple, trusted and secure means of accessing public services. But what assurance do we have that we are going to see those principles embedded in this new system?

Throughout, it is vital that the Secretary of State is obliged to uphold the kinds of concerns being raised in the development of this DVS trust framework to ensure that those services protect the people who use them. We need that kind of parliamentary debate and it has been made quite clear that we need nothing less than that. I therefore very much support what the noble Baroness, Lady Jones, had to say on that subject.

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[Viscount Camrose (Con)]

I thank the noble Lord, Lord Clement-Jones, the noble Baroness, Lady Jones, and my noble friend Lord Kamall for their amendments. To address the elephant in the room first, I can reassure noble Lords that the use of digital identity will not be mandatory, and privacy will remain one of the guiding principles of the Government’s approach to digital identity. There are no plans to introduce a centralised, compulsory digital ID system for public services, and the Government’s position on physical ID cards remains unchanged. The Government are committed to realising the benefits of digital identity technologies without creating ID cards.

I shall speak now to Amendment 177, which would require the rules of the DVS trust framework to be set out in regulations subject to the affirmative resolution procedure. I recognise that this amendment, and others in this group, reflect recommendations from the DPRRC. Obviously, we take that committee very seriously, and we will respond to that report in due course, but ahead of Report.

Part 2 of the Bill will underpin the DVS trust framework, a document of auditable rules, which include technical standards. The trust framework refers to data protection legislation and ICO guidance. It has undergone four years of development, consultation and testing within the digital identity market. Organisations can choose to have their services certified against the trust framework to prove that they provide secure and trustworthy digital verification services. Certification is provided by independent conformity assessment bodies that have been accredited by the UK Accreditation Service. Annual reviews of the trust framework are subject to consultation with the ICO and other appropriate persons.

Requiring the trust framework to be set out in regulations would make it hard to introduce reactive changes. For example, if a new cybersecurity threat emerged which required the rapid deployment of a fix across the industry, the trust framework would need to be updated very quickly. Developments in this fast-growing industry require an agile approach to standards and rule-making. We cannot risk the document becoming outdated and losing credibility with industry. For these reasons, the Government feel that it is more appropriate for the Secretary of State to have the power to set the rules of the trust framework with appropriate consultation, rather than for the power to be exercised by regulations.

I turn to Amendments 178 to 195, which would require the fees that may be charged under this part of the Bill to be set out in regulations subject to the negative resolution procedure. The Government have committed to growing a market of secure and inclusive digital identities as an alternative to physical proofs of identity, for those that choose to use them. Fees will be introduced only once we are confident that doing so will not restrict the growth of this market, but the fee structure, when introduced, is likely to be complex and will need to flex to support growth in an evolving market.

There are built-in safeguards to this fee-charging power. First, there is a strong incentive for the Secretary of State to set fees that are competitive, fair and reasonable, because failing to do so would prevent the Government realising their commitment to grow this market. Secondly, these fee-raising powers have a well-defined purpose and limited scope. Thirdly, the Secretary of State will explain in advance what fees she intends to charge and when she intends to charge them, which will ensure the appropriate level of transparency.

The noble Baroness, Lady Jones, asked about the arrangements for the office for digital identities and attributes. It will not initially be independent, as it will be located within the Department for Science, Innovation and Technology. As we announced in the government response to our 2021 consultation, we intend for this to be an interim arrangement until a suitable long-term home for the governing body can be identified. Delegating the role of Ofdia—as I suppose we will call it—to a third party in the future, is subject to parliamentary scrutiny, as provided for by the clauses in the Bill. Initially placing Ofdia inside government will ensure that its oversight role could mature in the most effective way and that it supports the digital identity market in meeting the needs of individual users, relying parties and industry.

Digital verification services are independently certified against the trust framework rules by conformity assessment bodies. Conformity assessment bodies are themselves independently accredited by the UK Accreditation Service to ensure that they have the competence and impartiality to perform certification. The trust framework certification scheme will be accredited by the UK Accreditation Service to give confidence that the scheme can be efficiently and competently used to certify products, processes and services. All schemes will need to meet internationally agreed standards set out by the UK Accreditation Service. Ofdia, as the owner of the main code, will work with UKAS to ensure that schemes are robust, capable of certification and operated in line with the trust framework.

Amendment 184A proposes to exclude certified public bodies from registering to provide digital verification services. The term “public bodies” could include a wide range of public sector entities, including institutions such as universities, that receive any public funding. The Government take the view that this exclusion would be unnecessarily restrictive in the UK’s nascent digital identity market.

Amendment 195ZA seeks to mandate organisations to implement a non-digital form of verification in every instance where a digital method is required. The Bill enables the use of secure and inclusive digital identities across the economy. It does not force businesses or individuals to use them, nor does it insist that businesses which currently accept non-digital methods of verification must transition to digital methods. As Clause 52 makes clear, digital verification services are services that are provided at the request of the individual. The purpose of the Bill is to ensure that, when people want to use a digital verification service, they know which of the available products and services they can trust.

Some organisations operate only in the digital sphere, such as online-only banks and energy companies. To oblige such organisations to offer manual document checking would place obligations on them that would go beyond the Government’s commitment to do only what is necessary to enable the digital identity market to grow. In so far as this amendment would apply to public authorities, the Equality Act requires those organisations to consider how their services will affect people with protected characteristics, including those who, for various reasons, might not be able or might choose not to use a digital identity product.

[Lord Clement-Jones (LD)]

Is the Minister saying that, as a result of the Equality Act, there is an absolute right to that analogue—if you like—form of identification if, for instance, someone does not have access to digital services?

[Lord Kamall (Con)]

I understand that some services are purely digital, but some of those may well not have digital ID. We do not know what future services there might be, so they might want to show an analogue ID. Is my noble friend saying that that will not be possible because it will impose too much of a burden on those innovative digital companies? Could he clarify what he said?

[Viscount Camrose (Con)]

On this point, the argument that the Government are making is that, where consumers want to use a digital verification service, all the Bill does is to provide a mechanism for those DVSs to be certified and assured to be safe. It does not seek to require anything beyond that, other than creating a list of safe DVSs.

The Equality Act applies to the public sector space, where it needs to be followed to ensure that there is an absolute right to inclusive access to digital technologies.

[Lord Clement-Jones (LD)]

My Lords, in essence, the Minister is admitting that there is a gap when somebody who does not have access to digital services needs an identity to deal with the private sector. Is that right?

[Lord Vaux of Harrowden (CB)]

In the example I gave, I was not willing to use a digital system to provide a guarantee for my son’s accommodation in the private sector. I understand that that would not be protected and that, therefore, someone might not be able to rent a flat, for example, because they cannot provide physical ID.

[Viscount Camrose (Con)]

The Bill does not change the requirements in this sense. If any organisation chooses to provide its services on a digital basis only, that is up to that organisation, and it is up to consumers whether they choose to use it. It makes no changes to the requirements in that space.

I will now speak to the amendment that seeks to remove Clause 80. Clause 80 enables the Secretary of State to ask accredited conformity assessment bodies and registered DVS providers to provide information which is reasonably required to carry out her functions under Part 2 of the Bill. The Bill sets out a clear process that the Secretary of State must follow when requesting this information, as well as explicit safeguards for her use of the power. These safeguards will ensure that DVS providers and conformity assessment bodies have to provide only information necessary for the functioning of this part of the Bill.

[Lord Clement-Jones (LD)]

My Lords, the clause stand part amendment was clearly probing. Does the Minister have anything to say about the relationship with OneLogin? Is he saying that it is only information about systems, not individuals, which does not feed into the OneLogin identity system that the Government are setting up?

[Viscount Camrose (Con)]

It is very important that the OneLogin system is entirely separate and not considered a DVS. We considered whether it should be, but the view was that that comes close to mandating a digital identity system, which we absolutely want to avoid. Hence the two are treated entirely differently.

[Lord Clement-Jones (LD)]

That is a good reassurance, but if the Minister wants to unpack that further by correspondence, I would be very happy to have that.

[Viscount Camrose (Con)]

I am very happy to do so.

I turn finally to Amendments 289 and 300, which aim to introduce a criminal offence of digital identity theft. The Government are committed to tackling fraud and are confident that criminal offences already exist to cover the behaviour targeted by these amendments. Under the Fraud Act 2006, it is a criminal offence to make a gain from the use of another person’s identity or to cause or risk a loss by such use. Where accounts or databases are hacked into, the Computer Misuse Act 1990 criminalises the unauthorised access to a computer programme or data held on a computer.

Furthermore, the trust framework contains rules, standards and good practice requirements for fraud monitoring and responding to fraud. These rules will further defend systems and reduce opportunities for digital identity theft.

[Lord Clement-Jones (LD)]

My Lords, I am sorry, but this is a broad-ranging set of amendments, so I need to intervene on this one as well. When the Minister does his will write letter in response to today’s proceedings, could he tell us what guidance there is to the police on this? Because when the individual, Mr Arron, approached the police, they said, “Oh, sorry, there’s nothing we can do; identity theft is not a criminal offence”. The Minister seems to be saying, “No, it is fine; it is all encompassed within these provisions”. While he may be saying that, and I am sure he will be shouting it from the rooftops in the future, the question is whether the police have guidance; does the College of Policing have guidance and does the Home Office have guidance? The ordinary individual needs to know that it is exactly as the Minister says, and identity theft is covered by these other criminal offences. There is no point in having those offences if nobody knows about them.

[Viscount Camrose (Con)]

That is absolutely fair enough: I will of course write. Sadly, we are not joined today by ministerial colleagues from the Home Office, who have some other Bill going on.

[Lord Clement-Jones (LD)]

We always enjoy having input from the Home Office.

[Viscount Camrose (Con)]

I have no doubt that its contribution to the letter will be equally enjoyable. However, for all the reasons I set out above, I am not able to accept these amendments and respectfully encourage the noble Baroness and noble Lords not to press them.

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[Lord Bassam of Brighton (Lab)]

My Lords, this group has three amendments within it and, as the noble Lord, Lord Vaux, said, it is a disparate group. The first two seem wholly benign and entirely laudable, in that they seek to ensure that concerns about the environmental impacts related to data connected to business are shared and provided. The noble Baroness, Lady Bennett, said hers was a small and modest amendment: I agree entirely with that, but it is valuable nevertheless.

If I had to choose which amendment I prefer, it would be the second, in the name of my noble friend Lady Young, simply because it is more comprehensive and seems to be of practical value in pursuing policy objectives related to climate change mitigation. I cannot see why the disclosure of an impact analysis of current and future announcements, including legislation, changes in targets and large contracts, on UK climate change mitigation targets would be a problem. I thought my noble friend was very persuasive and her arguments about impact assessment were sound. The example of offshore petroleum legislation effectively not having an environmental impact assessment when its impacts are pretty clear was a very good one indeed. I am one of those who believes that environmental good practice should be written all the way through, a bit like a stick of Brighton rock, and I think that about legislation. It is important that we take on board that climate change is the most pressing issue that we face for the future.

The third amendment, in the name of my noble friend Lady Jones, is of a rather different nature, but is no less important, as it relates to the UK’s data adequacy and the EU’s decisions on it. We are grateful to the noble Lords, Lord Vaux of Harrowden and Lord Clement-Jones, for their support. Put simply, it would oblige the Secretary of State to complete an assessment, within six months of the Bill’s passing,

“of the likely impact of the Act on the EU’s data adequacy decisions relating to the UK”.

It would oblige the Secretary of State to lay a report on the assessment’s findings, and the report must cover data risk assessments and the impact on SMEs. It must also include an estimate of the legislation’s financial impact. The noble Lord, Lord Vaux, usefully underlined the importance of this, with its critical 2025 date. The amendment also probes

“whether the Government anticipate the provisions of the Bill conflicting with the requirements that need to be made by the UK to maintain a data adequacy decision by the EU”.

There is widespread and considerable concern about data adequacy and whether the UK legislative framework diverges too far from the standards that apply under the EU GDPR. The risk that the UK runs in attempting to reduce compliance costs for the free flow of personal data is that safeguards are removed to the point where businesses and trade become excessively concerned. In summary, many sectors including manufacturing, retail, health, information technology and particularly financial services are concerned that the free flow of data between us and the EU, with minimal disruption, will simply not be able to continue.

As the noble Lord, Lord Vaux, underlined, it is important that we in the UK have a relationship of trust with the European Commission on this, although ultimately data adequacy could be tested in the Court of Justice of the European Union. Data subjects in the EU can rely on the general principle of the protection of personal data to invalidate EU secondary and domestic law conflicting with that principle. Data subjects can also rely on the Charter of Fundamental Rights to bring challenges. Both these routes were closed off when the UK left the EU and the provisions were not saved in UK law, so it can be argued that data protection rights are already at a lower standard than across the European Union.

It is worth acknowledging that adequacy does not necessarily require equivalence. We can have different, and potentially lower, standards than the EU but, as long as those protections are deemed to meet whatever criteria the Commission chooses to apply, it is all to the good.

However, while divergence is possible, the concern that we and others have is that the Bill continues chipping away at standards in too many different ways. This chipping away is also taking place in statutory instruments, changes to guidance and so on. If His Majesty’s Government are satisfied that the overall picture remains that UK regulation is adequate, that is welcome, but it would be useful to know what mechanism DSIT and the Government generally intend using to measure where the tipping point might be achieved and how close these reforms take us to it.

The Committee will need considerable reassurance on the question of data adequacy, not least because of its impact on businesses and financial services in the longer term. At various times, the Minister has made the argument that a Brexit benefit is contained within this legislation. If he is ultimately confident of that case, what would be the impact on UK businesses if that assessment is wrong in relation to data adequacy decisions taken within the EU?

We are going to need more than warm words and a recitation that “We think it’s right and that we’re in the right place on data adequacy”. We are going to need some convincing. Whatever the Minister says today, we will have to return to this issue on Report. It is that important for businesses in this country and for the protection of data subjects.

[Lord Clement-Jones (LD)]

My Lords, these amendments have been spoken to so well that I do not need to spend a huge amount of time repeating those great arguments. Both Amendment 195A, put forward by the noble Baroness, Lady Bennett, and Amendment 218 have considerable merit. I do not think that they conflict; they are complementary, in many respects.

Awareness raising is important to this, especially in relation to Amendment 218. For instance, if regulators are going to have a growth duty, which looks like it is going to happen, why not have countervailing duties relating to climate change, as the noble Baroness, Lady Young, put forward so cogently as part of Amendment 218? Amendment 195A also has considerable merit in raising awareness in the private sector, in traders and so on. Both have considerable merit.

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[Lord Clement-Jones (LD)]

Before the Minister stands up, let me just say that I absolutely agree with what the noble Lord, Lord Bassam, said. Have the Government taken any independent advice? It is easy to get wrapped up in your own bubble. The Government seem incredibly blithe about this Bill. You only have to have gone through our days in this Committee to see the fundamental changes that are being made to data protection law, yet the Government, in this bubble, seem to think that everything is fine despite the warnings coming from Brussels. Are they taking expert advice from outside? Do they have any groups of academics, for instance, who know about this kind of thing? It is pretty worrying. The great benefit of this kind of amendment, put forward by the noble Baroness, Lady Jones, is that nothing would happen until we were sure that we were going to be data adequate. That seems a fantastic safeguard to me. If the Government are just flying blind on this, we are all in trouble, are we not?

[Lord Vaux of Harrowden (CB)]

My Lords, can I point out, on the interests of the EU, that it does not go just one way? There is a question around investment as well. For example, any large bank that is currently running a data-processing facility in this country that covers the whole of Europe may decide, if we lose data adequacy, to move it to Europe. Anyone considering setting up such a thing would probably go for Europe rather than here. There is therefore an investment draw for the EU here.

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[Viscount Camrose (Con)]

Yes. I would be happy to provide a list of the people we have spoken to about adequacy; it may be a long one. That concludes the remarks I wanted to make, I think.

[Lord Clement-Jones (LD)]

Perhaps the Minister could just tweak that a bit by listing not just the people who have made positive noises but those who have their doubts.

[Viscount Camrose (Con)]

Yes.

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[Viscount Stansgate (Lab)]

I do not have the benefit of seeing a Hansard update to know after which word I was interrupted and we had to leave to vote, so I will just repeat, I hope not unduly, the main point I was making at the time of the Division. This was that the central conclusion of the CRISP report is that the Government’s policy

“generates significant gaps in the formal oversight of biometrics and surveillance practices in addition to erasing many positive developments aimed at raising standards and constructive engagement with technology developers, surveillance users and the public”.

The reason I am very glad to support the noble Lord, Lord Holmes, in these amendments is that the complexities of the current regulatory landscape and the protections offered by the BSCC in an era of increasingly intensive advanced and intrusive surveillance mean that the abolition of the BSCC leaves these oversight gaps while creating additional regulatory complexity. I will be interested to see how the Minister defends the fact that this abolition is supposed to improve the situation.

I do not want to detain the Committee for very long, but I shall just read this one passage from the report into the record, because it is relevant to the debate we are having. We should not remove

“a mechanism for assuring Parliament and the public of appropriate surveillance use, affecting public trust and legitimacy at a critical moment concerning public trust in institutions, particularly law enforcement. As drafted, the Bill reduces public visibility and accountability of related police activities. The lack of independent oversight becomes amplified by other sections of the Bill that reduce the independence of the current Information Commissioner role”.

In short, I think it would be a mistake to abolish the biometrics commissioner, and on that basis, I support these amendments.

[Lord Clement-Jones (LD)]

My Lords, it has been a pleasure to listen to noble Lords’ speeches in this debate. We are all very much on the same page and have very much the same considerations in mind. Both the protection of biometric data itself and also the means by which we regulate its use and have oversight over how it is used have been mentioned by everyone. We may have slightly different paths to making sure we have that protection and oversight, but we all have the same intentions.

The noble Lord, Lord Holmes, pointed to the considerable attractions of, in a sense, starting afresh, but I have chosen a rather different path. I think it was the noble Lord, Lord Vaux, who mentioned Fraser Sampson, the former Biometrics and Surveillance Camera Commissioner. I must admit that I have very high regard for the work he did, and also for the work of such people as Professor Peter Fussey of Essex University. Of course, a number of noble Lords have mentioned the work of CRISP in all this, which kept us very well briefed on the consequence of these clauses.

No one has yet spoken to the stand part notices on Clauses 130 to 132; I will come on to those on Clauses 147 to 149 shortly. The Bill would drastically change the way UK law enforcement agencies can handle biometric personal data. Clauses 130 to 132 would allow for data received from overseas law enforcement agencies to be stored in a pseudonymised, traceable format indefinitely.

For instance, Clause 130 would allow UK law enforcement agencies to hold biometric data received from overseas law enforcement agencies in a pseudonymised format. In cases where the authority ceases to hold the material pseudonymously and the individual has no previous convictions or only one exempt conviction, the data may be retained in a non-pseudonymous format for up to three years. Therefore, the general rule is indefinite retention with continuous pseudonymisation, except for a specific circumstance where non-pseudonymised retention is permitted for a fixed period. I forgive noble Lords if they have to read Hansard to make total sense of that.

This is a major change in the way personal data can be handled. Permitting storage of pseudonymised or non-pseudonymised data will facilitate a vast biometric database that can be traced back to individuals. Although this does not apply to data linked to offences committed in the UK, it sets a concerning precedent for reshaping how law enforcement agencies hold data in a traceable and identifiable way. It seems that there is nothing to stop a law enforcement agency pseudonymising data just to reattach the identifying information, which they would be permitted to hold for three years.

The clauses do not explicitly define the steps that must be taken to achieve pseudonymisation. This leaves a broad scope for interpretation and variation in practice. The only requirement is that the data be pseudonymised

“as soon as reasonably practicable”,

which is a totally subjective threshold. The collective impact of these clauses, which were a late addition to the Bill on Report in the Commons, is deeply concerning. We believe that these powers should be withdrawn to prevent a dangerous precedent being set for police retention of vast amounts of traceable biometric data.

The stand part notices on Clauses 147 to 149 have been spoken to extremely cogently by the noble Lord, Lord Vaux, the noble Viscount, Lord Stansgate, and the noble Baroness, Lady Harding. I will not repeat a great deal of what they said but what the noble Baroness, Lady Harding, said about the Human Fertilisation and Embryology Authority really struck a chord with me. When we had our Select Committee on Artificial Intelligence, we looked at models for regulation and how to gain public trust for new technologies and concepts. The report that Baroness Warnock did into fertilisation and embryology was an absolute classic and an example of how to gain public trust. As the noble Baroness, Lady Harding, said, it has stood the test of time. As far as I am concerned, gaining that kind of trust is the goal for all of us.

What we are doing here risks precisely the reverse by abolishing the office of the Biometrics and Surveillance Camera Commissioner. This was set up under the Protection of Freedoms Act 2012, which required a surveillance camera commissioner to be appointed and a surveillance camera code of practice to be published. Other functions of the Biometrics and Surveillance Camera Commissioner are in essence both judicial and non-judicial. They include developing and encouraging compliance with the surveillance camera code of practice; raising standards for surveillance camera developers, suppliers and users; public engagement; building legitimacy; reporting annually to Parliament via the Home Secretary; convening expertise to support these functions; and reviewing all national security determinations and other powers by which the police can retain biometric data. The Bill proposes to erase all but one—I stress that—of these activities.

The noble Lord, Lord Vaux, quoted CRISP. I will not repeat the quotes he gave but its report, which the noble Viscount, Lord Stansgate, also cited, warns that

“plans to abolish and not replace existing safeguards in this crucial area will leave the UK without proper oversight just when advances in artificial intelligence (AI) and other technologies mean they are needed more than ever”.

The Bill’s reduction of surveillance-related considerations to data protection compares unfavourably to regulatory approaches in other jurisdictions. Many have started from data protection and extended it to cover the wider rights-based implications of surveillance. Here, the Bill proposes a move in precisely the opposite direction. I am afraid this is yet another example of the Bill going entirely in the wrong direction.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have contributed to what has been an excellent debate on this issue. We have all been united in raising our concerns about whether the offices of the biometrics commissioner and the surveillance camera commissioner should be abolished. We all feel the need for more independent oversight, not less, as is being proposed here.

As we know, the original plan was for the work of the biometrics commissioner to be transferred to the Information Commissioner, but when he raised concerns that this would result in the work receiving less attention, it was decided to transfer it to the Investigatory Powers Commissioner instead. Meanwhile, the office of the surveillance camera commissioner is abolished on the basis that these responsibilities are already covered elsewhere. However, like other noble Lords, we remain concerned that the transfer of this increasingly important work from both commissioners will mean that it does not retain the same level of expertise and resources as it enjoys under the current regime.

These changes have caused some alarm among civic society groups such as the Ada Lovelace Institute and the Centre for Research into Information Surveillance and Privacy, to which noble Lords have referred. They argue that we are experiencing a huge expansion in the reach of surveillance and biometric technology. The data being captured, whether faces, fingerprints, walking style, voice or the shape of the human body, are uniquely personal and part of our individual identity. The data being captured can enhance public safety but can also raise critical ethical concerns around privacy, free expression, bias and discrimination. As the noble Lord, Lord Vaux, said, we need a careful balance of those issues between protection and privacy.

The noble Baroness, Lady Harding, quite rightly said that there is increasing public mistrust in the use of these techniques, and that is why there is an urgent need to take people on the journey. The example the noble Baroness gave was vivid. We need a robust legal framework to underpin the use of these techniques, whether it is by the police, the wider public sector or private institutions. As it stands, the changes in the Bill do not achieve that reassurance, and we have a lot of lessons to learn.

Rather than strengthening the current powers to respond to the huge growth and reach of surveillance techniques, the Bill essentially waters down the protections. Transferring the powers from the BSCC to the new Information Commissioner brings the issue down to data protection when the issues of intrusion and the misuse of biometrics and surveillance are much wider than that. Meanwhile, the impact of Al will herald a growth of new techniques such as facial emotional appraisal and video manipulation, leading to such things as deep fakes. All these techniques threaten to undermine our sense of self and our control of our own personal privacy.

The amendment in the name of the noble Lord, Lord Holmes, takes up the suggestion, also made by the Ada Lovelace Institute, to establish a biometrics office within the ICO, overseen by three experienced commissioners. The functions would provide general oversight of biometric techniques, keep a register of biometric users and set up a process for considering complaints. Importantly, it would require all entities processing biometric data to register with the ICO prior to any use.

We believe that these amendments are a really helpful contribution to the discussion. They would place the oversight of biometric techniques in a more effective setting where the full impacts of these techniques can be properly monitored, measured and reported on. We would need more details of the types of work to be undertaken by these commissioners, and the cost implications but, in principle, we support these amendments because they seem to be an answer to our concerns. We thank the noble Lord for tabling them and very much hope the Minister will give the proposals serious consideration.

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[Viscount Camrose (Con)]

I apologise if I have misunderstood. It sounds like it would be a unit within the ICO responsible for that matter. Let me take that away if I have misunderstood—I understood it to be a separate organisation altogether.

The Government deem Amendment 238 unnecessary, as using biometric data to categorise or make inferences about people, whether using algorithms or otherwise, is already subject to the general data protection principles and the high data protection standards of the UK’s data protection framework as personal data. In line with ICO guidance, where the processing of biometric data is intended to make an inference linked to one of the special categories of data—for example, race or ethnic origin—or the biometric data is processed for the intention of treating someone differently on the basis of inferred information linked to one of the special categories of data, organisations should treat this as special category data. These protections ensure that this data, which is not used for identification purposes, is sufficiently protected.

Similarly, Amendment 286 intends to widen the scope of the Forensic Information Databases Service—FINDS—strategy board beyond oversight of biometrics databases for the purpose of identification to include “classification” purposes as well. The FINDS strategy board currently provides oversight of the national DNA database and the national fingerprint database. The Bill puts oversight of the fingerprint database on the same statutory footing as that of the DNA database and provides the flexibility to add oversight of new biometric databases, where appropriate, to provide more consistent oversight in future. The delegated power could be used in the medium term to expand the scope of the board to include a national custody image database, but no decisions have yet been taken. Of course, this will be kept under review, and other biometric databases could be added to the board’s remit in future should these be created and should this be appropriate. For the reasons I have set out, I hope that the noble Baroness, Lady Jones of Whitchurch, will therefore agree not to move Amendments 238 and 286.

Responses to the data reform public consultation in 2021 supported the simplification of the complex oversight framework for police use of biometrics and surveillance cameras. Clauses 147 and 148 of the Bill reflect that by abolishing the Biometrics and Surveillance Camera Commissioner’s roles while transferring the commissioner’s casework functions to the Investigatory Powers Commissioner’s Office.

Noble Lords referred to the CRISP report, which was commissioned by Fraser Sampson—the previous commissioner—and directly contradicts the outcome of the public consultation on data reform in 2021, including on the simplification of the oversight of biometrics and surveillance cameras. The Government took account of all the responses, including from the former commissioner, in developing the policies set out in the DPDI Bill.

There will not be a gap in the oversight of surveillance as it will remain within the statutory regulatory remit of other organisations, such as the Information Commissioner’s Office, the Equality and Human Rights Commission, the Forensic Science Regulator and the Forensic Information Databases Service strategy board.

[Lord Clement-Jones (LD)]

One of the crucial aspects has been the reporting of the Biometrics and Surveillance Camera Commissioner. Where is there going to be and who is going to have a comprehensive report relating to the use of surveillance cameras and the biometric data contained within them? Why have the Government decided that they are going to separate out the oversight of biometrics from, in essence, the surveillance aspects? Are not the two irretrievably brought together by things such as live facial recognition?

[Viscount Camrose (Con)]

Yes. There are indeed a number of different elements of surveillance camera oversight; those are reflected in the range of different bodies doing that it. As to the mechanics of the production of the report, I am afraid that I do not know the answer.

[Lord Clement-Jones (LD)]

Does the Minister accept that the police are one of the key agencies that will be using surveillance cameras? He now seems to be saying, “No, it’s fine. We don’t have one single oversight body; we had four at the last count”. He probably has more to say on this subject but is that not highly confusing for the police when they have so many different bodies that they need to look at in terms of oversight? Is it any wonder that people think the Bill is watering down the oversight of surveillance camera use?

[Viscount Camrose (Con)]

No. I was saying that there was extensive consultation, including with the police, and that that has resulted in these new arrangements. As to the actual mechanics of the production of an overall report, I am afraid that I do not know but I will find out and advise noble Lords.

His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services also inspects, monitors and reports on the efficiency and effectiveness of the police, including their use of surveillance cameras. All of these bodies have statutory powers to take the necessary action when required. The ICO will continue to regulate all organisations’ use of these technologies, including being able to take action against those not complying with data protection law, and a wide range of other bodies will continue to operate in this space.

On the first point made by the noble Lord, Lord Vaux, where any of the privacy concerns he raises concern information that relates to an identified or identifiable living individual, I can assure him that this information is covered by the UK’s data protection regime. This also includes another issue raised by the noble Lord—where the ANPR captures a number-plate that can be linked to an identifiable living individual—as this would be the processing of personal data and thus governed by the UK’s data protection regime and regulated by the ICO.

For the reasons I have set out, I maintain that these clauses should stand part of the Bill. I therefore hope that the noble Lord, Lord Clement-Jones, will withdraw his stand part notices on Clauses 147 and 148.

Clause 149 does not affect the office of the Biometrics and Surveillance Camera Commissioner, which the noble Lord seeks to maintain through his amendment. The clause’s purpose is to update the name of the national DNA database board and update its scope to include the national fingerprint database within its remit. It will allow the board to produce codes of practice and introduce a new delegated power to add or remove biometric databases from its remit in future via the affirmative procedure. I therefore maintain that this clause should stand part of the Bill and hope that the noble Lord will withdraw his stand part notice.

Clauses 147 and 148 will improve consistency in the guidance and oversight of biometrics and surveillance cameras by simplifying the framework. This follows public consultation, makes the most of the available expertise, improves organisational resilience, and ends confusing and inefficient duplication. The Government feel that a review, as proposed, so quickly after the Bill is enacted is unnecessary. It is for these reasons that I cannot accept Amendment 292 in the name of the noble Lord, Lord Clement-Jones.

I turn now to the amendments tabled by the noble Lord, Lord Clement-Jones, which seek to remove Clauses 130 to 132. These clauses make changes to the Counter-Terrorism Act 2008, which provides the retention regime for biometric data held on national security grounds. The changes have been made only following a formal request from Counter Terrorism Policing to the Home Office. The exploitation of biometric material, including from international partners, is a valuable tool in maintaining the UK’s national security, particularly for ensuring that there is effective tripwire coverage at the UK border. For example, where a foreign national applies for a visa to enter the UK, or enters the UK via a small boat, their biometrics can be checked against Counter Terrorism Policing’s holdings and appropriate action to mitigate risk can be taken, if needed.