Data Protection Bill [Lords]

Debate between Mike Penning and Margot James

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 9th May 2018 Commons Chamber

[Margot James]

I thank my hon. Friend for his comments. He and other colleagues across the House made these arguments, and given that such organisations are often very small and process only small amounts of personal data, we have decided to take parish councils out of the definition of “public authorities” for data protection purposes. Their status in respect of other legislation, including the Freedom of Information Act, is unaffected, however.

Similar arguments have been advanced in respect of primary care providers, but although I have sympathy with amendments 18 and 19, primary care providers are different from parish councils in that they process sizeable quantities of sensitive health data, whether that be an individual’s mental health status, the fact that they are pregnant, or details of their prescription for a terminal illness. All of these matters are highly personal, and in the world of health, data protection is rightly paramount.

The Dean Street Express case in 2015 illustrates the potential harm that even a single data breach can cause. In that incident, the names and email addresses of almost 800 people, many living with HIV, were disclosed to other recipients. It does not seem unreasonable that bodies who process that kind of data should have a single point of contact on data protection matters.

Government amendments 139 and 140 relate to legal professional privilege. We recognise the importance of protecting legal professional privilege and that is why in the Bill we have replicated the existing measures and exemptions for legal professional privilege found in the Data Protection Act 1998, which have worked well for many years.

Amendments 10 and 11 seek to widen the legal professional privilege exemptions found in schedules 2 and 11. They offer some thoughtful changes that are intended to recognise the broader range of material covered by a lawyer’s ethical duty of confidentiality. We agree that the Bill could be clearer, and have tabled amendments 139 and 140 in response.

[Sir Mike Penning (Hemel Hempstead) (Con)]

It is interesting that we are making lots of exemptions for the Government, parish councils, lawyers and so on. I spoke to some lawyers this morning, and they were not convinced by the measures either. However, small businesses seem to be disproportionately affected, and there is real confusion out there. As I say, a lot of work has been done to protect the Government, parish councils and lawyers, but what about the little people—the people who make this country grow? There is even confusion in the Information Commissioner’s Office, which gave the wrong advice in briefings here to MPs’ staff only the other week. What are we going to do to protect the small people? They think that they are doing the right thing, but they have probably been ill advised. They are spending a lot of money trying to get things right, but there is real confusion out there.

[Margot James]

My right hon. Friend raises several important points. As for the effect on small businesses, he will be reassured to learn that the issues with the processing of highly personal data that I was discussing do not apply to the majority of SMEs. They will not have to appoint a data protection officer, so that is one comfort.

As for training and guidance, I am sorry that colleagues and their research staff attended courses that were put together before the Bill was even in Committee, and thus did not take numerous amendments into account—not least the amendment clarifying the rights of Members of Parliament and other elected individuals. I apologise for that confusion.

I draw businesses’ attention to the excellent ICO website, which contains good sources of guidance for SMEs, including frequently asked questions. The ICO also provides an advice line for any follow-up questions on subjects that businesses might not be clear about. Ultimately, there is a need for better data protection, and that is not just what is set out in the GDPR. Dreadful examples, such as the case of Facebook and Cambridge Analytica, have demonstrated the need for more rigorous data rights and for greater security of data.

[Sir Mike Penning]

The Minister is being ever so generous in giving way not just to me, but to Members from across the House, and I thank her. Returning to the parliamentary stuff—we are only a small part of all this—some of the staff present at the briefing I mentioned left in tears, and I know that for a fact, because a member of my staff was there. Believe it or not, even though the ICO knew that the briefing was completely flawed, it has today issued certificates of attendance saying that it was the right thing for staff to have done.

More important, however, are the SMEs. Small businesses have approached me today to tell me that they have been told to delete all their data unless they get permission from the relevant people. Companies that did work for people three, four or five years ago—even last year—must get permission to hold their addresses so that they can fulfil, for example, warranty agreements. Other companies are getting completely different advice, and the lawyers are getting different advice. There seems to be a rush to protect Government agencies, local government, parish councils and lawyers, but not enough is being done to protect the small people of this country—the people who account for so much of our money.

[Margot James]

I thank my right hon. Friend for his points. I want to reassure the small businesses that he mentions. I sympathise with businesses that are getting conflicting advice, and with those that are approached by firms of consultants who appear to be exaggerating the scale of the task of complying with the legislation. I am afraid that that always happens when there is change; people think that they can exaggerate the impact and the implications of a change and—who knows?—perhaps they will be remunerated for helping businesses to comply.

I also want to reassure my right hon. Friend about the specific case that he mentioned, in which companies were being advised that they needed to delete all the data for which they did not have consent. I want to reassure him that the vast majority of businesses will not have to delete the personal data that they hold. If they have gained the personal data lawfully, there are five, if not six, lawful bases on which they can process that personal data, of which consent is only one. I draw his attention particularly to legitimate interests, which is a lawful basis for processing data. For example, if a small firm has been supplying a much-needed service to people for a number of years, it is in the pursuit of its legitimate interests to communicate with its database of customers or new prospects, and it does not need to have consent. I would advise people not to delete their data without very careful consideration, or without consultation with the ICO website in particular.

[Margot James]

I will give way to my right hon. Friend in a second. I want to respond to my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) on the alleged discrimination involved in our taking steps to protect lawyers, parliamentarians, local councillors and so on but not to protect small businesses. The reason is that small businesses are less affected, in the sense that most of them do not process huge quantities of personal data. They therefore come under the purview of the ICO to a lesser extent, and enforcement is less likely to focus on organisations that do not process highly personal data. Those organisations do not need to appoint a data protection officer. I hope that I have gone some way towards allaying my right hon. Friend’s—

[Sir Mike Penning]

rose—

[Margot James]

I will come back to my right hon. Friend in a moment, but I did say that I would give way to my right hon. Friend the Member for Broxtowe (Anna Soubry).

[Margot James]

I sympathise with the points that my right hon. Friend has raised. In fact, we have secured almost £500,000 to launch an information campaign to bolster what the Information Commissioner’s Office is already doing for small businesses. I also draw her attention to the need for this legislation, and to the need for businesses and all of us in public life to respect people’s data rights. The landscape has changed. We now live in a digital world, and there is so much abuse of people’s privacy and data that I must bring her attention back to the need for the Bill. Of course she is right, however, to say that people need to be properly informed, and that is what the ICO is doing and what the Government campaign that we are about to launch will also do.

[Sir Mike Penning]

What the Minister said at the Dispatch Box a moment ago was also news to me. I have been campaigning and pushing on this for months—I spoke to the Secretary of State over the bank holiday weekend—and I was going to vote against the Bill this evening. Yes, we need data protection, but we do not want to destroy or frighten our businesses in the process. However, I take my hon. Friend at her word, and I will vote for the legislation this evening.

[Margot James]

I quite agree. In fact, both the Secretary of State and I were small business owners before entering this place, so I feel what my right hon. Friend says very deeply. I must commend my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) on the excellent advice that his office has put together on what it will be doing in this respect. For the benefit of my staff, I have set out exactly what my office will be doing to comply with the legislation. If my right hon. Friend has any concerns about his own situation—

--- Later in debate ---

[Sir Mike Penning]

I am not worried about us; I am worried about small businesses.

[Margot James]

In that case, I will proceed no further down that path. I am glad that I have been able to reassure my right hon. Friend and thank him for raising those important points.

Employment Tribunals

Debate between Mike Penning and Margot James

Wednesday 13th September 2017 Commons Chamber

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Margot James)]

I congratulate my hon. Friend the Member for Hemel Hempstead (Mike Penning) on securing today’s important debate, and I extend my heartfelt condolences to Mrs Hardie for the loss of her husband.

I am aware of the Law Society Gazette article on my hon. Friend’s constituency case relating to unfair dismissal and how the judge treated the matter of discretion. Although I cannot comment on the detail, I am very sympathetic to the position in which Mrs Hardie finds herself, and, of course, I am very happy to meet her with my hon. Friend.

I can confirm that the “just and equitable” test is wider than the “reasonably practicable” test. A tribunal can extend time for bringing a discrimination claim forward where it considers it just and equitable to do so. For unfair dismissal cases, the claimant must demonstrate that it was not reasonably practicable to bring the claim within three months for the tribunals to extend the time and to allow the claim to proceed. Case law has established that demonstrating that it was not reasonably practicable is a more demanding test than establishing that it is just and equitable for the claim to proceed. This is what Parliament has set out in legislation. The time limit in both cases is stipulated in the relevant Act. I am grateful to my hon. Friend for bringing this issue to my attention, because I was not aware of the impact that the difference in wording can have in cases such as that of his constituent.

[Mike Penning]

One of things that was so distressing to Anna was that she was cross-examined about whether she had had conversations with her husband and asked where was the proof. There is no proof that I proposed to my wife. It was a very personal thing between me and her—there is no written evidence about the proposal. To say in a cross-examination that she had no proof that her husband wanted to do this, even though Anna had clearly discussed it with him, is abhorrent. She was cross-examined at a time that was enormously distressing for her.

[Margot James]

Although I said I could not comment on the details of the case, I must say, given what my hon. Friend says, that there are situations in which the law itself is insufficient to guide the behaviour of barristers in their work. I find myself very sympathetic to the concern and horror expressed by my hon. Friend.

[Mike Penning]

Will my hon. Friend give way?

[Margot James]

Yes, I would be delighted. I wanted to refer to the point made by my hon. Friend the Member for Basingstoke (Mrs Miller), but before I do so I will give way to my hon. Friend.

--- Later in debate ---

[Mike Penning]

Can I just say that I have had the honour of kissing the Queen, so I am a right hon. Member? That might give the Minister a bit of time to find the right page. It is sometimes hard to do that; it has happened to me on more than one occasion. It was a great pleasure to have kissed the Queen’s hand.

[Margot James]

I do apologise to my right hon. Friend—and indeed to my right hon. Friend the Member for Basingstoke. Towards the end of the day, one forgets these terms, but they are important.

My right hon. Friend the Member for Basingstoke raised the issue of pregnant women or women who have just given birth and the time limit in respect of bringing cases to employment tribunals. She and I have discussed this in the past, and I am aware of the recommendations of her Select Committee, the Women and Equalities Committee, on this point. I can confirm that we are reviewing whether we need stronger protection against redundancy for pregnant women and women returning from maternity leave. We will consult on options in due course, and we would very much welcome her views during that process.

[Margot James]

I thank my right hon. Friend, who makes a sensible proposal. I hesitate to make too much of a commitment based on one case, no matter how harrowing it is. I think I must first meet Anna, if I may call her by her first name, and my right hon. Friend the Member for Hemel Hempstead. However, I will certainly take the suggestion by my right hon. Friend the Member for Basingstoke into consideration, as we are indeed reviewing the position with regard to pregnant women and women returning from maternity leave.

I have not said much about bringing cases to employment tribunals, but the first step, of course, is for people to refer themselves to the arbitration service ACAS. The Government are committed to encouraging people to resolve their workplace disputes without the stress and cost of an employment tribunal. I reiterate that I am grateful to my right hon. Friend the Member for Hemel Hempstead for bringing this harrowing case to my attention. Although I have had to reserve my position regarding whether to include the situation in which his constituent finds herself—

[Mike Penning]

rose—

[Margot James]

Was that a request for another intervention? Of course I will give way to my right hon. Friend.

[Mike Penning]

I thank the Minister for agreeing to meet my constituent. She has opened a Pandora’s box, because she has quite rightly said that she wants to see other evidence to show that this is not a one-off. I took advice, as she probably saw from the article in the Law Society Gazette, from eminent lawyers, including Kerry Underwood from Underwoods Solicitors, who is a specialist in this area. She will find that not one, not two, but lots and lots of cases like this have been time-barred, when common sense and natural justice might have suggested that they should be allowed to go through.

[Margot James]

In the case that there turns out to be a substantial body of evidence, as my right hon. Friend has indicated, I am sure that it will be very persuasive. I suggest that he invites the relevant Minister from the Ministry of Justice to join our meeting, because responsibility for this matter is shared across two Departments. With that, I conclude my remarks and thank my right hon. Friend again for bringing this matter to the attention of the House.

Question put and agreed to.

Oral Answers to Questions

Debate between Mike Penning and Margot James

Monday 14th October 2013 Commons Chamber

[Mike Penning]

Of course I will meet the hon. Lady, but there is an appeals process, and I suggest her constituent goes through that full process—in case he has not—before we meet, as we do not want jeopardise an appeal in any way. This was a problem we inherited from the previous Administration. Occupational health assessments were set up under Atos in 2008; it was not great, but we are working hard to sort it out.

[Margot James (Stourbridge) (Con)]

6. What assessment he has made of the effectiveness of the benefit cap in encouraging people back to work.