Information Commissioner (Remuneration)

Margot James Excerpts

Wednesday 14th March 2018 General Committees

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

I beg to move,

That the Committee has considered the motion, That, from 1 April 2018—

(1) the Information Commissioner shall be paid a salary of £160,000 per annum and pension benefits in accordance with the standard award for the civil service pension scheme;

(2) this salary shall be increased by 1% each year on 1 April;

(3) the Information Commissioner in post on 1 April 2018 shall also be paid, as part of their salary, a non-consolidated, non-pensionable annual allowance of £20,000 for the duration of the single-term appointment; and

(4) all previous resolutions relating to the salary and pension of the Information Commissioner shall cease to have effect.

It is a great pleasure to serve under your chairmanship for the first time, Sir Henry. The Information Commissioner, as data protection registrar, was first introduced in 1984. The current structure of the role arises from three key pieces of legislation: the Data Protection Act 1984, the Data Protection Act 1998 and the Freedom of Information Act 2000. It also arises from duties in relation to the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Since its introduction, the role has demanded great independence and integrity, not least in the important function of holding the Government to account, combined with an ability to make difficult and finely balanced judgments. That is particularly the case now, when data is at the forefront of the political agenda domestically—with the Data Protection Bill in Parliament—and internationally. As the Prime Minister highlighted in her recent Mansion House speech, the UK’s exceptionally high standard of data protection is one of the foundations that will underpin our post-Brexit trading relationship with the European Union.

It is crucial, therefore, that we can attract and retain world-class individuals, such as the current commissioner, who bring to the role the skills and experience that enable them to navigate the delicate balance of protecting the rights of the individual while enabling growth and innovation at an important time for our economy. They must also be able to represent the UK effectively in the international arena.

The Government have carefully considered the commissioner’s salary in the light of changes to the role and its responsibilities since it was last reviewed in 2008. The proposed increase is justified for the following reasons. First, the changing data protection landscape has vastly increased the Information Commissioner’s responsibilities and the challenges she faces. The digital revolution has turned data into the new oil and has enabled a constant stream of technological innovations that support growth to bring benefits to society.

[Kevin Brennan (Cardiff West) (Lab)]

The Minister has rightly pointed out that it is a bit of an oddity that the salary has not been uprated annually and has been frozen for some years. Does she have the figure for what the salary would be now, had it been uprated in line with other public sector pay?

[Margot James]

I do not have that information for the hon. Gentleman. If it is available or can be worked out, I will write to him and provide it.

Data protection laws and the role played by the Information Commissioner are critical to retaining the right balance between innovation and privacy. The changing commercial and technological landscape brings new challenges to the Information Commissioner and her office on an almost daily basis. For that reason, we are modernising our data protection laws and providing new and stronger powers for the commissioner. Those changes are necessary, but they expand the remit of the commissioner’s role significantly, with new responsibilities, including an age-appropriate design code, and new requirements, such as supervising data protection impact assessments and breach notifications. It is important to ensure that the remuneration for the role reflects the increased importance, challenges and responsibilities.

Secondly, the salary has fallen below the market average for comparable roles. As data protection becomes an increasingly important concern for organisations, recruitment for well-qualified staff has become increasingly competitive. We must be able to compete for the best talent for such a critical role in our economy. The regulator must be able to keep up with the organisations it regulates, some of which—Google and Facebook, for example—have seemingly limitless reserves.

Third, it is of vital importance to Britain’s place in the world that the Information Commissioner’s Office benefits from the best possible leadership for the foreseeable future. As the Prime Minister made clear in her speech, we see the UK and the Information Commissioner continuing to play a role in data protection issues with the European Union. This will be possible only if the commissioner’s role is appropriately rewarded in order to continue to attract individuals who will have an impact on the world stage.

The commissioner’s role in relation to freedom of information remains of key importance. The number of FOI requests received by all monitored bodies increased from just under 35,000 in 2008 to more than 45,000 in 2016. Again, the burden of casework for which the commissioner is responsible has also increased significantly, from 2,646 cases received in 2008, to 5,433 received in 2017.

I would also like to mention the commissioner’s increasing role in the regulation of the privacy and electronic communications regulations. In particular, the ICO continues to tackle nuisance telephone calls and texts, which, as hon. Members will know, can cause a great deal of distress. The commissioner took on responsibility for the telephone preference service last year. In the same year, the commissioner issued 23 companies with over £1.9 million of fines for nuisance marketing.

The incumbent commissioner, Elizabeth Denham, brings a high level of expertise to the role. Ms Denham previously held the position of Information and Privacy Commissioner for British Columbia and Assistant Privacy Commissioner of Canada. To date she has steered the ICO through a number of important issues, such as several landmark enforcement cases, representing the UK in collaborative work with EU colleagues on the implementation of general data protection regulation and a period of rapid expansion.

It is in recognition of her unique mix of skills and the current heightened complexity of the role that the motion also includes a £20,000 per annum allowance for the current incumbent. In previous debates on the matter, hon. Members have highlighted the undesirability of fixing for many years a salary for a senior public official and then having to compensate for this with a relatively large increase. To that end, we have also included an annual 1% increase to help the commissioner’s salary keep pace with the salaries of comparable roles.

In summary, we believe that the increase in the commissioner’s salary appropriately reflects the importance of the role and their achievements to date in growing the ICO and supporting data controllers across the country to prepare for the new data protection framework. In the context of the expanding remit of the ICO, Ms Denham’s record of outstanding leadership is vital to maintaining the UK’s reputation as a global leader in data protection. I would like to take this opportunity to thank her for the excellent work she does.

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[Margot James]

I thank both hon. Gentlemen for their questions and scrutiny, which I will do my best to answer.

I can now answer the question posed by the hon. Member for Cardiff West during my opening remarks. He asked whether the commissioner’s salary, had it been increased since 2008 in line with annual permissible public sector increases, would now amount to just over £154,000. I can confirm that he is right in his calculations. The salary plus the £20,000 uplift comes to £180,000. As he said, that exceeds that of the Prime Minister.

The hon. Member for Cardiff West posited most of the reasons for the judgment that we have come to. He mentioned the greater workload, which will be infinitely greater after the implementation of the GDPR into British law this summer. There is no doubt that the workload has increased and will increase further. He also talked about the very limited supply of the sort of skills the current commissioner has. It is a global recruitment market, and we consider ourselves very fortunate to have Elizabeth Denham in the role. There is a very limited number of people who have her global reputation, her skill set and her experience.

The hon. Gentleman also talks about salary levels for comparative roles. We looked at comparative public sector roles and found that the average for such a position, looking at all the regulators, is £184,000. Some are paid less and some are paid more, but that is the average.

[Kevin Brennan]

I am extremely grateful to the Minister. I am just trying to follow her logic. In practice, then, the baseline salary she is proposing represents a real increase of £6,000, if we take into account the uprating, because she says it would have been uprated to £154,000 by now had it simply been uprated for inflation. The only real increase that she is proposing to the salary is that £6,000. I am struggling to understand, given everything she has said, why the Government have decided to package it up in this way with the additional £20,000. If, as she has explained, the role is more important and needs a world-class individual, why does that not form part of the overall salary? What is the logic for that?

[Margot James]

The logic for that was touched on in remarks made by both the hon. Gentleman and the hon. Member for Edinburgh East. It is packaged up in that way because the allowance is only for the current incumbent; it is attached to the individual, rather than the role, as expressed in the regulations. That is the reason for the decision.

The app introduced by my right hon. Friend the Member for West Suffolk (Matt Hancock) was mentioned. I can assure the hon. Member for Cardiff West that the app complies 100% with data protection law—I am sure he will share my pleasure at that confirmation. I think I have dealt with all the questions I have been asked. I am pleased to be able to confirm this new salary and package for the Information Commissioner. As I said earlier, I consider that we are very fortunate to have Elizabeth Denham in this role.

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[Margot James]

On that last point, perhaps I stand corrected—time will tell. It is indeed the responsibility of the Information Commissioner to make such emphatic remarks about whether something qualifies as 100% compliant.

I have highlighted three justifications for the entirely reasonable increase in the Information Commissioner’s salary, and I am delighted to have the Committee’s agreement that that should be put into law.

Question put and agreed to.

Data Protection Bill [ Lords ] (First sitting)

Margot James Excerpts

Tuesday 13th March 2018 Public Bill Committees

[The Chair]

Copies of written evidence will be made available in the Committee Room shortly.

We now begin line-by-line consideration of the Bill. Mr Streeter—my fellow Chair—and I have selected the amendments for consideration today; the selection list is available in the Committee Room. Amendments that have been grouped for debate are generally on the same or a similar issue.

For the benefit of new Members on the Committee, I should say that decisions on amendments are made not necessarily in the order in which they are debated, as shown on the selection list, but rather in the order in which they appear on the amendment paper. Some of the provisions that we debate today will therefore not be voted on until a later day. I will use my discretion to determine whether to have separate stand part debates on clauses to which a number of amendments have been tabled. I am sure it will all become clear in due course.

Clause 1

Overview

Question proposed, That the clause stand part of the Bill.

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

It is a pleasure to serve under your chairmanship, Mr Hanson. Clause 1 is a signposting overview of the Bill. It is not intended to have any effect other than to help us to navigate such a large Bill; I trust that hon. Members agree that it achieves its purpose.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hanson. Looking around the Committee Room, I see that you have an extremely unruly bunch of hon. Members to police in the next couple of weeks, but I know that you will do so with skill and care.

The Opposition do not wish to object to clause 1, which is basically the foundation stone of the Bill. We wish only to underline the Bill’s peculiarity in that it seeks to incorporate a piece of European legislation into British law without actually reproducing the legislation in question. Throughout the debate, we will hear references to the general data protection regulation—GDPR—a text that appears nowhere in the Bill. I hope that over the coming weeks the Committee will therefore focus on a series of principles for data protection. The Opposition will move amendments to enshrine those principles more firmly into our law. Beyond that, I have no objections to this foundation stone of the Bill.

Question put and agreed to.

Clause 1 accordingly agreed to.

Clause 2

Protection of personal data

Question proposed, That the clause stand part of the Bill.

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[Darren Jones]

Of course the hon. Gentleman is right that the article includes principles of data protection, but we are trying to make the Government’s job in seeking the decision on adequacy with the European Union as easy as possible. This seems an easy way to facilitate that. Clearly, there is a dereliction of fundamental rights through not copying and pasting this across into UK law. Although there are data protection principles under the European convention on human rights, article 8 states:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

That does not sound very modern or digital to me. Although rights flow from that, the charter rights on communications—specifically electronic communications— seem much more fit for the future. I welcome the Secretary of State’s comments that the Bill seeks to make our country fit for the future. Let us rely not on a world of manual correspondence, but on one of electronic communications.

The new clause is not ideological; it does not seek to rebalance power between business controllers and individual citizens. It merely seeks to replicate what is in law today: a basic and fundamental human right that seems to me and to others to be perfectly sensible. Only yesterday, I was in Brussels with the European Scrutiny Committee, meeting Mr Barnier. He talked positively about wanting to get agreement on data adequacy, given its importance—not least because 11% of global data flows come to the UK, 70% of which are with the EU. It would be a disaster for this country if we did not have adequacy, so let us make our job easier to effect that shared aim across the Floor of the Committee and with our counterparts in Europe of seeking a decision on adequacy. Let us put this new clause into the Bill, so that we maintain the position that our data subjects have today: a fundamental right, which is in the European charter of fundamental rights, and in the future will be in this Bill.

[Margot James]

I thank speakers for their thoughtful contributions. I share many of their concerns, as do the Government, particularly with regard to adequacy, which I will talk about in more detail. I think we are all agreed that after Britain leaves the European Union we must be able to negotiate an adequacy agreement for the free flow of data between us and the EU. That is absolutely essential.

First, the GDPR implements the right to data protection and more. It is limited in scope, but the Bill also implements data protection rights on four areas beyond GDPR. It applies GDPR standards to personal data beyond EU competence, such as personal data processed for consular purposes or national security. Secondly, the Bill applies the standards to non-computerised and unstructured records held by public authorities that the GDPR ignores. Thirdly, the Bill regulates data processed for law enforcement purposes. Fourthly, it covers data processed by the intelligence services.

There is no doubt in our minds that we have fully implemented the right to data protection in our law and gone further. Clause 2 is designed to provide additional reassurance. Not only will that be clear in the substance of the legislation, but it is on the face of the Bill. The Bill exists to protect individuals with regard to the processing of all personal data. I think this is common ground. We share Opposition Members’ concern for the protection of personal data. It must be processed lawfully, individuals have rights, and the Information Commissioner will enforce them.

New clause 12 creates a new and free-standing right, which is the source of our concern. Subsection (1) is not framed in the context of the Bill. It is a wider right, not constrained by the context of EU law. However, the main problem is that it is not necessary. It is not that we disagree with the thinking behind it, but it is not necessary and might have unforeseen consequences, which I will come to.

Article 6 of the treaty on European Union makes it clear that due regard must be had to the explanations of the charter when interpreting and applying the European charter of fundamental rights. The explanations to article 8 of the charter confirm that the right to data protection is based on the right to respect for private life in article 8 of the ECHR. The European Court of Human Rights has confirmed that article 8 of the ECHR encompasses personal data protection. The Government have absolutely no plans to withdraw from the European Court of Human Rights.

The new right in new clause 12 would create confusion if it had to be interpreted by a court. For rights set out in the Human Rights Act, there is a framework within which to operate. The Human Rights Act sets out the effect of a finding incompatible with rights. However, new clause 12 says nothing about the consequences of potential incompatibility with this new right to the protection of personal data.

[Liam Byrne]

The Minister is rehearsing the argument that was made in the other place before the requirements that we put into our amendments. She can see as well as me that the new clause was rewritten so that, under subsection (2), it is to be interpreted only

“in accordance with the provisions, exceptions and derogations of this Act;”.

So the idea that we are creating some kind of new and unfettered right is nonsense. We had this debate in the other place. We made refinements and they have been presented in the new clause.

If there is no dispute about the importance of adequacy and of putting it beyond risk, what is the problem with putting the question beyond doubt and dispute and incorporating the same foundation that is enjoyed in the European Union into British law?

[Margot James]

New clause 12 takes article 8 of the charter outside that context and creates a free-standing right. That is the potential for confusion. New clause 12 says nothing about the consequences of incompatibility with the new right to the protection of personal data. That would create, legal, regulatory and economic uncertainty. We are endeavouring not just to ensure adequacy after we leave the European Union, but to go beyond the mere requirement for adequacy, as the Prime Minister set out in her speech almost two weeks ago.

Further, how would the courts approach other legislation in the light of this new right? One has to ask how they would approach other rights. Could this new right be balanced against other rights?

[Liam Byrne]

It is not a new right; it is a roll-over of an existing right. I have not heard of a case prosecuted in British courts where there was a problem with balancing the right that we currently enjoy with anything else. We simply seek to roll this right over into the future.

[Margot James]

That brings me on to my other point: not only does this roll-over, as the right hon. Gentleman puts it, threaten to create confusion and undermine other rights, but it is unnecessary. The charter of fundamental rights merely catalogues rights that already exist in EU law; it is not the source of those rights. The rights, including to data protection, which is, importantly, what we are here to debate, arise from treaties, EU legislation and case law. They do not arise from the European charter of fundamental rights, so we argue that the new clause is completely unnecessary.

[Darren Jones]

The right exists in its own right in the European charter of fundamental rights. That is why European Courts refer to it when making decisions. If the Courts did not think that it was an established right in itself, they would refer to the other sources of legislation that the Minister mentioned. It therefore must, as a matter of logic, be a legal right that is fundamental; otherwise, the Courts would not refer to it.

On the Minister’s original comments about the consequences of the new clause, I think they are clear in the drafting. Subsection (2), as my right hon. Friend the Member for Birmingham, Hodge Hill said, states that processing personal data must comply with GDPR and the derogations in the Bill, and the consequences of subsection (3) are that the Information Commissioner should ensure compliance. In ensuring compliance, the commissioner will look to GDPR and the Bill to understand the consequences of a breach of a fundamental right that already exists.

[Margot James]

The source of the rights that we are discussing are EU legislation and case law. Those rights will be protected in UK domestic law after we leave the European Union by the European Union (Withdrawal) Bill. We have fully protected the right to data protection in our law. We have considered new clause 12 carefully, and it creates a new right. As I said, the arguments are well rehearsed, which is why we created clause 2 with the agreement of the Opposition spokespeople in the House of Lords.

The Government are determined to ensure the future free flow of data when we leave the European Union. We have heard much about the importance of, and the need for, an adequacy agreement, and I agree with everybody who has spoken on that. The general consensus is that, to achieve that, we need to faithfully implement the GDPR, and avoid the courts finding parts of the GDPR potentially incompatible with a new right. If that happened, rather than enabling the free flow of data, we would risk undermining it.

Twelve countries have negotiated adequacy arrangements with the European Union, including Canada, Israel, Uruguay, New Zealand and the United States. None of those countries was obliged by the EU Commission to put the charter of fundamental rights into their law, so I think Members can rest assured that the new clause is entirely unnecessary to achieve adequacy on our departure.

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[Margot James]

I do not agree with the hon. Gentleman. I share his concern that we need to negotiate an adequacy agreement effectively; I am at one with him on that matter. For the reasons I have outlined, I do not believe that, if our clause is passed unamended, it will undermine that right when we come to negotiate an agreement. He made the point that those other countries are in a different position. They are already third countries in relation to us, and will be so when we leave. We will become a third country when we leave the European Union. I accept that the situation is different, but it puts us at an advantage. We are incorporating the GDPR in its entirety into UK legislation, and I assure the hon. Gentleman that we have that safeguard.

Future free flow of data is absolutely at the top of our agenda for the forthcoming EU negotiations. As I said earlier, my right hon. Friend the Prime Minister made that clear in her Mansion House speech two weeks ago. We want to secure an agreement with the EU that provides stability and confidence for EU and UK businesses and individuals, and ensures we achieve our aims of maintaining and developing the UK’s strong trading and economic links with the European Union.

Ultimately, as some Opposition Members said, importing text from the EU charter of fundamental rights is unnecessary. The general principles of EU law will be retained when we leave the EU via the European Union (Withdrawal) Bill for the purposes of the interpretation of the retained EU law. The GDPR will be retained. Indeed, the Bill will firmly entrench it in our law. The right to the protection of personal information is a general principle of EU law, and has been recognised as such since the 1960s. The withdrawal Bill requires our courts to interpret the GDPR consistently with the general principle reflected in article 8 and retained CJEU case law, so far as it is possible to do so.

[Darren Jones]

Does the Minister recognise that, under the European Union (Withdrawal) Bill, the application of the EU acquis—EU law—is based on legislation that existed before the point of exit? It will not continue to apply to new legislation and developments after the point of exit. The new clause needs to be in the Bill to maintain that position for the future; we must not just look back into the past.

[Margot James]

The European Union (Withdrawal) Bill fully protects the rights to data protection in our law. As I said earlier, we are seeking not only adequacy after Brexit, but a continuing role in conjunction with the bodies in Europe that govern the GDPR, with the idea that we continue to contribute our expertise and benefit from theirs.

[Liam Byrne]

I am afraid we have heard a very weak argument against new clause 12. The Minister sought to prosecute two lines of argument: first, that new clause 12 risks confusion in the courts; and, secondly, that it is not needed. Let me take each in turn.

First, there can be no risk of confusion because this is not a new right. It is a right we already enjoy today, and our courts are well practised in balancing it with the other rights we enjoy. We are simply seeking to roll over the status quo into the future to put beyond doubt an adequacy agreement not just in the immediate years after we leave the European Union but in the decades that will follow.

Secondly, the Minister sought to persuade us that the new clause was not needed, and she had a couple of different lines of attack. First, she said that the source of our new protections would be the incorporation of EU case law and legislation as enshrined by the European Union (Withdrawal) Bill. Of course, that is simply not applicable to this case, because the one significant part of European legislation that the withdrawal Bill explicitly does not incorporate is the European charter of fundamental rights. The Minister slightly gave the game away when she read out the line in her briefing note that said that the rights we currently have in EU law would be enshrined and protected “so far as it is possible to do so.” That is exactly the kind of risk we are seeking to guard against.

As noble peers argued in the other place, the challenge with incorporating the GDPR into British law is that this is a piece of regulation and legislation that reflects the world of technology as it is today. It is not the first bit of data protection legislation and it will not be the last. At some point in the years to come, there will be a successor piece of legislation to this Bill and the courts’ challenge will be to make judgments that interpret an increasingly outmoded and outdated piece of legislation. We have to ensure that judgments made in the British courts and in the European courts remain in lockstep. If we lose that lockstep, we will jeopardise the future of an adequacy agreement. That will be bad for Britain, bad for British businesses and bad for technology jobs in all our constituencies.

The challenge we have with regulating in this particular field is that sometimes we have to be anticipatory in the way we structure regulations. Anyone who has spent any time with the British FinTech industry, which Ministers are keen to try and enhance, grow and develop for the years to come, will know that FinTech providers need to be able to test and reform bits of regulation in conjunction not only with the Information Commissioner but with other regulators such as the Financial Conduct Authority. For those regulators to be able to guarantee a degree of regulatory certainty, sometimes they will need to look beyond the letter of a particular piece of legislation, such as the Data Protection Bill when it becomes an Act, and reflect on the spirit of that legislation. The spirit is captured best by fundamental rights. The challenge we have is in the thousands of decisions that our regulators must take in the future. How do we put beyond doubt or dispute the preservation of regulatory lockstep with our single most important market next door?

The Uruguayan defence offered by the Minister will reassure few people. We should not be aspiring to the Uruguayan regime; we should be aspiring to something much deeper, more substantive and more harmonious. The Minister’s proposal will create a field day for lawyers. We all like lawyers; some of our Committee members are former lawyers—recovering lawyers in some cases. Lawyers should enjoy a profitable and successful future, but we in this House do not necessarily need to maximise their profit-making possibilities in the future. However, that is exactly what the Minister is doing by creating a pot pourri of legislation, which lawyers and judges will have to pick their way through. It is much simpler, much lower-risk, much safer and better for economic growth if we put beyond doubt, dispute and question the harmonisation of our data protection regime with our single most important market. That is why we need to incorporate article 8.

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[The Chair]

As I said, the vote on new clause 12, should there be one, will take place at a later date.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Terms relating to the processing of personal data

[Margot James]

I beg to move amendment 1, in clause 3, page 2, line 25, leave out “personal data” and insert “information”.

This amendment and Amendment 2 enable the definition of “processing” to be used in relation to any information, not just personal data.

[The Chair]

With this it will be convenient to discuss Government amendments 2 to 6 and 69.

[Margot James]

These amendments make a series of minor and technical changes to clause 3, which covers terminology relating to use of personal data. I do not propose to go through each one in detail, because they are designed to improve clarity and consistency of language, and no more. Amendments 1 and 2 amend the definition of “processing” in subsection (4), by replacing the term “personal data” with “information”. This has no material impact on the use of the term “processing” in parts 2 to 7 of the Bill, where the meaning of “processing” is to be understood within the context of the applicable regime, but the amendments ensure consistency with terminology in other legislation.

Amendments 3 and 6 are linked; amendment 6 adds a new paragraph (c) to subsection (14), confirming that the terms “controller” and “processor” have the same meaning in parts 5 to 7 of the Bill as they do in parts 2 to 4 respectively, unless otherwise stated. Amendment 3 adds a cross-reference to this new paragraph in subsection (6). Again, these are both technical in nature. Amendment 4 ensures that references in parts 5 to 7 of the Bill to chapter 2 of part 2 will be read as including the applied GDPR under chapter 3 of part 2, unless stated otherwise.

Amendment 69 removes similar wording from clause 184, because amendment 4 means that it is no longer required. Finally, amendment 5 improves the phraseology relating to the processing of personal data in subsection (14)(b).

Amendment 1 agreed to.

Amendments made: 2, in clause 3, page 2, line 26, leave out “personal data, or on sets of personal data” and insert “information, or on sets of information”.

See the explanatory statement for Amendment 1.

Amendment 3, in clause 3, page 2, line 41, after “83” insert “and see also subsection (14)(c)”.

This amendment is consequential on Amendment 6.

Amendment 4, in clause 3, page 3, line 27, at end insert —

“(aa) references to Chapter 2 of Part 2, or to a provision of that Chapter, include that Chapter or that provision as applied by Chapter 3 of Part 2;”.

This amendment makes clear that references to Chapter 2 of Part 2 in Parts 5 to 7 of the bill include that Chapter as applied by Chapter 3 of Part 2.

Amendment 5, in clause 3, page 3, line 28, leave out “processing and personal data are to processing and personal data” and insert “personal data, and the processing of personal data, are to personal data and processing”.

This amendment is consequential on Amendment 1.

Amendment 6, in clause 3, page 3, line 29, at end insert —

“(c) references to a controller or processor are to a controller or processor in relation to the processing of personal data to which Chapter 2 or 3 of Part 2, Part 3 or Part 4 applies.”—(Margot James.)

This amendment and amendment 3 make clear that references to controllers and processors in Parts 5 to 7 of the bill are to controllers and processors in relation to processing to which the GDPR, the applied GDPR or Part 3 or 4 of the bill applies.

Clause 3, as amended, ordered to stand part of the Bill.

Clauses 4 to 6 ordered to stand part of the Bill.

Clause 7

Meaning of “public authority” and “public body”

[Margot James]

I beg to move amendment 7, in clause 7, page 5, line 8, leave out “a body specified” and insert “body specified or described”.

This amendment and Amendment 8 make clear that regulations under Clause 7 may identify an authority or body by describing a type of authority or body, as well as by specifying an authority or body.

[The Chair]

With this it will be convenient to discuss Government amendments 8, 18, 19 and 62.

[Margot James]

Clause 7 defines the meaning of “public authority” for the purposes of the GDPR. Generally speaking, “public authority” will have the same meaning as the definition used in the Freedom of Information Act 2000 or the Freedom of Information (Scotland) Act 2002. Those Acts list a wide range of public authorities, including Departments, local authorities and NHS bodies. As the new legislation beds in, the list of authorities imported from those Acts may need to be adapted to function properly in a data protection setting rather than a freedom of information setting. Clause 7(1) therefore allows the Secretary of State to specify in regulations that additional bodies are public authorities for the purposes of data protection legislation. Conversely, subsection (3) allows the Secretary of State to specify that certain bodies are not to be treated as public authorities, even if they are defined as such for the purposes of freedom of information legislation.

Amendments 7 and 8 clarify that the Secretary of State may describe bodies that are or are not public authorities in addition to specifying them. They are technical amendments designed to improve the terminology used in relation to the Secretary of State’s regulation-making powers. Amendments 18 and 19 make corresponding provisions in relation to part 3 of the Bill.

Amendment 62 is designed to ensure that regulations made under clause 7 will not be considered as hybrid instruments. Regulations made under the clause are already subject to the affirmative resolution procedure, and the general duty to consult before making regulations, which is set out in clause 179, also applies. In this setting, the hybrid procedure would add nothing but bureaucracy.

[Liam Byrne]

The amendments look like tidying-up amendments, but it would help if the Minister put on the record the extent to which they will allow the Bill to bite effectively on the nation’s schools. Obviously, schools collect a great deal of data. They often hold not only exam data but data relating to eligibility for free school meals, and most schools operate systems such as ParentPay, which means that they capture children’s biometrics. Anything to do with the protection of children’s data has to be treated incredibly seriously. The school system in this country has been balkanised—often, academies are set up as private sector entities in complex chains and have problematic governance arrangements—so I think we would all benefit from the Minister saying a few words about the Bill’s bite on schools, academies and colleges. Will she also say a little more about her plans to ensure that there are statutory codes of practice to which everyone who provides education services must adhere?

[Margot James]

I thank the right hon. Gentleman for his comments. Obviously, we share his concern about the protection of children. He cites important and highly sensitive personal data such as biometrics. Schools, like all bodies, must have a legal basis—the public interest or the normal course of their business—for processing personal data.

The right hon. Gentleman raises safeguarding. Later in our deliberations, my hon. Friend the Under-Secretary of State for the Home Department will introduce Government amendments to strengthen the safeguarding aspects of the processing of personal data. Schools are public authorities, and GDPR protections intended for authorities will apply, as I said. Schedule 3 provides further and specific protection on the points that he raises.

[Liam Byrne]

Will the Minister set on the record explicitly the fact that academies are covered in the same way as schools? An academy may be set up by a private sector organisation, set up as a charitable body, or set up in a way that is outwith the formal education system. Ofsted has raised concerns about unregulated schools, for example. Can she confirm whether organisations that provide education services—whether they are academies, charities or local education authority schools—are governed by the codes? Crucially, can she confirm that she will publish the code of practice?

[Margot James]

I certainly can confirm that the schools that the right hon. Gentleman has cited—academies run by private sector organisations and/or charities—are public authorities for the purposes of the Bill, and will be subject to the same protections.

Question put and agreed to.

Amendment made: 8, in clause 7, page 5, line 13, after “specified” insert “or described”.—(Margot James.)

See the explanatory statement for Amendment 7.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 8

Lawfulness of processing: public interest etc

[Daniel Zeichner (Cambridge) (Lab)]

I beg to move amendment 140, in clause 8, page 5, line 23, after “includes” insert

“but is not limited to,”.

--- Later in debate ---

[Margot James]

I recognise the expertise of the hon. Member for Cambridge in this area, and I am glad of the opportunity to debate the matter fully with him, as I am conscious that I did not address the points he made in his good contribution on Second Reading. We all agree on the importance of scientific research, and one of the things I am most proud of in the industrial strategy is the huge increase in public funding for research and development. We welcome the interest in the Bill shown by the Wellcome Trust and other organisations. They are concerned that universities processing personal data in the context of ground-breaking medical research will not have a clear legal basis for doing so. The Government recognise how important that is, but we believe that the amendment is not necessary and that there is no need specifically to mention the research functions of public bodies in clause 8.

It might be helpful if I explain what clause 8 is designed to do. If an organisation is to process personal data, it must have a legal basis for doing so under article 6 of the GDPR. The clearest basis is where the data subject has given his or her consent to the processing, but article 6 also permits processing without someone’s consent in certain circumstances, including where

“processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller”

Clause 8 helps to explain the meaning of “public interest tasks” by providing a list of processing activities that fall into that category. The list was always intended to be non-exhaustive, which is why we have used the word “includes”. In law, that word is always assumed to introduce a non-exhaustive list, and we have tried to make that point as clear as possible in the explanatory notes.

Additional phrasing in the Bill, such as that proposed in amendment 140, would add nothing to what is already in the clause’s interpretation under English law, and it would risk confusing the interpretation of the many other uses of that word elsewhere in the Bill. Given the non-exhaustive nature of the list, the fact that publicly funded research is not mentioned specifically does not mean that the research functions of public bodies will not be considered as “public interest tasks”, thereby providing a legal basis for universities to process personal data.

The Information Commissioner’s Office said:

“Universities are likely to be classified as public authorities, so the public task basis is likely to apply to much of their processing”.

Its guidance goes on to give “teaching and research purposes” as one such example. Hon. Members will appreciate that the list could become very long and still not be conclusive if we included everything that the Government and the Information Commissioner’s Office consider amounts to a “public interest task”. Given those reassurances, I hope that the hon. Gentleman will not feel it necessary to press his amendment to a vote.

[Daniel Zeichner]

I thank the Minister for her kind words—particularly about Second Reading. I think that we were all puzzled about what was going on at about five minutes to 10; I am none the wiser. I am slightly disappointed by her response, because this is not a party political discussion. We all want to get to the same place. In many ways, the discussion we have just had is not that dissimilar from the previous one about educational institutions, schools and academies. There are many grey areas relating to what universities are, and what their status and that of the research bodies associated with them is. My worry is that if we just take the Minister’s reassurances rather than amend the Bill, the uncertainty to which I alluded—it is not my uncertainty; it is what staff at esteemed research institutions say they feel—will be a problem. We should try to improve the Bill to get the clarity we need.

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[Margot James]

I beg to move amendment 9, in clause 8, page 5, line 29, at end insert—

“( ) an activity that supports or promotes democratic engagement.”

This amendment adds a reference to processing of personal data that is necessary for activities that support or promote democratic engagement to Clause 8 (lawfulness of processing: public interest etc).

Since the Bill’s introduction, it has been brought to our attention by a range of stakeholders from all sides of the political divide that there is concern about how processing for the purpose of democratic engagement should be treated for the purposes of the GDPR. As my noble Friend Lord Ashton set out in the other place, the Government believe that there is a strong public interest in political parties and elected representatives and officials being able to engage with the public both inside and outside elections, which may sometimes include the processing of personal data.

Having considered the matter further since the debates in the other place, the Government have concluded that it would be prudent to include a provision in the Bill to provide greater clarity to those operating in the area of democratic engagement. Helpfully, clause 8 already provides high-level examples of processing activities that the Government consider could be undertaken on grounds of public interest if the data controller can demonstrate that the processing is necessary for the purposes of the processing activity. As a consequence of the importance that the Government attach to the matter, amendment 9 adds to that list

“an activity that supports or promotes democratic engagement.”

That term has been deliberately chosen with the intention of covering a range of activities carried out with a view to encouraging the general public to get involved in the exercise of their democratic rights. We think that that could include communicating with electors, campaigning activities, supporting candidates and elected representatives, casework, surveys and opinion gathering and fundraising to support any of those activities. Any processing of personal data in connection with those activities would have to be necessary for their purpose and have a legal basis. We will ensure that the explanatory notes to the Bill include such examples, to assist the interpretation of what this provision might mean in practice.

The amendment does not seek to create a partisan advantage for any one side or to create new exemptions from the data protection legislation. It is intended to provide greater clarity. It is also independent of any particular technology, given that in a short time we have moved from physical post to email, Twitter, text messages, WhatsApp, Facebook and so forth.

The Government are always open to suggestions of what else could be done to ensure legal and operational clarity for political parties and elected representatives. Further work might be needed to ensure that their current activities have the legal basis required to rely on the public interest condition. The Government will shortly engage with political parties via the parliamentary parties panel to discuss the matter further and in more detail.

[Liam Byrne]

I was surprised and not a little troubled that the Minister did not include the opportunity of creating Member-specific apps in her list—especially those which suck out the pictures from someone’s phone without their permission. Presumably that was not included in her list because that is already illegal.

I am grateful to the Minister for tabling the amendment and for her earlier correspondence with my noble Friend Lord Kennedy. She undertook to reflect on that correspondence and bring forward amendments. She helpfully set out a list of some of the activities that may be undertaken by a political party that fall within the ambit of the amendment. She gave a pretty comprehensive list, but will she put beyond doubt whether canvassing and collecting canvass returns were in her mind when she tabled the amendment and are therefore covered by the amendment? That would be extremely helpful.

The amendment is well intentioned. The health of our democracy is important to all parties. We look forward to the conversations that she will broker through the parliamentary parties panel.

--- Later in debate ---

The Electoral Commission has said that general political fundraising using the electoral register is not lawful, so it might be helpful to have that on the face of the Bill or in regulations. The main issue with the test of “for electoral purposes” is that every activity needs to be related to an election for it to be processed under the supplied conditions. In practice, parties engage in general campaigning, including issue-based campaigning, which is not necessarily directed at elections. In broad terms, we welcome the amendment and we make these points merely to take forward further debate.

[Margot James]

I thank the right hon. Member for Birmingham, Hodge Hill and his noble Friends for their constructive participation in the development of the amendment. He mentioned the app of the Secretary of State for Digital, Culture, Media and Sport; I assure him that it is compliant in every way with current data protection law and will be compliant with the provisions of the Bill. I commend my right hon. Friend for setting a new standard in the way that he communicates with his constituents.

I reassure the right hon. Member for Birmingham, Hodge Hill that canvassing and collecting canvassing returns are covered by the amendment. That is absolutely vital. I reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that it covers campaigning activity and communications between elections, concerning issues as well as elections. As I said in my short preamble, the detail of the matter can be further discussed at a meeting of the parliamentary parties panel and it is within everybody’s rights to contribute their thoughts to panel members for those important forthcoming discussions.

Amendment 9 agreed to.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9

Child’s consent in relation to information society services

Question proposed, That the clause stand part of the Bill.

[Liam Byrne]

The clause is an important topic of debate because it enshrines the Government’s derogation from European frameworks in law and sets the minimum age of consent for data processing at 13 rather than 16.

That derogation was invented before social media companies arrived at their current strength and delivered the very wide and sophisticated range of tools that help ensure that children become almost addicted to social media devices. In the debate on this topic over the last two or three months there have been fresh revelations from leaders of social media firms that they forbid their children to engage in the apps that their companies deliver. We have had revelations from engineers who have worked at companies such as Facebook, Twitter and Instagram that a great deal of thought goes into how they create devices and forms of interaction that encourage that basic addiction to their apps.

We are at the beginning of what I hope is a period of re-regulation and better regulation of these firms, so that we can do away with many of the risks that affect our children. In a way, I was encouraged to see the Secretary of State’s interview with The Times on Saturday, in which he said very clearly that he would like to see better regulation of social media firms in this country before his own children are tempted to engage in this exciting online world. Many of us have children who are already engaged in this and, as a parent, I have real concerns about the freedom with which social media companies can develop and deliver these techniques, as well as their freedom to take a rather relaxed view of taking down often unfortunate and extremist content. I know that we will have this debate later, and we have tabled amendments to encourage the Government to set a deadline for reforming the electronic commerce directive.

It is important to draw a little more out of the Government about how they see the safeguards coming into place around clause 9. We have not sought to challenge the derogation the Government seek to enshrine in the Bill, but we ensured widespread support for Baroness Kidron’s amendment on the creation of an age-appropriate code. However, rather than simply wave clause 9 through, it is incumbent on the Minister to say a little about how she will ensure that there are adequate safeguards in place to protect our children from the very threats the Secretary of State lit up in lights on Saturday.

[Margot James]

I support the general tone of the right hon. Gentleman’s comments. I too was pleased to see the interview with the Secretary of State, his focus on the addictive nature of some of these apps and the idea that there could be within the technology a means of limiting the time children spend on them, which parents could click on. The Information Commissioner’s Office will publish guidance shortly on how clause 9 will work and what those safeguards will be. She will take into consideration an age-appropriate design, as suggested by Baroness Kidron.

Overall, where online services referred to in the Bill as “information society services” choose to rely on consent as the basis for their processing, article 8 of the GDPR sets the age below which a website must obtain the parents’ and not the child’s consent. Most websites will be captured by this additional safeguard, ranging from online banking to search engines to social media, with social media probably being the most relevant to the age group in question.

The GDPR gives member states the flexibility to set this age within a prescribed range of between 13 and 16. The Bill sets it at 13, with an exception for preventive and counselling services, for which the test is based purely on the child’s capacity to understand what they are being asked to consent to. The Government are satisfied that the Information Commissioner’s Office has adequate enforcement powers, including large fines for any offences committed in this area.

[Darren Jones]

The Minister said that Europe provides that the age range is between 13 and 16. In fact, the GDPR says the age for consent is 16, but that member states can derogate down to 13. I do not wish to be an annoying lawyer, but it is an important distinction. Our colleagues in Europe are saying that the age they deem to be appropriate is 16, but they are giving member states flexibility to go lower. Interestingly, article 8(2) talks about how reasonable efforts need to be taken to verify age and consent

“taking into consideration available technology.”

My view is that, on these types of issues, there should be better technology for age verification as part of using online services and, where children’s data is being used to commercialise and monetise for the purposes of advertising, there should be additional safeguards for children.

I ask the Minister only to keep an open mind in the future, so that when we get to a position where technology providers can verify the age of children—I appreciate that is perhaps currently a little difficult—if industry does not move voluntarily to this position, the Government consider regulating in that regard.

[Margot James]

The hon. Gentleman is right that the GDPR stipulates 16 as the minimum age for consenting to data processing without parental consent, but that it provides for member states to derogate from that. At least seven, including Spain, Ireland and Denmark, have done just that. Like us, they have proposed a much younger age of 13, so we are not an outlier on the issue.

Currently, the minimum age in this country for allowing personal data to be used without parental consent is 12, so in a sense we are derogating from that policy by setting the minimum age at 13 in the Bill. The hon. Gentleman is right to point out that it is very difficult for technology companies to implement meaningful verification mechanisms for those younger than 18, who may not have anything like a credit card or driving licence. I have no doubt that the Government will keep an open mind on the matter, in line with other developments that will take place long after the Bill is passed.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Special categories of personal data and criminal convictions etc data

[Stuart C. McDonald]

I beg to move amendment 129, in clause 10, page 6, line 19, leave out subsections (6) and (7).

This amendment would remove delegated powers that would allow the Secretary of State to vary the conditions and safeguards governing the general processing of sensitive personal data.

--- Later in debate ---

[Liam Byrne]

We support these amendments very strongly, and if possible we would like to test the Committee’s will on this. The Bill has a succession of Henry VIII powers at a number of different clauses, which in effect give the Secretary of State the power to vary and amend regulations that are incredibly important. We cannot detach this debate from the earlier debate on the incorporation of article 8. We now have a Bill that is pretty weak on the fundamental principles of law that it seeks to enshrine; the Government want to set their face against incorporating some protections that we have in the European charter of fundamental rights. Therefore, the idea that we leave out some fundamental protections of rights, but then hand over to the Minister unfettered power to make regulations as he or she sees fit, does not seem to be in Parliament’s best interest. We think that the Government need to think again.

The powers in this particular clause create the possibility that exemptions to data protection rights, which have not been considered or debated in Parliament, go through effectively at the whim of the Minister. Those powers are enshrined in clause 10, and in clauses 35 and 86; we will come on to those debates, but the powers that clause 10 proposes to grant the Minister are in effect unilaterally to vary the conditions and safeguards governing the general processing of sensitive personal data—the general data set out in schedule 1—and then to add new conditions to schedules 1, 8 and 10.

That means that we would basically give the Secretary of State the power to expand the permissible reasons to allow processing of sensitive personal data, both generally and particularly for law enforcement and intelligence agencies. That is something that has been considered extensively in the other place. The House of Lords Constitution Committee said:

“The Government’s desire to future-proof legislation…must be balanced against the need for Parliament to scrutinise and, where necessary, constrain executive power.”

The Delegated Powers and Regulatory Reform Committee said that

“it is not good enough for Government to say that they need ‘flexibility’ to pass laws by secondary instead of primary legislation without explaining in detail why”.

The Ministers slightly let the cat out of the bag when Baroness Chisholm spoke up for the Government and said that if they were to accept the Committee’s recommendations in full that would

“leave the Government unable to accommodate developments in data processing and the changing requirements of certain sectors”—[Official Report, House of Lords, 11 December 2017; Vol. 787, c. 1464.]

That includes, for example, the insurance sector. That is patently nonsense. It would not constrain the Government’s ability to introduce wise regulations in this place; it would simply constrain the Government’s ability to do that unilaterally without effective recourse to Parliament. We are seeking a very clear Government explanation as to why the Secretary of State, not Parliament, should be empowered to alter the data protection regime to keep it up to date, and that explanation needs to be all the more robust following the remarks that the Minister has made about her attitude towards incorporating the fundamental right of privacy in British law.

We think that the amendments would be sensible constraints on Henry VIII powers. There is wide consensus across both Houses that they are necessary. They will not damage or diminish the Secretary of State’s ability to keep regulation up to date. Many of us have been in this place long enough to know that it is perfectly within the Executive’s power to keep regulatory reform on track if the political will is there. We are asking for a defence of Parliament’s right to oversee, scrutinise and, where necessary, constrain the powers of the Secretary of State to regulate in this field.

[Margot James]

Following recommendations by the Delegated Powers and Regulatory Reform Committee, we have considered carefully the use of the Bill’s order-making powers and amended the Bill in the House of Lords to provide additional safeguards for the exercise of those powers, but Members of the Lords on all sides of the House agreed that it was essential to retain the order-making powers in the Bill as amended.

I will explain how the powers will be used in practice. Article 9 of the GDPR prohibits the processing of special categories of personal data unless one of the exemptions in paragraph 2 of article 9 applies. The exemptions include, for example, the situation where processing is necessary for reasons of substantial public interest. Schedule 1 to the Bill provides a series of processing conditions for special categories of data under article 9 and criminal convictions data under article 10. Most of those processing conditions have been imported from the Data Protection Act 1998 and statutory instruments made under that Act, but some of them are new—for example, the conditions on anti-doping in sport or processing for insurance purposes. They have been added to reflect the way in which the use of data has changed over the past 20 years.

Amendment 129 would remove the ability to amend schedule 1 via secondary legislation. That would be particularly damaging because it would mean that primary legislation might be needed every time the need for a new processing activity involving special categories of data arose. The 1998 Act was itself amended several times through secondary legislation, and it is important that we retain the flexibility to respond to emerging technologies and the different ways in which data might be used in the future.

It is interesting to note that the hon. Member for Sheffield, Heeley has tabled an amendment to schedule 1 that would add a completely new processing condition in relation to maintaining the missing persons register. My hon. Friend the Under-Secretary of State for the Home Department will touch on the merits of that proposal later, but the fact that others in the Committee are considering further changes to schedule 1 illustrates the point that schedule 1 cannot simply freeze the regimes in parts 3 and 4 of the Bill. I urge colleagues to resist the amendment.

[Stuart C. McDonald]

It is vital that we get the balance right: we are talking about very sensitive information and processing of that information. It is absolutely right for hon. Members to table amendments to the Bill and for them to be considered, including proposals on the missing persons register. The fact that hon. Members are suggesting changes at this stage does not mean that we are saying that we want to fix things for all time now and never suggest changes again. We are saying that we are not happy with the process whereby changes are brought about. The Minister has not explained why she believes that changes could not be brought about satisfactorily by changes to legislation from time to time. She has not explained why there would be urgent situations in which the only possibility would be a “Take it or leave it” statutory instrument. In the light of the seriousness of the data that we are speaking about and the inadequacy of the Minister’s explanation, we would like to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

Special categories of personal data and criminal convictions etc data

[Margot James]

I beg to move amendment 76, in schedule 1, page 123, line 21, at beginning insert “Except as otherwise provided,”.

This amendment is consequential on Amendments 79, 82 and 90.

[The Chair]

With this it will be convenient to discuss Government amendments 77 to 83 and 87 to 91.

[Margot James]

Part 2 of schedule 1 sets out a series of processing activities that are considered to be or have the potential to be in the substantial public interest. That is important in ensuring that such activities can continue even in the absence of explicit consent and even where they require special categories of personal data to be processed.

I am pleased to introduce amendment 78 today. It will help businesses and other organisations ensure that boardrooms and senior management levels are truly representative of the workforce they manage and the communities they serve. In my former role at the Department for Business, Energy and Industrial Strategy, I worked closely with Sir John Parker, to whom I pay great tribute for the work that he has done in this area. I worked with him to examine how we could ensure that more FTSE 100 companies and others did more to attract talent from a wide range of racial and ethnic backgrounds.

In November 2016, Sir John published a report that showed that although 14% of the population identified as black, Asian or other minority ethnic status, only 1.5% of directors in FTSE 100 boardrooms were UK citizens from such a minority. Although significant progress has been made in recent years to improve the gender balance in the boardrooms of such companies, the severe under-representation of people from minority ethnic backgrounds cannot be tolerated in modern society. Sir John’s report included a series of recommendations to improve ethnic diversity in the boardroom. He encouraged companies to make better use of executive search firms to identify potential candidates and invite them to be interviewed for managerial vacancies.

Amendment 78 will add a new processing condition to schedule 1 to allow organisations to process personal data about potential candidates’ racial or ethnic origin and identify suitable candidates for potential board or managerial positions. The processing condition will apply only until such point as it is reasonable to expect the organisation to get the potential candidate’s consent to the continued processing of their racial and ethnic origin data. If the data subject gave a positive indication that she or he did not consent to the processing of such data, the controller would have to cease processing the data.

I hope that hon. Members welcome the steps we are taking to implement the recommendations of the Parker review. We believe that it is in the interest of society as a whole to ensure that businesses and other organisations recruit the best person for the job if they are going to compete in today’s economy. People from all backgrounds should be given equal opportunities to contribute.

--- Later in debate ---

[Liam Byrne]

Oh dear!

[Margot James]

It does happen. That is not a new provision, but one that was imported from the current law. Unfortunately, some crucial words were accidentally lost in the process of importing it. The amendment reinstates them.

Schedule 1 sets out UK domestic legislation to allow the processing of particularly sensitive data in certain circumstances. The Government’s view is that the processing of such data must be undertaken with adequate and appropriate safeguards to ensure that individuals’ most sensitive data is appropriately protected. One of those safeguards is the new requirement for an appropriate policy document to be maintained in most circumstances when special categories of data and criminal convictions data are processed. That is set out in paragraph 5 and part 4 of the schedule.

Since the Bill’s introduction, we have reflected on whether there are cases where the requirement to hold an appropriate policy document is so disproportionate that, rather than improving protections, it effectively prevents the necessary processing from taking place. Amendments 79, 82 and 90 remove the requirement for a controller to have an appropriate policy document where processing involves the disclosure of special category data to a competent authority for the detection or prevention of an unlawful act, the disclosure of special category data for specific purposes in connection with journalism, or the disclosure of special category data to an anti-doping authority. Amendment 80 defines what is meant by “competent authority”. The aim of those amendments is to avoid a scenario in which an individual who never normally processes data under schedule 1 wishes to report a crime, report something of public interest to the media or report doping activities in sport and, in so doing, processes special categories of data and would have to have in place an appropriate policy document.

Amendment 76 reflects that change to the requirement to have an appropriate policy document by inserting the words, “Except as otherwise provided” in paragraph 5 of the schedule. Amendments 87 and 89 make it clear that, in the context of schedule 1, “withholding consent” means doing something purposeful, not just neglecting to reply to a letter from the data controller. That avoids a world in which data controllers have an incentive not to bother requesting consent in the first place.

Paragraph 31 of the schedule requires the controller to have an appropriate policy document in place when relying on a processing condition in part 2 of the schedule to process criminal convictions data. However, all the provisions in part 2 are subject to the policy document requirement except where noted, so there is no reason to state it again in paragraph 31. Amendment 91 removes that duplicate requirement. It is simply a tidying-up amendment to improve the coherence of the Bill.

[Darren Jones]

On a point of order, Mr Hanson. I think I was remiss in not declaring my interest at the start of my contributions to today’s proceedings. With your permission, I seek to rectify that.

Draft Electronic Commerce Directive (Miscellaneous Provisions) Regulations 2018

Margot James Excerpts

Tuesday 6th March 2018 General Committees

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

I beg to move,

That the Committee has considered the draft Electronic Commerce Directive (Miscellaneous Provisions) Regulations 2018.

It is a great pleasure to serve under your chairmanship, Mr Austin. The regulations, which were laid in both Houses on 30 January, seek to implement two parts of the electronic commerce directive, or e-commerce directive, in relation to various offences: the country of origin principle and provisions relating to the liability of intermediary service providers. When new legislation is introduced in a particular policy area and an element of it relates to offences or requirements that could apply to an information society service, such as intimate images on an online platform, the directive must be implemented to apply the rules. That must be done for the UK to be compliant with European Union law.

The statutory instrument does not create new policy; it is a technical measure to ensure that the offences are consistent with the e-commerce directive. The directive has already been implemented in UK law for 34 offences, along with regulations where that has been necessary to comply with EU law. The regulations under discussion implement the directive in relation to various offences, including those concerning extreme pornography and restricting the publication of material by which a child involved in an inquiry may be identified. The Committee should be aware that my Department worked closely with officials in the Scottish Government and the Northern Ireland Assembly on the draft instrument, and the Scottish Government are keen to see it come into law.

I will go into a little more detail about what the e-commerce directive is and what the statutory instrument aims to achieve. The directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services within the European economic area. The SI implements the country of origin principle in relation to the offences, where relevant. For example, articles 3(2) and 3(4) of the directive, which relate to the extreme pornography offence, were implemented in the Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 2011. Under the country of origin principle, information society services should be under only the jurisdiction of the member state in which the service is established, not the European economic area country that the service targets. The country of origin rules are described in more detail in paragraph 4.2 of the explanatory memorandum. The implementation also allows for the prosecution of a UK-based provider if it carries out the offences in the statutory instrument in another European economic area state.

Finally, the statutory instrument also implements articles 12 to 14 of the directive where relevant, which limit, in specified circumstances, the liability of intermediary service providers that carry out certain activities essential for the operation of the internet, namely those that act as mere conduits and those that cache or host information.

I emphasise that the sole intention and outcome of the statutory instrument is to implement the parts of the EC directive in relation to various offences where it has not been done before. It will not create or set new policy; it is a technical measure to ensure compliance with EU law. I hope that the Committee will allow the statutory instrument to become law.

--- Later in debate ---

[Margot James]

I will first respond to the comments made by the right hon. Member for Birmingham, Hodge Hill. I agree that parts of the e-commerce directive, particularly in respect of its limiting the liability of service providers, are out of date. It was passed long before the service providers had the power they now have. It is important to note that it limits their liability in three categories, but I agree with him about the limits on hosting services’ liabilities. Perhaps there is also a measure of agreement with him elsewhere in the EU, in that the German Government’s regulation requiring internet hosting services to take down within 24 hours content that is agreed to be illegal, as far as the Germans are concerned, is not considered to be an infraction.

On the question why this has not been done before, I agree with the right hon. Gentleman: when I read my brief, I too was mystified by the timing. In answer to his question, in 2016—almost two years ago—the Scottish Government requested that we implement the EC directive in relation to the intimate image offence. Although we would like to have done this sooner, the process has been delayed in part by last year’s general election and in part by the Scottish Government subsequently coming to the UK Government with a list of additional offences to be included.

On proposals to modernise the EC directive, the right hon. Gentleman should probably address those questions elsewhere in Government, possibly to the Cabinet Office or the Department for Exiting the European Union. It is not my place to comment on that, although I watch with great interest what has happened in Germany, as we propose to respond to our consultation on internet safety. The Government are determined to make the UK the safest place to be online and there is clearly a lot of work to be done to realise that ambition.

I am grateful to the hon. Member for Paisley and Renfrewshire North, who represents the Scottish National party, for his support of the proposals. I had better not comment on the particular offence of football—that is definitely a Scottish matter for the Scottish Government and the SNP in the Scottish Parliament.

These regulations will provide legal certainty to online services to enable them to trade across the EU with confidence and I commend them to the Committee.

Question put and agreed to.

Data Protection Bill [Lords]

Margot James Excerpts

Money resolution: House of Commons & Programme motion: House of Commons
Monday 5th March 2018 Commons Chamber

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

I thank all Members for their contributions to this excellent and wide-ranging debate and their lordships for the immense amount of work that they have done on the Bill thus far. Members on both sides of the House want a Bill that protects personal data and allows individuals to maintain control over what is their property and what is important to them, and we want these rights to be enforceable. That is a positive start on which we can all agree.

Various Members, including the hon. Member for Bristol North West (Darren Jones), the right hon. Member for East Ham (Stephen Timms) and the shadow Minister, stressed the importance of the continuity of adequacy post Brexit. The hon. Member for Bristol North West asked what the Prime Minister meant by saying that she wanted to achieve more than adequacy. It was, I am sure, to ensure that the Information Commissioner can continue her excellent contribution to the evolution of the GDPR through her association with the European data protection board, when that comes into being.

The hon. Member for Argyll and Bute (Brendan O’Hara), the hon. and learned Member for Edinburgh South West (Joanna Cherry), the right hon. Member for Kingston and Surbiton (Sir Edward Davey) and many others mentioned immigration. I want to reassure the House that we are seeking not a blanket exemption, but something that can be applied only when complying with a certain right would be likely to prejudice the maintenance of effective immigration control. Every request to exercise a right under the GDPR would still have to be considered on its individual merits, and the rights of appeal required by the GDPR remain in place.

There was a great deal of debate about the freedom of the press. In the short time that I have, I cannot do justice to the fantastic contributions from my hon. Friends the Members for North Devon (Peter Heaton-Jones) and for South Dorset (Richard Drax) and the hon. Members for Edinburgh West (Christine Jardine) and for Keighley (John Grogan). We heard the real show stopper from my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who was listened to with rapt attention as he contrasted the pretence of freedom of speech with the reality of control, which would be the result of the amendments to which we have been asked to agree. The Government have been clear that we will attempt to defeat them in this place.

We have had a very valuable debate. We have touched on various issues—children and social media, artificial intelligence and cyber-resilience—and there are others that we will address subsequently.

[Liam Byrne]

Will the Minister give way?

[Margot James]

I will have plenty of time in Committee to debate with the right hon. Gentleman. I am sure that we all agree that the Bill is important and timely.

[Kevin Brennan (Cardiff West) (Lab)]

On a point of order, Mr Speaker. I note that the Minister has not yet concluded her remarks, but it seems that she might do so before the moment of interruption. There are two outstanding motions on the Order Paper to be voted on following the decision on Second Reading: the programme motion and the money resolution. I note that, under Standing Order No. 83A(7) and Standing Order No. 52(1)(a), they are not subject to debate, but if there were any time left over between the conclusion of the Minister’s remarks and the moment of interruption, would it be possible to discuss those two motions?

--- Later in debate ---

[Mr Speaker]

It is for the Minister to decide how long she replies. I am sorry if the hon. Gentleman feels that his points have not been responded to by the Minister, but she is legendarily succinct, and has obviously decided—independently, or in consultation with her colleagues on a collective basis—that tonight shall be no exception to the general principle of Jamesian succinctness.

[Margot James]

I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Data Protection Bill [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Data Protection Bill [Lords]:

Committal

1. The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 27 March 2018.

3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and up to and including Third Reading

4. Proceedings on Consideration and proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.

Other proceedings

7. Any other proceedings on the Bill may be programmed.—(Rebecca Harris.)

Question agreed to.

[Mr Speaker]

Well, it is most unusual that we are proceeding in quite such an efficient way before we have reached the moment of interruption. It is constitutionally notable, and colleagues will wish to take account of it, either for the purposes of repetition in the future or avoidance, depending upon their taste.

Data Protection Bill [Lords] (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Data Protection Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of:

(1) the payment out of money provided by Parliament of—

(a) any expenditure incurred under or by virtue of the Act by a Minister of the Crown or a government department; and

(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided; and

(2) the payment of sums into the Consolidated Fund.—(Rebecca Harris.)

Question agreed to.

Superfast Broadband: North East Hertfordshire

Margot James Excerpts

Thursday 8th February 2018 Commons Chamber

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

I thank my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) for securing this debate and for his extremely well-informed speech, from which I learned a great deal and which I shall read again after the debate. He has clearly been involved in this issue for a long time and has outstanding knowledge of the problems. This debate gives me the opportunity to update the House on the Government’s plans and progress towards ensuring universal high-speed broadband.

Broadband connectivity is crucial, even more so in rural communities throughout the UK than in our urban centres. The Government and local partners are investing £1.7 billion in the superfast broadband programme. The programme has provided superfast coverage with speeds of more than 24 megabits per second for more than 4.75 million premises in areas that otherwise would not have been covered by a commercially funded roll-out. Some 95% of homes and businesses in the UK can now access superfast broadband, up from 45% in 2010. As a result of efficiency savings in the initial roll-out, at least £210 million of funding will be available to support further investment. Because of the high levels of take-up, we will also have gainshare funding from the additional profits from the network, projected to reach at least £527 million. That means that a total of £737 million will be available to support further roll-out.

My right hon. and learned Friend the Member for North East Hertfordshire will recognise that improvements have been achieved in his constituency over the past few years, and he quoted some figures. Since the beginning of last year, superfast coverage in his constituency has increased from 71% to 84%, while 92% of premises have speeds of 10 Mbps or above. The Connected Counties project, to which my right hon. and learned Friend referred, is delivering across both Hertfordshire and Buckinghamshire, and has to date provided superfast broadband access to more than 71,000 premises that otherwise would have been left behind. That equates to more than 96% superfast coverage across Hertfordshire. Additionally, 23,000 premises are still to be covered through the project’s current roll-out plans.

Beyond the scope of the Connected Counties project, Hertfordshire County Council is progressing the option of a new procurement exercise. I understand that the council has already undertaken an open market review to understand the latest commercial plans in the county. That is evidence of the council’s commitment to ensuring that areas are not left behind.

I recognise that the communities that have not yet got coverage—my right hon. and learned Friend referred to some of them—will feel left out. In the case of Hertfordshire, the local authority has managed the current delivery contract with BT to maximise coverage to as many premises as possible, as quickly as possible. That can sometimes leave gaps on the ground where some areas are covered and adjacent areas are not, as my right hon. and learned Friend outlined in his speech. However, the alternative would have been to prioritise some communities over others during the roll-out, which would have been less efficient and would have involved the local authority in making invidious choices to determine which communities should get covered first. In that context, the approach taken by Hertfordshire County Council seems reasonable. Broadband Delivery UK has managed the programme effectively. Very few major infrastructure projects achieve their delivery target on schedule and with so much funding being returned.

I recognise the need to ensure that new housing has superfast coverage. Openreach has committed that all new build developments with at least 30 properties will have fibre to the premises. That will ensure that almost all new housing has full fibre access. We are also continuing to focus very much on the remaining 5% of premises that do not yet have superfast access. Across the UK as a whole, we are confident that at least half the remaining premises will get that superfast coverage through the continued roll-out.

However, even with this further delivery, some premises will remain without the superfast broadband that they need. We are therefore working hard on our commitment to ensure universal high-speed broadband of at least 10 Mbps by 2020. We will shortly set out the design for a legal right to high-speed broadband in secondary legislation, alongside our detailed response to the consultation. Ofcom’s implementation is expected to take two years from when we lay secondary legislation, meeting the Government’s commitment of giving everyone access to high-speed broadband by 2020.

In the meantime, the Better Broadband Scheme is available for any home or business with speeds below 2 Mbps. This provides a subsidy of up to £350 for any eligible premises for satellite broadband or, where available, other solutions including fixed 4G, fixed wireless, or community fibre projects. This scheme has now supported more than 13,000 homes and businesses.

Communities that currently do not have superfast broadband can also consider the option of undertaking their own community project. Community projects can either be completely self-managed and delivered, or can involve communities co-funding with providers such as BT, via the community fibre partnerships scheme. Our focus until now has been on extending superfast broadband coverage, but we also need to move to ensure a transformation in the UK’s digital infrastructure, so that it is based on fibre, or full fibre, to the premises. Currently, only 3% of premises have a fibre-optic connection. We accept that that is not good enough. We have a target of at least 10 million premises having a full fibre connection by 2022. Recent industry announcements show that that is achievable.

In answer to my right hon. and learned Friend’s question, I have met Clive Selley, the chief executive of BT Openreach. When I next meet him, I will raise with him the debacle that my right hon. and learned Friend described when residents turned down the offer from Gigaclear on the basis that BT Openreach was apparently going to deliver on their needs in a timely manner, only for them to be let down. I do take that to heart; the residents must be deeply frustrated and upset by that, and I will raise it with Mr Selley when I next meet him.

Virgin Media, KCOM, Hyperoptic, Gigaclear and others all have plans for significant new fibre coverage. Last week, Openreach announced its plan to reach 3 million premises by 2020 and its proposals to get to 10 million by 2025 if the conditions are right. I was very pleased to hear today the TalkTalk announcement that it will reduce its dividend in order to connect 3 million new premises with full fibre. I congratulate the board of TalkTalk on that decision.

The Government have a number of measures to support full fibre roll-out. The Government’s local full fibre networks programme has six wave 1 projects under way and bids for wave 2 were received on 26 January. We expect to announce the successful wave 2 projects in March and, in line with our manifesto commitment, we will also make full fibre connection vouchers available for companies across the country in 2018.

The digital infrastructure investment fund is now in place with Amber Fund Management Ltd and M&G Investments to provide £400 million of investment capital, alongside private capital, for new expanding providers of fibre broadband. Our barrier-busting taskforce is also now established and tackling the barriers to fibre roll-out across the UK. We are also introducing a five-year relief from business rates in England for new fibre infrastructure.

We are therefore making good progress in providing rural broadband coverage, but we recognise that we need to finish the job and it is our intention to do that fully. We will also be pushing hard on full fibre coverage. I welcome the continued interest and support from the Members of this House, and their expertise—particularly that of my right hon. and learned Friend—as I continue to drive this work and ensure that we deliver against our goals.

Question put and agreed to.

Oral Answers to Questions

Margot James Excerpts

Thursday 8th February 2018 Commons Chamber

[Victoria Prentis (Banbury) (Con)]

5. What steps his Department is taking to improve broadband and mobile phone coverage in rural areas.

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

Our ambition is for the UK to have better digital connectivity wherever people live, work and travel, which very much includes rural areas. Superfast broadband is now available to 95% of UK premises, and roll-out will continue to cover the majority of remaining premises. By 2020, the universal service obligation will give everyone the legal right to high-speed broadband at 10 megabits per second or faster.

[Trudy Harrison]

I thank the Minister for her response, but around 33% of my rural constituency of Copeland is still not covered by fast internet, which is holding back our villages and farm businesses. What can be done, as soon as possible, to help those businesses and communities?

[Margot James]

We are doing a great deal to help businesses and people in rural areas. My hon. Friend might like to campaign for greater awareness of the access that people in her constituency have to the internet, because it is now at 93%. As in many other constituencies, however, people are not taking that up, and I urge those who live in rural areas, where the access is there, to take it up.

[Victoria Prentis]

Last week, I held a meeting of larger employers in my constituency, and it became clear that one thing they feel is holding them back is the lack of a mobile signal between junctions 10 and 11 of the M40. Will the Minister work with me to improve that?

[Margot James]

I thank my hon. Friend for raising that problem about the M40, which I experience regularly on my way to my constituency of Stourbridge. Current coverage on UK motorways is 97% for telephone calls, but that is no comfort to those travelling on the stretch she has identified. I will work with her to bring about a solution as swiftly as possible.

[Chris Bryant (Rhondda) (Lab)]

May I urge the Minister to be much more sceptical about the figures given out by mobile phone companies and operators? In all honesty, looking at their maps on the ground, they have nowhere near the figures of which they boast.

[Margot James]

The Ofcom “Connected Nations” report contains new measures that reflect truer consumer standards, and it is opening the new 700 MHz spectrum band, which will be suitable for wider area coverage. I accept the hon. Gentleman’s point, and we are working to get better consumer measures on those matters.

[Jim Shannon (Strangford) (DUP)]

Although there has been an improvement over the years, 63,000 homes and offices in Northern Ireland—8% of properties—remain unable to sign up for broadband speeds. What discussions have taken place with the Department of Enterprise, Trade and Investment in Northern Ireland to ensure a roll-out of the moneys agreed for rural areas through the confidence and supply agreement?

[Margot James]

Northern Ireland’s outdoor geographic coverage is better than the UK average, but I recognise that indoor coverage is poor compared with the rest of the country. The new code reforms will help, alongside our desire to extend geographic mobile coverage to 95% of the entire United Kingdom.

[Sir Desmond Swayne (New Forest West) (Con)]

Are 10 megabits enough?

[Margot James]

My right hon. Friend refers to the universal service obligation that will guarantee 10 megabits per second. According to Ofcom, that is enough for multiple usage in the home, and for downloading film and video.

[David Hanson (Delyn) (Lab)]

Villages such as Lixwm, Ysceifiog and Bagillt in rural areas of my constituency are getting increasingly frustrated with the performance of Openreach in delivering broadband. Two years ago, the Government pledged through Ofcom to deconstruct Openreach from BT, but what progress has been made on that objective?

[Margot James]

I encourage the right hon. Gentleman to remember that BT and Openreach are no longer a monopoly. I draw his attention to today’s announcement by TalkTalk that it is cutting its dividend and connecting more than 3 million homes to full fibre, building Britain’s full fibre future.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

4. What steps his Department is taking to improve access to the mobile web.

--- Later in debate ---

[Nick Smith (Blaenau Gwent) (Lab)]

7. What steps he plans to take to maintain the level of funding for the film industry after the UK leaves the EU.

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

The UK film industry is worth £4 billion a year to the UK economy. The Government are committed to supporting the industry and are consulting stakeholders to ensure that the sector continues to thrive after we leave the EU. The Prime Minister has made it clear that, where possible, we will continue to participate in EU programmes where there is mutual benefit to the UK and the EU, as there is in the case of Creative Europe, for example.

[Nick Smith]

Blaenau Gwent’s stunning scenery makes us an ideal location for UK films and television series, and the Creative Europe programme has supported the cinema distribution of more than 100 UK films in European markets in recent years. Will the Government ensure our continued participation in Creative Europe after we leave the EU, because it has been such a success?

[Margot James]

I agree that Creative Europe has been a success and that the hon. Gentleman’s constituency of Blaenau Gwent is a wonderful location, which has been used for many broadcasting opportunities. We are very committed to our role in Creative Europe. We recognise its value, and the Treasury has committed to honouring all applications, even those that are likely to require funding post-Brexit. We can be optimistic, although of course during negotiations there can be no guarantees.

[Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)]

Amid this tour of the UK, Derbyshire and Dorset, may I remind the Minister that the county of Sutherland in my vast and remote constituency offers huge potential for the UK film industry? We have some of the most majestic scenery and Dunrobin castle. What “Downton Abbey” did for Highclere, a new show could do for Dunrobin castle.

[Margot James]

The hon. Gentleman makes a very good case for Dunrobin castle, and I am sure he will be able to make the most of that as he lobbies for broadcasters to beat a trail to his constituency.

[Mr Speaker]

A Cook’s tour of the United Kingdom awaits the Minister. I am sure that she looks forward to it with eager anticipation and, I hope, bated breath.

--- Later in debate ---

[Martin Whitfield (East Lothian) (Lab)]

11. What steps his Department is taking to improve digital infrastructure.

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

£1.7 billion of public funding has been invested to deliver superfast broadband across the UK, and a further £1.1 billion to support the next generation of digital infrastructure, including 5G test beds and trials and a fibre infrastructure challenge fund. We have also reformed mobile planning laws in England and reformed the UK electronic communications code, removing barriers to deploying infrastructure.

[Martin Whitfield]

Given the Government’s commitment to deal directly with local authorities in Scotland in the near future on digital infrastructure, would the Minister agree to meet me, the local authority and, more importantly, disruptive local providers who may be able to give answers to some of the problems that we face?

[Margot James]

We do need to reduce obstacles and costs in the commercial deployment of digital infrastructure. That is what our reforms to the code were about. The Scottish Government have introduced the first stage of their planning reforms. I hope that they can build on that and introduce reforms for their designated areas, albeit they have fallen behind Wales and England and indeed Northern Ireland. I agree to meet the hon. Gentleman and his local authorities.

--- Later in debate ---

[Liz McInnes (Heywood and Middleton) (Lab)]

13. What steps his Department is taking to promote equal pay for women in television, film and radio.

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

The Government are making great strides towards ending the gender pay gap in broadcasting and in the rest of the economy. The new legal requirement for companies above a certain size to publish their gender pay gap details reinforces the requirement by our former Secretary of State for the BBC to publish the salary details of those earning more than £150,000 a year. I hope the hon. Lady agrees that that has been very revealing.

[Liz McInnes]

I thank the Minister for her response, but it is clear that pay in the BBC has not been managed properly. There is too much individual pay bargaining without any clear guidelines or justification. It is a system that has been advantageous to men at the expense of women. What will the Minister do to ensure that there is transparency and fairness in the future?

[Margot James]

I strongly agree with the hon. Lady’s comments, but I draw her attention to the fact that there is an independent regulator, the Equality and Human Rights Commission. I understand that it has already approached the BBC following the many concerns raised by journalists and broadcasters in the corporation. We rely on the BBC to set a lead in this regard. I hope very much that the EHRC will call it to account, and that real and lasting change will be the result.

[Mr Virendra Sharma (Ealing, Southall) (Lab)]

15. What assessment he has made of the effect of the UK leaving the EU on the recruitment and retention of skilled workers in the computer games industry.

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

The games industry makes a crucial economic and cultural contribution to the UK’s games market, which in 2016 was the fifth largest in the world. We are committed to supporting the video games industry so that it can continue to recruit and retain top talent, both from the UK and internationally. We are working closely with the sector to understand the impacts on and opportunities for it as we prepare to leave the EU.

[Mr Sharma]

What representations has the Minister made to the Home Office about the effect on the UK tech sector of the tightening of the tier 2 visa regulations?

[Margot James]

I can reassure the hon. Gentleman. We have asked the independent Migration Advisory Committee to advise on the economic and social impacts of our exit from the EU. We are also speaking to the sector and its key trade bodies, such as Ukie and TIGA, as well as individual businesses such as Ubisoft and CE Europe, to ensure that top talent continues to be available to the sector.

[Michael Fabricant (Lichfield) (Con)]

16. What recent discussions he has had with Channel 4 on its potential relocation outside London; and if he will make a statement.

Thank you for reaching me.

--- Later in debate ---

[Mrs Sheryll Murray (South East Cornwall) (Con)]

T2. My cup really doth runneth over today: I have a topical question as well. I welcome the progress the Government are making on superfast broadband, but can my hon. Friend the Minister assure me that the remaining 17% of premises in my constituency that do not have access to fibre broadband will have it as soon as possible?

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

We are all very happy for my hon. Friend.

Progress has continued to bring superfast broadband to Cornwall: access coverage is now 91%. A further 3% of premises in Cornwall will be covered by December 2019 through the current broadband contract between Cornwall Council and BT. I also draw my hon. Friend’s attention to the rights of her constituents under the universal service obligation.

[Kevin Brennan (Cardiff West) (Lab)]

rose—

Proposal for Designation of Age-verification Regulator

Margot James Excerpts

Thursday 1st February 2018 General Committees

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

I beg to move,

That the Committee has considered the Proposal for Designation of Age-verification Regulator.

It is a pleasure to serve under your chairmanship, Mr Sharma. The Digital Economy Act 2017 introduced a requirement for commercial providers of online pornography to have robust age-verification controls in place to prevent children and young people under the age of 18 from accessing pornographic material. Section 16 of the Act states that the Secretary of State may designate by notice the age-verification regulator and may specify which functions under the Act the age-verification regulator should hold. The debate will focus on two issues. I am seeking Parliament’s approval to designate the British Board of Film Classification as the age-verification regulator and approval for the BBFC to hold in this role specific functions under the Act.

[Sir Greg Knight (East Yorkshire) (Con)]

For the purpose of this measure, where is pornography defined? For example, would the measure prevent a student from downloading a film, say, of “Salome” or “Lady Chatterley’s Lover”?

[Margot James]

The measure before us today deals exclusively with the designation of the BBFC as age-verification regulator and the powers that it will enjoy by exercising that function. It does not deal with the definition of pornography. Although the measure contains a definition within it, it does not deal with that matter. I can come back to that later if my right hon. Friend requires it.

Before considering the specific points related to the debate, I remind the Committee why we introduced the requirement. In the offline world there are strict rules to prevent children accessing adult content, but the same is not true online. A large amount of pornography is available on the internet in the UK, often for free, with little or no protection to ensure that those accessing it are old enough to do so. That is changing the way in which young people understand healthy relationships, sex and consent.

A 2016 report commissioned by the Children’s Commissioner and the National Society for the Prevention of Cruelty to Children makes this clear. More than half of the children sampled had been exposed to online pornography by the age of 15. Nearly half of boys thought pornography was realistic and just under half wished to emulate what they had seen. The introduction of a requirement for age-verification controls is a necessary step towards tackling the issues and contributes to our commitment to making the United Kingdom the safest place in the world to be online.

The BBFC is best placed to carry out the important role of age-verification regulator because it has unparalleled expertise in the area. The BBFC has been classifying films for cinema release since 1912 and video content since 1984. It has established a trusted reputation for making difficult editorial judgments and giving consumers, particularly parents and children, clear information about age-appropriate content. Importantly, the BBFC is currently responsible for classifying adult material for sale online, including judging when content should be rated 18 years and therefore be available for sale only in licensed sex shops. Moreover, the BBFC understands how new technology is changing the way in which people access content. It has been crucial to the development and implementation of the filtering of adult content on mobile networks. It is clear that the BBFC has the breadth of experience and expertise required to undertake the role of age-verification regulator.

In this role, the BBFC will be responsible for identifying non-compliant websites and giving notice to the appropriate persons. Draft regulations setting out the circumstances in which the regulator should consider that pornography has been made available on a commercial basis were published alongside the Act. We expect to lay an updated draft before the House shortly.

The particulars of the proposed designation set out the powers that the BBFC will be designated to carry out the role, namely: the power to request information that it requires to exercise its powers; the power to issue civil proceedings against non-compliant persons; the power to give notice to payment service providers or ancillary service providers to non-compliant persons; the power to direct internet service providers to block access to non-compliant material; and the freedom to exercise its powers proportionately, and in a manner that prioritises child safety online.

In addition, there is an obligation on the BBFC to issue guidance on the age-verification arrangements that it will treat as compliant, and the approach that it will take to ancillary service providers. Following designation, that guidance will be laid before the House for approval. We are confident that, taken together, this approach gives the BBFC a range of powers that will provide a real incentive for pornography providers to comply with the age-verification requirement under the Digital Economy Act.

I am pleased to report that the BBFC has engaged openly and constructively with the Department for Digital, Culture, Media and Sport from the beginning of the process, and has made extensive preparations for the role, including developing the technical expertise and processes that will be necessary. It has undertaken engagement with relevant organisations, including representatives of the adult industry and the age-verification industry. In particular, it has established a charity working group to ensure that its approach is in line with child online safety goals.

In conclusion, we believe that the BBFC has the right attributes and experience to carry out the role of age-verification regulator. It is a highly respected organisation that has unparalleled expertise in classifying content. I have confidence in recommending it to the House as age-verification regulator for online pornography.

--- Later in debate ---

[Margot James]

I thank hon. Members for their contributions, and I thank the hon. Member for Argyll and Bute and the right hon. Member for Birmingham, Hodge Hill for their warm welcome. I, too, look forward to many more hours of debating with them and their colleagues.

With regard to the app of my right hon. Friend the Secretary of State, I am afraid that I have been too busy working this morning to have been on it. Since it has just been launched, I have no doubt that he will have time to refine it in forthcoming days.

[Sir Nicholas Soames]

Will the Minister give way?

[Margot James]

Just before I give way, I will deal with the substantive point raised by the right hon. Member for Birmingham, Hodge Hill about whether such apps will come under the purview of the regulation. Hon. Members should bear in mind the important point that the regulation seeks to regulate age verification with regard to pornography that is made available for commercial use.

[Sir Nicholas Soames]

I want to help the Minister in that I have been on the app and, contrary to what the right hon. Gentleman said, it is truly magnificent. It is a road down which we must all go.

--- Later in debate ---

[Margot James]

I thank my right hon. Friend for confirming what I suspected. My right hon. Friend the Secretary of State is extremely able in the digital world, and I am sure that what he has put out is of very high quality.

I wish to respond to some of the criticisms and questions from the debate. First and foremost, over the choice of the BBFC—

[Liam Byrne]

Tom Bateman, a political editor with BBC politics, tells us he denied the app access to his photos and yet it uploaded pictures anyway, so it is not clear to me how the Secretary of State has been able to produce this app in a way that is violating the country’s privacy laws.

[The Chair]

Order. If we could keep to the legislation—

[Margot James]

Thank you, Mr Sharma, I shall certainly keep to the point of the debate.

The right hon. Member for Birmingham, Hodge Hill asked earlier about the choice of the BBFC, whether it is best placed to carry out this role and whether we were adding to the plethora of agencies to which he referred. Not that this is the subject of the debate, but the roles of Ofcom and the Information Commissioner are distinct and clear. His criticism that we are adding yet another I fear is misplaced, because the BBFC has been in existence for 100 years. We are not adding anything. We are merely going to the organisation with the most expertise to do the job required. It has been responsible for classifying adult material for sale offline for many years, it has a trusted reputation in defining age-appropriate content, and it has played a key role in the development and implementation of the filtering of adult content on mobile networks. Indeed, its core mission is child protection.

The right hon. Gentleman also asked about resources, as did I when I took on this brief—it is an important question. One of the benefits is that we are adding a responsibility to an organisation that is already well placed to inherit the task. We are enabling a budget of just under £1 million for the set-up costs of the BBFC engaging in the age verification task. During the first year it will be given approximately £800,000 in addition for its running costs. This is a new policy and we will certainly keep it under review, and that goes for the resources we allocate it as well as the progress of the implementation.

On powers and responsibilities, the regulator is required to publish guidance on the age verification arrangements that it will treat as compliant. Hon. Members will be able to see that guidance shortly. The right hon. Gentleman asked about specific social media powers, but with the powers across all online pornographic content the BBFC will be able to issue civil proceedings against non-compliant persons. Importantly, it will be able to give notice to payment service providers. The BBFC has already had discussions with Visa and Mastercard, which were very concerned for their brands not to be associated with any non-compliant sites. That is a good sign. Finally, the BBFC is able to direct internet service providers wherever they are in the world to block access to non-compliant websites. Those powers are strong but, as with resources, we will keep the new legislation under review.

I thank the members of the Committee for their contributions to this important debate. Age verification for online pornography is an important new regime. I agree with the hon. Member for Argyll and Bute that it is one aspect of what we need to do about education and child safety online, but it is nevertheless important. As has been clearly set out today, the new policy is complex and requires expertise and judgment. The BBFC’s track record in classifying films and content offline demonstrates that it has the attributes required to undertake the work online. It is clearly best placed to take on the role, and the powers that we propose to give it will allow it to carry out the role effectively and, in doing so, to make the internet a safer place for children. I thank the Committee for its time this morning.

Question put and agreed to.

Ethics and Artificial Intelligence

Margot James Excerpts

Wednesday 17th January 2018 Westminster Hall

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

It is a pleasure to serve under your chairmanship, Dame Cheryl. I congratulate the hon. Member for East Dunbartonshire (Jo Swinson) on securing this important debate and on her fascinating and well-argued speech. As she kindly pointed out, I am new to the position of Minister for digital and creative industries. She will know from her ministerial experience that there is a great deal to absorb in any new brief, and I thank her for this opportunity to get involved and absorbed in the ethical considerations of artificial intelligence so early in my new role.

We understand the disruptive potential of transformative technologies, and we stand ready for the adoption of AI, which is going on around us and is important to the future of our industrial strategy. In their review of AI and the industrial strategy, Dame Wendy Hall and Jérôme Pesenti identified a range of opportunities for the UK to build and grow its AI capacity. The forthcoming AI sector deal will take forward their key recommendations about skills and data, and a wider AI grand challenge will keep the UK at the forefront of AI technology and the wider data revolution. Those ambitions will be underpinned by a new Government office for AI. We are building the capacity to address the issues that accompany these technological advancements: issues of trust, ethics and governance; effective take-up by business and consumers; and the transition of skills and labour requirements.

Regarding trust, AI already delivers a wide range of benefits, from healthcare to logistics, biodiversity and business, but we are fully aware that AI brings new challenges, as the hon. Lady mentioned, in privacy, accountability and transparency as well as the important issue of bias, on which she shared a number of concerning examples with the House.

The uses of data in AI and machine learning are developing in valuable but potentially unsettling ways, because of the pace of adoption, as the hon. Lady outlined. We have different concerns and tolerances about trust and fairness depending on the application of AI, varying, for instance, between retail, finance and medicine. We will need to consider specific answers to those challenges in the different sectors if we are to foster the necessary level of trust. Confidence and trust are essential to driving adoption and innovation.

We must ensure that these new technologies work for the benefit of everyone: citizens, businesses and wider society. We are therefore integrating strong privacy protections and accountability into how automated decisions affect users. A strong, effective regulatory regime is therefore vital. In the UK we already benefit from the Information Commissioner’s Office, a well-respected independent body tasked with protecting personal data. Important decisions on everything from autonomous cars to medical diagnosis and decisions on finance and sentencing—and indeed applications to defence—cannot be delegated solely to algorithms. Human judgment and oversight remain essential.

[Lee Rowley]

I completely accept the principle that strong regulation is required for data, and it is important that organisations such as the ICO lead that—even if I have some concerns about some of what has come out on the general data protection regulation in recent months. Is it not the responsibility of all of us here, the ICO, Ministers and wider civic society to start discussing privacy more over the long term? We have probably got to have a cultural discussion about privacy, because we have ownership of data, but to accrue the benefits that come from some automation and artificial intelligence we must also be willing to give over some elements of that data for the wider good.

[Margot James]

My hon. Friend touches on some important considerations. There has been a debate in healthcare on how much should be private and how much should be anonymised and shared for the general good, as he outlines. I agree that that discussion needs to involve citizens, business, policy makers and technology specialists.

We will introduce a digital charter, which will underpin the policies and actions needed to drive innovation and growth while making the UK the safest and fairest place to be online. A key pillar of the charter will be the centre for data ethics and innovation, which will look ahead to advise Government and regulators on the best means of stewarding ethical, safe and innovative uses of AI and all data, not just personal data. It will be for the chair of the centre to decide how they should engage with their stakeholders and build a wider discussion, as my hon. Friend suggested is necessary. We expect that they will want to engage with academia, industry, civil society and indeed the wider public to build the future frameworks in which AI technology can thrive and innovate safely.

We may find the solutions to many AI challenges in particular sectors by making sure that, with the right tools, application of the existing rules can keep up, rather than requiring completely new rules just for AI. We all need to identify and understand the ethical and governance challenges posed by uses of such a new data source and decision-making process, now and in the future. We must then determine how best to identify appropriate rules, establish new norms and evolve policy and regulations.

When it comes to AI take-up and adoption, we need senior decision makers in business and the public sector first to understand and then discuss the opportunities and implications of AI. We want to see high-skill, well-paid jobs created, but we also want the benefits of AI, as a group of new general-purpose technologies, to be felt across the whole economy and by citizens in their private lives. The Government are therefore working closely with industry towards that end. As I said earlier, we will establish a new AI council to act as a leadership body and, in partnership with Government, champion adoption across the whole economy. Further support will come from Tech Nation as it establishes a national network of hubs to support such growth.

A highly skilled and diverse workforce is critical to growing AI in the UK. We therefore support the tech talent charter initiative to gain commitment to greater workforce diversity. The hon. Lady explained well in her speech why diversity in the tech workforce is important to the ethical considerations we are debating. As we expand our base of world-class AI experts by investing in 200 new AI PhDs and AI fellowships through the Alan Turing Institute, we will still need to attract the best and brightest people from around the world, so we have doubled the amount of exceptional talent visas to 2,000. I will take the point about the need for diversity when it comes to reviewing such applications. All of that will ensure that UK businesses have a workforce ready to shape the coming opportunities.

With regard to transition, we will see strong adaptation in our labour markets, where our aim should be lifelong learning opportunities to help people adapt to the changing pace of technology, which will bring new jobs and productivity gains. We must hope that those will increase employment. We know that some jobs may be displaced, and often for good reasons: dangerous, repetitive or tedious parts of work can now be carried out more quickly, accurately and safely by machines. None the less, human judgment and creativity will still be required to design and manage them.

[Luke Graham]

On employment, may I impress on the Minister that in that disruption, the Government should be there to help some of those workers pushed out of employment to retrain and find a new place and role in the economy, keeping up with the pace of technology as it develops?

[Margot James]

I heartily agree with my hon. Friend. He will be pleased to know that the Department for Business, Energy and Industrial Strategy—my former Department—is working closely with Matthew Taylor to consult on all of his recommendations. The Secretary of State has taken personal responsibility for improving the quality of work. Work should be good and rewarding.

A study from last year suggests that digital technologies including AI can create a net total of 80,000 new jobs annually for a country such as the UK. We want people to be able to capitalise on those opportunities, as my hon. Friend suggested. We already have a resilient and diverse labour market, which has adapted well to automation, creating more, higher paying jobs at low risk of automation. However, as the workplace continues to change, people must be equipped to adapt to it easily. Many roles, rather being directly replaced, will evolve to incorporate new technologies.

[Jo Swinson]

The Minister has mentioned the centre for data ethics. Can she update us on when it is likely to be up and running, what the timetable is for recruiting the chair and so on? It would be helpful to know when we can expect that.

[Margot James]

We want to proceed at pace, because it is an important part of our programme of dealing with the ethics of this issue. We plan to consult on the plans for a permanent centre in the next few months, and I will welcome the hon. Lady’s input.

Undeniably, substantial changes lie ahead. Therefore, in terms of enabling people to reskill and take advantage of the changes and opportunities in the workplace, a national retraining scheme will help people. We also have plans to upskill 8,000 computer science teachers and work with industry to set up a new national centre for computing education, with a brief to encourage more girls to take advantage of the new technologies in their learning.

Substantial changes lie ahead and, as we push these new technologies, we will also strive to keep people and businesses sufficiently skilled, adaptable and assured. The measures are in place, and I have taken heart from the hon. Lady’s speech about the importance of these ethical considerations. I assure her that they will be uppermost in our minds as we develop policy.

Question put and agreed to.

Mobile Phone Contracts

Margot James Excerpts

Tuesday 16th January 2018 Westminster Hall

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I congratulate the hon. Member for North Ayrshire and Arran (Patricia Gibson) on securing the debate to highlight this important issue and on her passionate speech, which I listened to with great interest.

I am delighted to have responsibility for championing the interests of digital consumers as part of my new role at the Department for Digital, Culture, Media and Sport as the Minister for digital and creative industries. In my previous role, I had responsibility for small business and consumers, which included retail energy markets and competition law, so I have some experience of the type of issues consumers in this market face, as well as of some of the potential solutions.

The hon. Lady mentioned the Citizens Advice research in her speech, and I pay tribute to Citizens Advice, with whom I worked a great deal in my former job. It does a marvellous job and has been pursuing this issue with the Government, Ofcom and the mobile phone operators over the last 12 months. I have reviewed its research with interest.

Ofcom estimates that about 1 million people continue to pay the full monthly charge after the end of their contract rather than switching to a cheaper deal and that those people could collectively be overpaying by £130 million per year. That is far too great a scale of consumer detriment for us to live with. It represents too many people paying more than they need to, by continuing to pay for the cost of a mobile handset when they should no longer be doing so—essentially after they have paid for it. Many of those people are more vulnerable consumers, including older people—the hon. Lady referred to the difference between the percentage of older people who were continuing to pay for their handset after it had been paid off—and those in lower income segments. Some people may just be very busy. The Government recognise that action is needed.

Ofcom estimates that the issue affects a minority of customers with a mobile phone contract, approximately 6%. In percentage terms, it is a small minority, but it amounts to about 1 million people, which is no small number. On the plus side, we have a highly competitive market in telecoms, which is good for consumers, and we should recognise that fact, as well as working tirelessly to address those areas that work less well.

[Carol Monaghan (Glasgow North West) (SNP)]

There is a highly competitive market, but for many of the vulnerable consumers we are talking about—many of whom are elderly or possibly without access to the internet—the landscape is extremely confusing. The onus should be on the phone companies to help those customers get the best deal.

[Margot James]

I recognise what the hon. Lady says and I quite agree. I found the same thing in respect of the energy market; I am well attuned to that fact. For the sake of completeness, I wanted to mention some of the positive things that are happening, which I accept may be less accessible to some older consumers.

The Digital Economy Act 2017 included several measures that are helping Ofcom to empower and protect consumers. Of particular relevance is that the legislation included help for Ofcom to set switching rules for communications services. As a result, Ofcom has recently announced the implementation of a new text-to-switch process for all mobile customers. Consumers will be able to send a free text to their current provider to request a switching code that they give to their new provider for a timely and seamless switch. The change will make switching much quicker and easier for consumers and will go some way towards addressing the issue that the hon. Member for Glasgow North West (Carol Monaghan) raised. The measure must come into effect no later than July next year.

We recognise that we may well need to go further. As the hon. Member for North Ayrshire and Arran said, in our manifesto we set out our commitment to make billing for telecoms customers fairer and easier to understand. In my opinion, that means it must be more transparent. That includes making it clearer when a customer has paid off the price of their handset and is in a position to switch to a cheaper deal, saving them money. She emphasised how important it is for the Government to work with Ofcom, mobile providers and other stakeholders, such as Citizens Advice, to resolve the issue in a way that helps people save money. I assure her that my Department has already been working with all of those parties, and I am committed to continuing that engagement.

I have not come to any firm conclusions about the best solution to this issue. I will listen to the views of all stakeholders—in particular, to those expressed by the hon. Lady in this debate—and we will work in partnership with Ofcom and the mobile providers to get a fairer system with lower prices. I am clear that any solution we develop with Ofcom and the mobile providers must stop people languishing on their mobile phone contracts after their contract period has ended. We want the savings that are their due to be returned to them. Importantly, any solution needs to address the needs of all consumers—particularly those who are older and most vulnerable.

[Patricia Gibson]

Does the Minister agree that leaving this in the hands of the mobile providers has not worked so far? Action has to be taken to force or compel the mobile phone providers, or otherwise get them to change their behaviour.

--- Later in debate ---

[Margot James]

Although I have not come to a settled view on the matter yet, I agree with the hon. Lady that what has gone on so far—there has been an over-reliance on the mobile phone providers putting their house in order—has not worked to my satisfaction, given that 1 million people are still overpaying.

I am aware that some stakeholders would like to see the end of bundled mobile phone contracts, and want all contracts to be split, with the cost of the handset split out from the cost of services. The pricing of split contracts can be more transparent for consumers than bundled contracts, although split contracts are not without consumer issues. At the moment, providers can make a commercial decision to offer split or bundled contracts, or a choice. A number of mobile phone providers now offer only split contracts and others, such as Tesco Mobile, continue to offer both split and bundled contracts. Other groups, such as EE, Vodafone and Three, offer only bundled contracts. As I said earlier, it is a highly competitive market, in which consumers have a wide degree of choice, including in relation to whether to opt for a bundled or a split contract. However, I accept that when people who are not knowledgeable about the complexities of the market are dealing with a household name that offers only a bundled contract, that is not a great deal of help.

Consumers may choose bundled contracts because they continue to offer good value for money for many consumers. Ofcom research from last March found that such contracts are particularly good value for mobile users with medium to high usage, but such deals can obscure overcharging, as the hon. Lady so ably highlighted. We are therefore prepared to intervene if we deem that to be the only way to resolve this issue. I am committed to preventing people from paying too much by remaining on the same bundled contract after the end of the contract period. No one should continue to pay for a product that they have already paid off. Ofcom, our independent regulator, is continuing to monitor this issue closely. I expect to see movement to address this issue from the mobile operators.

I remind hon. Members that this year the Government will publish a consumer Green Paper, which will explore further ways we can help to protect, support and empower consumers, including those in the mobile communications market. I very much agree with the hon. Lady’s remark before we suspended for all the votes that mobile telephony has become a crucial utility that most people simply cannot do without.

I reiterate my thanks to the hon. Lady for securing this debate, and I thank all hon. Members who contributed to it. I will leave her a few minutes, if she requires them, to make a few closing remarks. Before that, I reaffirm my commitment to work with Ofcom, the mobile providers and organisations such as Citizens Advice to address this issue and broader issues in the telecoms market that consumers face.

[Mr Philip Hollobone (in the Chair)]

Order. I am afraid it is not in the Minister’s gift to offer the sponsor of the debate a second go during a half-hour debate.

[Margot James]

I apologise for that, Mr Hollobone.

[Mr Philip Hollobone (in the Chair)]

Apology accepted.

Question put and agreed to.