Data (Use and Access) Bill [HL]

Lord Vallance of Balham Excerpts

Committee stage
Monday 16th December 2024 Grand Committee

[Viscount Camrose (Con)]

My Lords, I address the amendments tabled by the noble Lord, Lord Clement-Jones. These proposals aim to transfer jurisdiction from courts to tribunals; to establish a new right of appeal against decisions made by the Information Commissioner; and to grant the Lord Chancellor authority to implement tribunal procedure rules. I understand and recognise the noble Lord’s intent here, of course, but I have reservations about these amendments and urge caution in accepting them.

The suggestion to transfer jurisdiction from courts to tribunals raises substantial concerns. Courts have a long-standing authority and expertise in adjudicating complex legal matters, including data protection cases. By removing these disputes from the purview of the courts, the risk is that we undermine the depth and breadth of legal oversight required in such critical areas. Tribunals, while valuable for specialised and expedited decisions, may not provide the same level of rigorous legal analysis.

Cases such as those cited by the noble Lord, Lord Clement-Jones—Killock and another v the Information Commissioner and Delo v the Information Commissioner—demonstrate to me the intricate interplay between data protection, administrative discretion and broader legal principles. It is questionable whether tribunals, operating under less formal procedures, can consistently handle such complexities without diminishing the quality of justice. Further, I am not sure that the claim that this transfer will streamline the system and reduce burdens on the courts is fully persuasive. Shifting cases to tribunals does not eliminate complexity; it merely reallocates it, potentially at the expense of the detailed scrutiny that these cases demand.

I turn to the right of appeal against the commissioner’s decisions. Although the introduction of a right of appeal against these decisions may seem like a safeguard, it risks creating unnecessary layers of litigation. The ICO already operates within a robust framework of accountability, including judicial review for cases of legal error or improper exercise of discretion. Adding a formal right of appeal risks encouraging vexatious challenges, overwhelming the tribunal system and diverting resources from addressing genuine grievances.

I think we in my party understand the importance of regulatory accountability. However, creating additional mechanisms should not come at the expense of efficiency and proportionality. The existing legal remedies are designed to strike an appropriate balance, and further appeals risk creating a chilling effect on the ICO’s ability to act decisively in protecting data rights.

On tribunal procedure rules and centralised authority, the proposed amendment granting the Lord Chancellor authority to set tribunal procedure rules bypasses the Tribunal Procedure Committee, an independent body designed to ensure that procedural changes are developed with judicial oversight. This move raises concerns about the concentration of power and the erosion of established checks and balances. I am concerned that this is a case of expediency overriding the principles of good governance. While I acknowledge that consultation with the judiciary is included in the amendment, it is not a sufficient substitute for the independent deliberative processes currently in place. The amendment risks undermining the independence of our legal institutions and therefore I have concerns about it.

These amendments overall, while presented as technical fixes, and certainly I recognise the problem and the intent, would have far-reaching consequences for our data protection framework. The vision of my party for governance is one that prioritises stability, legal certainty and the preservation of integrity. We must avoid reforms that, whatever their intent, introduce confusion or inefficiency or undermine public trust in our system. Data protection is, needless to say, a cornerstone of our modern economy and individual rights. As such, any changes to its governance must be approached with the utmost care.

[The Minister of State, Department for Science, Innovation and Technology (Lord Vallance of Balham) (Lab)]

I thank the noble Lord, Lord Clement-Jones, for his Amendments 108, 146 to 153 and 157, and I am grateful for the comments by the noble Lord, Lord Holmes, and the noble Viscount, Lord Camrose.

The effect of this group of amendments would be to make the First-tier Tribunal and the Upper-tier Tribunal responsible for all data protection cases. They would transfer ongoing as well as future cases out of the court system to the relevant tribunals and, as has been alluded to, may cause more confusion in doing so.

As the noble Lord is aware, there is currently a blend of jurisdiction under the data protection legislation for both tribunals and courts according to the nature of the proceedings in question. This is because certain types of cases are appropriate to fall under tribunal jurisdiction while others are more appropriate for court settings. For example, claims by individuals against organisations for breaches of legal requirements can result in awards of compensation for the individuals and financial and reputational damage for the organisations. It is appropriate that such cases are handled by a court in conformance with their strict procedural and evidential rules. Indeed, under the Killock and Delo examples, it was noted that there could be additional confusion in that ability to go between those two possibilities if you went solely to one of the tribunals.

On the transfer of responsibility for making tribunal procedural rules from the Tribunal Procedure Committee to the Lord Chancellor, we think that would be inappropriate. The committee is comprised of legal experts appointed or nominated by senior members of the judiciary or the Lord Chancellor. This committee is best placed to make rules to ensure that tribunals are accessible and fair and that cases are dealt with quickly and efficiently. It keeps the rules under constant review to ensure that they are fit for purpose in line with new appeal rights and the most recent legislative changes.

Amendment 151 would also introduce a statutory appeals procedure for tribunals to determine the merits of decisions made by the Information Commissioner. Data subjects and controllers alike can already challenge the merits of the Information Commissioner’s decisions by way of judicial review in a way that would preserve the discretion and independence of the Information Commissioner’s decision-making, so no statutory procedure is needed. The Government therefore believe that the current jurisdictional framework is well-balanced and equitable, and that it provides effective and practical routes of redress for data subjects and controllers as well as appropriate safeguards to ensure compliance by organisations. For these reasons, I hope the noble Lord will not press his amendments.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response to my amendments and welcome him to the Dispatch Box and a whole world of pain on the Data (Use and Access) Bill, as he has, no doubt, noted already after just two hours’ worth of this Committee.

I found his response disappointing, and I think both he and the noble Viscount, Lord Camrose, have misunderstood the nature of this situation. This is not a blend, which is all beautifully logical depending on the nature of the case. This is an absolute mishmash where the ordinary litigant is faced with great confusion, not knowing quite often whether to go to the court or a tribunal, where the judges themselves have criticised the confusion and where there appears to be no appetite, for some reason, in government for a review of the jurisdictions.

I felt that the noble Viscount was probably reading from his previous ministerial brief. Perhaps he looked back at Hansard for what he said on the DPDI Bill. It certainly sounded like that. The idea that the courts are peerless in their legal interpretation and the poor old tribunals really just do not know what they are doing is wrong. They are expert tribunals, you can appear before them in person and there are no fees. It is far easier to access a tribunal than a court and certainly, as far as appeals are concerned, the idea that the ordinary punter is going to take judicial review proceedings, which seems to be the implication of staying with the current system on appeals if the merits of the ICO’s decisions are to examined, seems quite breathtaking. I know from legal practice that JR is not cheap. Appearing before a tribunal and using that as an appeal mechanism would seem far preferable.

I will keep on pressing this because it seems to me that at the very least the Government need to examine the situation to have a look at what the real objections are to the jurisdictional confusion and the impact on data subjects who wish to challenge decisions. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Vallance of Balham]

133: Clause 89, page 112, line 24, at end insert—
“(10) In section 199(2)(a) of the Investigatory Powers Act 2016 (bulk personal datasets: meaning of “personal data”), after “section 82(1) of that Act” insert “by an intelligence service”.”Member’s explanatory statement
Clause 88 of the Bill amends section 82 in Part 4 of the Data Protection Act 2018 (intelligence services processing). This amendment makes a consequential change to a definition in the Investigatory Powers Act 2016 which cross-refers to section 82.

[Lord Vallance of Balham (Lab)]

These four technical government amendments do not, we believe, have a material policy effect but will improve the clarity and operation of the Bill text.

Amendment 133 amends Section 199 of the Investigatory Powers Act 2016, which provides a definition of “personal data” for the purposes of bulk personal datasets. This definition cross-refers to Section 82(1) of the Data Protection Act 2018, which is amended by Clauses 88 and 89 of the Bill, providing for joint processing by the intelligence services and competent authorities. This amendment will retain the effect of that cross-reference to ensure that processing referred to in Section 199 of the IPA remains that done by an intelligence service.

Amendment 136 concerns Clause 92 and ICO codes of practice. Clause 92 establishes a new procedure for panels to consider ICO codes of practice before they are finalised. It includes a regulation-making power for the Secretary of State to disapply or modify that procedure for particular codes or amendments to them. Amendment 136 will enable the power to be used to disapply or modify the panel’s procedure for specific amendments or types of amendments to a code, rather than for all amendments to it.

Finally, Amendments 213 and 214 will allow for changes made to certain immigration legislation and the Online Safety Act 2023 by Clauses 55, 122 and 123 to be extended via existing powers in those Acts, exercisable by Orders in Council, to Guernsey and the Isle of Man, should they seek this.

I beg to move.

[Viscount Camrose (Con)]

My Lords, I will keep my comments brief as these are all technical amendments to the Bill. I understand that Amendments 133 and 136 are necessary for the functioning of the law and therefore have no objection. As for Amendment 213, extending immigration legislation amended by Clause 55 of this Bill to the Bailiwick of Guernsey or the Isle of Man, this is a sensible measure. The same can be said for Amendment 214, which extends the provision of the Online Safety Act 2023, amended by this Bill, to the Bailiwick of Guernsey or the Isle of Man.

[Lord Vallance of Balham (Lab)]

I thank the noble Viscount.

Amendment 133 agreed.