Data Protection and Digital Information Bill

Lord McNally Excerpts

2nd reading
Tuesday 19th December 2023 Lords Chamber

[Lord McNally (LD)]

My Lords, I very much welcome the maiden speech of the noble Lord, Lord de Clifford. As one who entered this House in his early 50s, I can recommend that coming in here, just as the mid-life crisis starts to bite, and being, as I was then, Young Tom again, is a great boost to the morale.

I associate myself with the advice given by the right reverent prelate the Bishop of Southwell and Nottingham. At the end of the recent passage of the Online Safety Bill, there was general thanks to the noble Lord, Lord Parkinson of Whitley Bay, the Minister guiding the Bill safely through the Lords, for his willingness to listen to argument and to amend where necessary. I fear that the noble Viscount will hit some choppy water in this House unless he adopts a similar attitude, and he should certainly take the noble Baroness, Lady Kidron, very seriously concerning children’s data rights.

The Government’s declared intention of reducing burdens on organisations while maintaining high data protection standards has met with scepticism and outright criticism from a wide range of industry bodies, civil society organisations and individuals with expertise in this area. As has been said, the Official Opposition in the other place asked that the Bill be recommitted to a Public Bill Committee for further scrutiny, but this was refused. As the noble Baroness, Lady Young, indicated, this has put further onus on this House to make sure there is time to listen to and examine the wide range of criticisms and amendments seeking to improve the Bill.

In 2010, I became Minister of State at the Ministry of Justice. Among my responsibilities was the ICO and the early negotiations on what became the GDPR. One of my first roles was to go to a facility south of the river to look at our skills in this area. After looking at a number of things, I asked the government official who was showing me the facility whether there were any human rights or privacy issues involved. He said, “Oh no, sir. Tesco knows more about you than we do”. There is a certain profligacy by the individual about their data, along with real concern about their privacy. It is riding those two horses at once that is going to be the challenge of this Bill. I oppose the Bill with an eye to ensuring, like the noble Baroness, Lady Young, that the ICO is well served by this legislation and continues in setting standards and protecting individuals.

Prior to Brexit, I was on one of your Lordship’s sub-committees, where we constantly pressed the Ministers about data adequacy with the EU on our departure. The answers then were very much along the lines of, “Well, it’ll be alright on the night”. I hope that the Minister will again reassure us in his wind up that the data protection legislation in the Bill clarifies the law without deviating from the principles set out in GDPR. The UK’s data adequacy status, granted by the European Commission, is important, and we do not want to see that jeopardised in pursuit of some mythical benefits from Brexit.

I am sorry that my noble friend Lord Allan will not be joining us for the rest of this; I would have valued his contribution. But I will keep an eye on it, as a number of other colleagues have indicated.

More widely, one of the problems with this Bill is that its scale and how it has been dealt with by the Government in its preparation, false starts and in the other place mean that we are going to legislate for myriad issues, each of which are of importance to the sector, the individual concerned or society and will require our full due care and attention. For example, new powers in Clause 87 and 88, which allow the Secretary of State to offer an exemption for direct marketing provisions used for the purpose of democratic engagement, may invite abuse. I put that mildly. This morning’s FT contains an article raising precisely these fears and this issue must be examined in detail during the passage of the Bill.

One issue that I was going to deal with in detail was referred to by the noble Lord, Lord Kamall. The Minister might, even at this early stage in the Bill’s progress, provide clarification about the use of the open electoral register for direct marketing purposes. This issue has also been raised with me by the Data & Marketing Association. As the noble Lord, Lord Kamall, explained, there are big concerns in the market about what companies can do with personal data from the open electoral register and this needs to be resolved.

Unfortunately, considerable market uncertainty has been caused by the enforcement notice by the ICO, which has already been referred to. In the light of all this legal and market uncertainty, and given that this Bill is before the House, the best and most timely option is to address the issue in the Bill and I urge the Government to consider what can be done on this. Perhaps the noble Lord, Lord Kamall, and other noble Lords could discuss a joint amendment.

That is just one example of the issues in the Bill that will require detailed examination and close attention. Much of it will be practical and will involve building a framework that brings within it the framework of law and regulation to keep pace with the new technologies that are now part of the digital and data revolution. In this, the impact of AI will cast a long shadow over our deliberations, as the noble Lord, Lord Knight, the noble Baronesses, Lady Kidron and Lady Young, and others have made clear.

The right reverend Prelate the Bishop of St Albans referred to the benefits of the wide-ranging briefings that we received prior to today’s debate. Let me assure the authors that none of them will go to waste as we move into Committee. As well as dealing with the mundane and the practical, we have to take seriously the advice contained in one briefing, which read:

“At a time of advancing AI-driven surveillance, and when public concerns over measures such as facial recognition technology are heightened, removing oversight and accountability could have serious implications for public trust in policing”.


This warning could apply to almost any sector, service or industry covered by the Bill. Two quotes leap out to me from the excellent Lords Library briefing on the Bill, which has been referred to. One comes from the Information Commissioner, who calls for a regulator that is “trusted, fair and independent”, and the other comes from techUK, which calls for a Bill that will

“help spur competition and innovation in the market, whilst empowering consumers and delivering better outcomes”.

Riding those two horses at once is now the task before us.