Data Protection and Digital Information Bill

Lord Vaux of Harrowden Excerpts

Committee stage
Monday 22nd April 2024 Grand Committee

[Baroness Lister of Burtersett (Lab)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Kamall. Although we probably come from very different positions on the role of the state, I agree with virtually everything that he said. I apologise for popping up at this late stage of proceedings on the Bill but, as someone with a long-standing concern about social security matters, I was shocked by the inclusion of these powers and want to add my support to those opposing them and, should this opposition prove unsuccessful, to the very sensible set of recommendations made by my noble friend Lady Sherlock.

The Child Poverty Action Group, of which I am honorary president, and Z2K warn that the stakes are high for claimants, as getting caught up in an error and fraud investigation can lead to the wrongful suspension and/or termination of their benefits. They give some horrendous examples of where this has happened. I will read just one: “A claimant with severe mental health problems whose main carer had recently passed away had his UC suspended in October 2023 by the UC case review when he was unable to obtain and upload bank statements on request. The suspension continued for four months and he was unable to pay for food, electricity or heating. When he was referred for benefits advice and his welfare rights adviser contacted the UC case review team, she was told that claims under review are randomly chosen and they are not targeted in any way”. This is someone with mental health problems left without any money; this could become the norm under this proposal.

The briefing from the CPAG and Z2K also cites the perspective of Changing Realities—families with experience in claiming low-income benefits. One warns that

“it will put folk off claiming altogether”.

I always remember, when I worked at the CPAG, getting a phone call from a woman who started by saying, “Please don’t think I’m a scrounger”. I am afraid that is still very much how people often feel about claiming benefits. Treating all social security recipients as potentially fraudulent can but increase the stigma associated with claiming. Amendment 219 in the name of my noble friend Lord Sikka is highly pertinent here. The point has already been made, but how would we feel if we knew that our bank accounts could well be scrutinised for potential tax evasion? I realise that I should declare an interest: as a pensioner, ultimately my bank account will be trawled, but that is down the line. Underlying this is a double standard that has operated year after year in social security and tax fraud.

The CPAG and Z2K also warn that some of the most marginalised people in our society could get caught up in these speculative searches. Given this, can the Minister explain why—I believe this is still the case—there is no equalities impact assessment for these provisions? Disabled people’s organisations are very worried about the likely implications for their members, such as in the case of disabled people who set up bank accounts to pay for their social care. They warn of the potential mental health impact as existing mental distress and trauma could be exacerbated by the knowledge that they are under surveillance—a point made by the noble Baroness, Lady Kidron.

The Government state that they

“are confident that the power is proportionate and would operate in a way that it only brings in data on DWP claimants, and specifically those claimants where there is a reasonable suspicion that something is wrong within their claim”.

Given the evidence of people already being wrongfully targeted for fraud and the strongly expressed view of organisations such as Justice, as well as the Information Commissioner, that the measures are disproportionate and therefore arguably unlawful, can the Minister say on what evidence that confidence is based? Given this confidence, I hope that the Government will accept without demur Amendments 220 to 222 in the next group from my noble friend Lady Sherlock.

Picking up what my noble friend Lord Sikka said, what is the breakdown between suspected fraud and error? It is not helpful that they are always talked about as though they are one and the same thing. The Government have argued that one reason the power is necessary is to provide the tools to enable the DWP to

“minimise the impact of genuine mistakes that can lead to debt”.

Try telling that to recipients of carer’s allowance who have been charged with fraud as a result of genuine mistakes relating to the earnings threshold. The fact that the DWP already has the information and power it needs to act to ensure that debts do not accrue in this situation, yet in countless cases has not used it until the point where very large sums may be owing, does not instil confidence, as mentioned by the noble Baroness, Lady Kidron.

On Amendment 303, which relates to Amendment 230, one of the criticisms of these provisions has been the lack of consultation. Has the Social Security Advisory Committee been consulted? If so, what was its response; if not, why not?

In conclusion, I support the opposition to Clause 128 and Schedule 11 standing part of the Bill, but so long as they do stand part, I hope very much that the Minister will take seriously the amendments in the name of my noble friend in this group and the next two.

[Lord Vaux of Harrowden (CB)]

My Lords, I was also too late to put my name to these stand part notices for Clause 128 and Schedule 11. There must have been a stampede towards the Public Bill Office, meaning that some of us failed to make it.

At Second Reading, I described Clause 128 as “draconian”. Having dug into the subject further, I think that was an understatement. Data protection is a rather dry subject and, as the debates throughout this Committee stage have shown, it does not generate a lot of excitement. We data protection enthusiasts are a fairly select group, but it is nice to see a few new faces here today.

The Bill runs to 289 pages and is called the Data Protection and Digital Information Bill. Nothing in that name suggests that around 20 pages of it relate, in effect, to giving the Government unlimited access to the bank accounts of large swathes of the population without suspicion of any wrongdoing—20 pages is larger than many Bills. I wonder what the reaction in this Committee and the other place might have been if those 20 pages had been introduced as a stand-alone Bill—called, perhaps, the government right to access bank account information Bill. I suspect that we might have had a few more people in this Room. It feels as if this draconian clause is being hidden in the depths of a Bill that the Government perhaps felt would not generate much interest. It is particularly concerning that it was dropped into the Bill at the last minute in the other place and has not, therefore, received scrutiny there either. This sort of draconian power deserves much more scrutiny than on day 6 in Committee in the Moses Room.

I hope that my desire to stamp out fraud is well known—indeed, I think I can probably describe myself as rather boring on the subject—so I have a lot of sympathy for the Government’s underlying intention here. However, a right to require banks to carry out suspicionless surveillance over the bank accounts of anybody who receives pretty much any kind of benefit, directly or indirectly, is a huge intrusion into privacy and feels completely disproportionate. Others have covered the detail eloquently, so I just want to ask a number of questions of the Minister—I see that we have had a viscount swap at this stage.

I have been trying to work out exactly which accounts could be covered by this requirement. Schedule 11 is not the easiest document to read. It seems clear that if, for example, I am a landlord receiving rent directly from the benefit system on behalf of a tenant, the account of mine that receives the money would be covered, as would any other account in my name. However, would it also catch, for example, a joint account with my wife? I think it would. Would it catch a business account or an account for a charity where I am a signatory, a director or a trustee? I am not sure from reading it, I am afraid. Can the noble Minister clarify that?

Once received, the information provided by the banks may be used

“for the purposes of, or for any purposes connected with, the exercise of departmental functions”.

That seems extremely broad, and I cannot find anything at all setting out for how long the information can be retained. Again, can the Minister clarify that?

As well as being a data protection enthusiast, I am also an impact assessment nerd. I have been trying to work out from the impact assessment that accompanies the Bill—without much success—how much money the Government anticipate recovering as a result of these proposed rights, as well as the cost to the banks, the department and any other parties in carrying out these orders. The impact assessment is rather impenetrable—I cannot find anything in it that covers these costs—so I would be grateful if the Minister could say what they are and on what assumptions those numbers are based.

The noble Lord, Lord Kamall, mentioned unintended consequences. I echo his points: this is really important. Putting additional onerous obligations on banks may make them decide that it is too difficult to provide accounts to those in receipt of benefits. Access to bank accounts for vulnerable people is already an issue, and any incentive to make that worse is a real problem. As the noble Lord pointed out, we have a good example of that with PEPs. All of us have, I suspect, experienced finding it at least difficult to open an account. Some of us have had accounts refused or even closed simply because we have made it difficult for the banks to act for us. The same risk applies to landlords. Why would a landlord want to receive money from housing benefits directly when it will mean that all of his bank accounts and linked accounts will be looked at? He will simply say no. We are therefore reducing the pool of potential accommodation available to housing benefit claimants.

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[Baroness Buscombe (Con)]

I am sorry; I have spent a lot of time listening to others, and a lot of it has been slightly interesting to listen to, I have to say.

The measure will not enable the DWP to access any accounts, and the DWP will not be able to use this measure to check what claimants are spending. The DWP can request information only where there is a link between the DWP, the third party and the benefit claimant or recipient of a payment, and will receive only minimum information on those cases where potential fraud and error are signalled. Once received, the DWP will look at each case individually through its business-as-usual processes and by using existing powers. That work will carefully be undertaken by a human and no automated decisions will be made. That is a really interesting and important point in terms of this measure. I now turn to my noble friend.

[Lord Vaux of Harrowden (CB)]

I am grateful to the noble Baroness, but could she point out where those restrictions actually are in the Bill? It says that an account information notice can include

“the names of the holders … other specified information relating to the holders … and … such further information in connection with those accounts as may be specified”.

It basically allows the DWP to ask for any information relating to those accounts. I do not see the restrictions that she has just spoken about.

[Baroness Buscombe (Con)]

It is important that my noble friend answers that question. The point is that if we find—I am sorry, I still speak as if I am involved with it, which I am not, but I promise noble Lords that I have spent so much time in this area. If the DWP finds that there is a link that needs pursuing then that obviously has to be opened up to some degree to find what is going on. Remember, the most important thing about this is that the right people get the right benefits. That is what the Government are trying to achieve.

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To address another misconception, it is not a surveillance or investigations power, as was alluded to by the noble Lord, Lord Vaux. This measure does not meet the legal definition of surveillance, as the data gathering will be neither covert nor the purpose of an investigation. This is solely a data-gathering power that will help us to check whether individuals appear to meet the eligibility rules for the benefit that they are receiving. This should not be confused with powers that the DWP already holds under the Investigatory Powers Act 2016 to investigate individual cases where there is a suspicion of criminality.

[Lord Vaux of Harrowden (CB)]

I apologise for interrupting, but can the Minister show us in the Bill where those restrictions on the information that can be requested reside? As I read it, as I mentioned to the noble Baroness, Lady Buscombe, paragraph 2(1) of new Schedule 3B, as inserted by Schedule 11 of the Bill, is pretty wide when it refers to

“names of holders … other specified information relating to the holders … and … such further information in connection with those accounts as may be specified”.

So it appears that the DWP can ask for whatever it wants, rather than what the Minister just described.

[Viscount Younger of Leckie (Con)]

That is a fair challenge and I will certainly be coming on to that. I have in my speech some remarks and a much more limited reassurance for the noble Lord.

It is only when there is a signal of potential fraud or error that the DWP may undertake a further review, using our business-as-usual processes and existing powers—an important point. DWP will not share any personal information with third parties under this power, and only very limited data on accounts that indicate a potential risk of fraud or error will be shared with DWP in order to identify a claimant on our system. As I said earlier, I will say more about the limited aspects of this later in my remarks.

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[Viscount Younger of Leckie (Con)]

Yes, I am aware of that. I think the noble Lord was alluding to the point about proportionality. I listened carefully and took note of that, but do not entirely agree with it. I hope that I can provide further reassurances, if not now then in the coming days and weeks. The point is that there is no other reasonable way to independently verify claimants’ eligibility for the payment that they are receiving.

I turn to the amendments raised, starting with the stand part notice from the noble Baronesses, Lady Kidron and Lady Chakrabarti, the noble Lord, Lord Anderson of Ipswich, who is not in his place, and the noble Lord, Lord Clement-Jones. They and my noble friend Lord Kamall, who is not in his place, interestingly, all made their case for removing the clause, of which I am well aware. However, for the reasons that I just set out, this clause should stand part of the Bill.

In raising her questions, the noble Baroness, Lady Kidron, made some comparisons with HMRC. There are appropriate safeguards in place for this data-gathering power, which will be included in the code of practice. The safeguards for this measure will be equivalent to those in place for the similar HMRC power which Parliament approved in the Finance Act 2011.

[Lord Vaux of Harrowden (CB)]

When might we see the code of practice? It would be extremely helpful to see it before Report, as that might short-cut some of these discussions.

[Viscount Younger of Leckie (Con)]

I will need to get back to the noble Lord on that, but perhaps can reassure him that it is already being worked on. You can imagine that, because of the sensitivity of these powers, we are working very carefully on this and making sure that it will be fit for purpose.

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The Minister, the noble Viscount, Lord Younger, quoted a survey from 2023 on the public’s views of these powers. I point out that, as the noble Baroness, Lady Sherlock, said on the last group, we have recently heard a great deal about how recipients of carer’s allowance have been absolutely hammered by its cliff-edge nature and the way that the DWP has been chasing them. I suggest to the Minister that, after all those revelations, public views might have changed quite a lot.

[Lord Vaux of Harrowden (CB)]

My Lords, I was not intending to speak on this group, but another question occurs to me. We have been assuming throughout this that we are talking about requests of information to banks, but the Bill actually says that:

“The Secretary of State may give an account information notice to a person of a prescribed description”.


Could the Minister explain what that is?

[Lord Clement-Jones (LD)]

My Lords, I would of course much prefer Clause 128 not to stand part, but we were just privileged by a master class from the noble Baroness, Lady Sherlock. She talked about these being probing amendments, but I do not think that I have seen a schedule so expertly sliced and diced before. If those are probing, they are pretty lethal. I agree with so many of those elements. If we are to have provisions, those are the kinds of additions that we would want and the questions that we would want to ask about them. I very much hope that the Minister has lots of answers, especially for the noble Baroness, Lady Sherlock, but also for the other noble lords who have spoken.

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[Viscount Younger of Leckie (Con)]

I am not sure I agree with that. I hope I can reassure the noble Baroness, as I tried to on the previous group. Using our test and learn process, which is already under way working closely with the banks, bringing them along with us and them bringing us along with them—there is a good relationship there—we are working through these important matters.

The point made by the noble Baroness, Lady Kidron, is important, as is that of the noble Baroness, Lady Jones. Again, it is important to give those reassurances. They will be forthcoming, and that is all part of our test and learn process, which I hope provides some reassurance.

[Lord Vaux of Harrowden (CB)]

I want to be absolutely clear on this point, because I am still not totally sure I am—I raised this the first time around on the last group. If I, as a landlord, have been paid rent as housing benefit directly, my accounts are caught. If I am a trustee of a charity and a cosignatory on a bank account, is the Minister saying that that charity’s account will be caught or not? I want to be absolutely crystal clear on that.

[Viscount Younger of Leckie (Con)]

This is part of the filtering discussions that are already taking place at the moment.

[Lord Vaux of Harrowden (CB)]

Under the terms of the Bill, would this allow that to be caught?

[Viscount Younger of Leckie (Con)]

Yes it would. Landlords are in scope. We will filter this through in terms of the business as usual. If we receive any information—

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[Baroness Kidron (CB)]

How many accounts of “signalling” already exist in the current backlog in the business-as-usual version? What kind of investment will it take when you supercharge these powers and get many more tens of thousands of signals?

[Lord Vaux of Harrowden (CB)]

I will add to the Minister’s grief. He has talked a number of times about the limited information that will be provided to the DWP, but that is not what the Bill says. The Bill refers to

“such further information in connection with those accounts as may be specified”.

There is no limitation in the Bill to the information that the DWP can request from the bank—assuming that it is a bank, after my previous question. I am struggling to understand how we get from that to “limited”.

[Viscount Younger of Leckie (Con)]

Right. A number of questions have been asked. I am not sure that I can give too much more clarity—only that I will go back to what I said on the first group in terms of the limited nature of what we are trying to do. I was very clear about its limited nature, I think.

This leads on to the numbers that noble Lords are asking me about. Of course, I cannot give that figure, as we do not honestly know it. Until we move forward on bringing the measure in, we will not know it. What is certain is that we need this power to be able to gain the limited data that we need. When we receive the data, it may be the case that we need to follow up. I am sure that we will not need to follow up in the vast majority of cases but we must have this power.

To the noble Lord, Lord Vaux, I say this: this measure is for UK accounts only. I hope that that is also helpful to the noble Baroness, Lady Bennett.

[Lord Vaux of Harrowden (CB)]

This is the problem. We have been talking about limited information, a limited nature and the limited things that we will look at, but that is not what the Bill says. We need to think seriously about how we should limit the rights in the Bill to match the requirements of the DWP. At the moment, there seems to be a huge gap.

[Viscount Younger of Leckie (Con)]

That point is very much noted. I will certainly take it back. Clearly, we need to provide greater reassurance on the limits and scope, as well as on what we are trying to do. I regret that I am not able to give those answers in full to the Committee now but I hope that, today, I have already taken us further forward than we were before we started. That is quite an important point to make.

I shall touch on the benefits that are in scope of this measure, a point that was raised by the noble Baroness, Lady Sherlock. I think the noble Baroness wishes to restrict the power to working-age benefits, but pension-age benefits are not immune to fraud and error—I wanted to address that—and it is our duty to ensure that these benefits are paid correctly and in line with the benefit eligibility rules that Parliament has previously agreed. Every payment that the DWP makes has eligibility criteria to it. Parliament has considered these criteria in the passage of the relevant social security legislation, and the Government have a responsibility to check that payments are being made in line with those rules so that taxpayers’ money is spent responsibly.