Data Protection Bill [HL]

Lord McNally Excerpts

Monday 6th November 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, as my noble friend Lord Clement-Jones indicated, I shall speak to Amendments 41 and 44, which were eloquently introduced by the noble Lord, Lord Griffiths. I had no idea that it was a maiden speech from the Front Bench, and it is to the discredit of the Labour Party that it has taken him so long to climb to the top of the greasy pole. Having got there, I hope that he enjoys the view.

As the noble Lord indicated, these amendments are inspired mainly by Thomson Reuters and others in the City. I attended a seminar in the City some weeks ago in which the corporation, the City of London Police and some leading companies talked about the challenges that data was bringing them. At the core of this is a concern that the Bill is loosely and poorly worded in preventing private companies doing work with data which will help them to keep best practice in line with the objectives for corporate governance and efforts to fight crime, terrorism, slavery, bribery and corruption.

I hope the Minister can give some comfort that the Bill will give cover to companies, financial institutions and others to carry out this kind of data activity and allow screening by private companies for the purposes of checking against non-UK laws on terrorist financing or money laundering. It should be amended to allow compliance with widely recognised guidelines such as those promulgated by the Financial Action Task Force. In the light of the Minister’s response and in consultation with those who have asked us to raise this matter, we would see whether we wanted to take it further. At the source of these amendments is a concern on the part of companies which I think genuinely want to help.

[Lord Lester of Herne Hill (LD)]

My Lords, I want to raise an issue which I would be grateful if it were thought about, although I would not dream of asking the Minister to give an informed reply today. I am puzzled especially by Amendment 37, spoken to by the noble Lord, Lord Griffiths, because I spent a good deal of my time developing the Equality Act 2010 and we were very concerned when doing so about issues of personal privacy and enforceability.

Obviously, one size does not fit all when it comes to equal opportunity and treatment. It is fairly easy to operate a policy measuring ethnicity, for example, without any problem about privacy; it is pretty easy to do so in respect of gender, although gender does not at the moment figure in the list for some reason, but it becomes terribly difficult when one is dealing with sexuality, religion or philosophical belief, which are for some reason in the list at the moment. I would be grateful if the Minister could reflect with people from the Government Equalities Office on whether this is an example of overlegislation, which it would be much better to prune down.

I am all in favour of affirmative action to promote equality between the sexes or people of different ethnicity, but when it comes to religion, philosophical belief and the other matters that are either there at the moment or would be there under Amendment 37, I get very worried. For example, I once represented the Church of Scientology—successfully—in establishing that scientology is a religion. I would not like these provisions to be the source of conflict and division between one kind of religion and another, or one kind of no religion and humanists, and so on. I think it is an example of overlegislation and underlegislation, and needs to be sorted.

--- Later in debate ---

I suppose that it depends on how the parties come together after Committee to agree on the best form of action in response to these Henry VIII powers—but I suspect that, on Report, there will be a deal of contention on the matter.

[Lord McNally]

I can imagine how it was when the legislative programme was discussed in the Cabinet Office, or even at No. 10: how on earth do we get all this through? I am sure that the Civil Service advice was—or at least one adviser said—“Well, you could try by Henry VIII powers and lots of secondary legislation. Looking at the present rules, that is the only way that we think you could get it through in that timetable”. And so the process started.

I know that the big problem for Ministers in this House is that there will be great impatience in No. 10 and down the Corridor at any delays or defeats—but, as has been said a number of times, they are going about it the wrong way. We are heading for a constitutional car crash unless there is intervention at the very highest level to look at this problem. It is a twin problem: how do you give flexibility to make legislation fool-proof in a rapidly changing technological situation, which is one of the central problems for the Bill; and how do you deal with Brexit legislation in such a tight timetable?

I know what cannot happen. It would be the irony of ironies if an exercise that was supposed to return sovereignty to this Parliament ended up with this Parliament accepting a whole range of precedents that diminished its sovereignty. Therefore, although it is unfair on each Minister, this debate will continue to take place, and I hope that when we get to Divisions we will put a halt to this solution, so that some really hard thinking will be done about how to achieve the end of the Government getting their business through without sacrificing parliamentary sovereignty.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I welcome this opportunity to set out the Government’s position on various delegated powers contained in the Bill, which have been the subject of recommendations by the Delegated Powers and Regulatory Reform Committee. The Government are very grateful to the committee for its usual thoroughness in examining the delegated powers in the Bill, but I should begin my remarks by saying that the committee’s report, which ran to some 20 pages, was published only on 24 October, so we are still considering its conclusions and recommendations. The range of views expressed in tonight’s debate will be further input into that process.

The current Data Protection Act has stood firm for almost 20 years. This one will be in danger of lasting barely two if we start striking out the delegated powers contained within it. As the noble Lord, Lord Stevenson, and the noble Baroness, Lady Jones, said, such is the pace of change in this area that we need to keep up with what is going on. Furthermore, new forms of data processing not yet dreamed of will have been designed, developed and deployed even before the Bill reaches Royal Assent. It is essential that the law can keep up.

It is also worth reminding ourselves that the Government have taken the opportunity to include directly in the relevant schedules numerous provisions which had previously been included only in secondary legislation. The noble Lord, Lord Stevenson, has been extremely busy, and has taken the opportunity to table more than a dozen amendments to Schedule 1 alone. We will of course turn to those shortly.

That said, the Government recognise that there is tension between the need to provide for appropriate future-proofing of legislation, such as provided for in Clauses 9, 15, 33, 84 and 111, and the need to ensure proper parliamentary scrutiny of the resultant delegated powers. It follows that we are open to constructive suggestions as to how provisions in the Bill can be improved and, obviously, that includes its regulation-making powers.

I have listened with care and interest to the case put forward by my noble friend Lord Arbuthnot, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, for the application of the super-affirmative procedure. I am also grateful to the noble Lord, Lord Whitty, for reminding us that data subjects, not just data controllers, have an interest in the proper application of these powers.

I am sure that noble Lords will agree that the amendments before us should be considered in the context of the broader recommendations of the Delegated Powers and Regulatory Reform Committee report. As I said earlier, the process of considering these issues is still ongoing, but I am more than confident that it will conclude in time for the Bill’s next stage.

Before I conclude, I think that the noble Lord, Lord Stevenson, asked what was meant by “legislative measure”. Clause 15(1)(b) uses the term “legislative measure” to reflect the wording used in Article 23 of the GDPR. Recital 41 makes clear that a legislative measure would include an Act or statutory instrument. I hope that that answers the question.

I therefore humbly invite the noble Lord to withdraw his amendment on the understanding that we will return to this important issue on Report.