Data Protection (Charges and Information) (Amendment) Regulations 2019

Lord McNally Excerpts

Monday 18th February 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde)]

My Lords, I declare an interest which every Member of this House who speaks will have to declare so perhaps I can save them the bother. I will benefit from the fact that I will not have to pay the £40 charge if the regulations are approved. Secondly, my wife is a parish councillor and will also benefit.

The original regulations were debated and approved in this House on 20 March 2018. Noble Lords may recall that those regulations introduced a new charging structure to fund the Information Commissioner’s Office. The authority for doing so derived at the time from the Digital Economy Act 2017, now superseded by the powers set out in Section 137 of the Data Protection Act 2018. As we promised during those debates, we are now looking to implement a new exemption from the annual data protection charge for elected representatives, candidates for election and Members of the House of Lords for processing that they undertake in the course of fulfilling their democratic duties.

The new data protection framework is about protecting personal data—that is, information that can identify individuals. Some of us in this House will be data controllers—we may hold personal data—and are responsible for how that information is processed. There may be a number of reasons why we hold that personal data—for example, we may have been entrusted with it by members of the public for particular aspects of parliamentary work—but, as data controllers, we have various obligations under the Data Protection Act, including how we look after that information.

While we have previously debated the importance of having an adequately funded regulator, there will be some situations where it would be unreasonable for some data controllers to pay the charge or where the charge would give rise to unintended negative consequences. For that reason, Schedule 1 to the funding regulations details a number of exemptions to the payment of the charge. For example, any data controller who processes personal data only for staff administration purposes, or purely for advertising, marketing and public relations reasons, is not required to pay.

During the parliamentary debate of the original funding regulations on 20 March last year, the Government undertook to review these exemptions. A public consultation took place last summer and has been available online since June 2018. The consultation sought views on whether each of the exemptions was still appropriate; a proposed new exemption for elected representatives, prospective candidates for election and Members of the House of Lords; and whether any other new exemptions should be introduced. Respondents were broadly supportive of the current exemptions regime. However, there was also support for one new exemption for elected representatives, candidates, including prospective candidates for election, and Members of the House of Lords.

The Government’s view is that activity deriving from elected representatives’ public offices and functions should not be liable to a charge. Charges of this nature potentially represent a perceived or actual barrier to democratic engagement. A number of respondents supported this view. In light of this support, we have decided to take this amendment forward for implementation, so I now come to the details of the instrument.

The amendment introduces an exemption for: Members of the House of Lords who are entitled to receive a Writ of Summons to attend this House specifically for the purposes of related functions; elected representatives, as defined in paragraph 23(3) of Schedule 1 to the Data Protection Act 2018 in connection with the discharge of their respective functions; and relevant processing undertaken by candidates, prospective and nominated, seeking to become elected representatives. These exemptions cover those who are acting on instructions or on behalf of such Members and elected or prospective representatives. Importantly, that is not to say that all processing of data conducted by those listed in the amendment, including all Members of this House, is automatically exempt from paying a charge. The instrument makes it clear that the exemption relates solely to processing carried out by these parties in connection with their democratic functions.

In the case of prospective candidates, the exemption would apply only to processing in connection with those activities related to election or re-election in a post. It is important to extend the exemption to anyone seeking to become an elected representative, not just to nominated candidates. This is because formal nomination, the stage at which candidates are defined in electoral legislation, occurs only in the immediate lead-up to an election. Activity to support re-election is likely to predate this stage. Excluding prospective candidates from this exemption would place them at a financial disadvantage compared with their incumbent counterparts. We have restricted the application of the exemption to data processing associated with the functions of our respective roles. This provides a safeguard against misuse, for example by individuals falsely claiming to be prospective candidates.

I want to be clear that the exemption relates only to the payment of the annual data protection charge. It is not an exemption from data controllers’ important data protection responsibilities. Anyone who does not adhere to those responsibilities and principles will face enforcement action by the ICO.

I hope noble Lords will agree that this amendment is important to encourage wider participation in the democratic engagement process. The removal of a requirement to pay the annual data protection charge to the ICO will ensure that all prospective candidates will start their electoral campaigns on a footing equal to that of elected representatives already in post. It also reflects the high regard the Government place upon those undertaking public functions. I beg to move.

[Lord McNally (LD)]

My Lords, we welcome this statutory instrument and the exemptions provided for. Like the Minister and, I think, everybody in this House, we do not want a tax on democracy, but people should be assured that the legal responsibilities remain the same and can be quite onerous. The Minister’s last remark was that we must not allow people to use the candidate or even the MP or Peer as cover for activities that would be outside the narrow exemption of this House.

This reminds me of debates we had some 20 or even 30 years ago—in the early 1990s—when we brought in legislation about the financing of political parties. I remember that those of us who had experience of working for political parties were very conscious that they are all made up of volunteers, often amateurs. There was a danger in that legislation—and I think there still is—of putting on to enthusiastic volunteer amateurs, who make our democracy work, very onerous financial responsibilities in terms of election spending and, in this case, very onerous data protection responsibilities. There might be a case for giving political parties some funding for advice, training and support to make sure that these responsibilities are understood and work well.

What the Minister has had to say is very welcome, and we are all involved in this, but it appears that the initial advice was a little confusing and caused concern. Once these regulations are approved, as I am sure they will be, I wonder whether the House authorities can issue some clear and definitive advice that will be of benefit to Members of this House. We look forward to this SI being passed.