Data Protection Bill [Lords] (Sixth sitting)

Stuart C McDonald Excerpts

Tuesday 20th March 2018 Public Bill Committees

[Liam Byrne]

I am grateful to my hon. Friend the Member for Edinburgh South for keeping me warm and enthused.

The amendment is important. None of us wants to damage the right and power of whistleblowers to bring important information into the public domain, sometimes to the attention of regulators, sometimes to the attention of organisations, such as the Health and Safety Executive, and sometimes to the attention of Members. Over the years, we have put in place a good regime in order to ensure that whistleblowers are afforded protections that allow them to come forward with information that is in the public interest.

The reason we have to consider that now is that data protection legislation is being strengthened by the incorporation of GDPR into British law. However, the risk is that the ambiguities that frame the protection of whistleblowers in the Bill are such that many are concerned that whistleblowers will not be given the right protection against data protection legislation.

The Government recognise that it is important to protect whistleblowers. There is a protection in clause 170 for whistleblowers bringing forward information that is

“justified as being in the public interest.”

The argument put to us by Public Concern at Work and others is that that approach is unlikely to be effective. We are told that there will be a new test in law, which will therefore require guidance from the courts. Until that time, the precise meaning will obviously be a bit moot, and the scope of the situations that the Government seek to protect will remain a little uncertain. That uncertainty and ambiguity will jeopardise an individual who might have something important to bring to the attention of the outside world.

Exceptions to violations in personal data confidentiality were recently considered by the Government in section 58 of the Digital Economy Act 2017, which provided a far more comprehensive list of exceptions. Where there is overlap between the Bill and the Digital Economy Act, it appears that the Act deals much more satisfactorily with whistleblowers.

I remind the Committee that section 58 of the Act says that the offence does not apply to a disclosure

“which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996”.

We therefore have a pretty well established and grounded definition of exceptions. Indeed, it was so well defined and grounded that the Government decided to use that definition in the 2017 Act. It is not clear why the Bill seeks to create alternative definitions and therefore the need for alternative tests and guidance in the courts when we have a definition we can rely on.

The Opposition amendment would return us to what we think was sensible drafting in the Digital Economy Act. That Act is not ancient history—it was only 12 months ago. Otherwise, the risk is that the Government, employers, courts and trade unions will get into an awful muddle as they try to understand which legislation protects whistleblowers in new circumstances. None of us wants to create a situation of uncertainty and ambiguity that stops whistleblowers from coming forward with important information.

I therefore hope we can have a useful debate about why the Government have chosen to introduce new definitions when it is not clear that they are improvements on well-established employment law that dates back to the Employment Rights Act 1996. Let us hear what the Minister has to say, but I hope the Government reflect on the arguments we rehearse this afternoon and introduce further enhancements and perfections on Report.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

The right hon. Gentleman is correct: it is essential that we do not create an offence in the clause that will snare whistleblowers. I am sure the Committee shares that goal. Indeed, if we created such an offence, whistleblowers would no longer be whistleblowers—a qualifying disclosure would no longer be a qualifying disclosure if it were an offence under different legislation, including the Bill.

We will listen carefully to what the Minister says, but, to come at it from a slightly different angle, as I understand it, the Employment Rights Act currently requires a “reasonable belief” by the worker making the whistleblowing disclosure that it is in the public interest to disclose that information. That seems a slightly easier test than the one contained in a defence in subsection (2) of the clause, which requires not a “reasonable belief”—those words do not appear—but proof that disclosure was justified in the public interest. There is also a contrast with subsection (3), where a reasonable belief test is applied to a defence but only in circumstances of publication of either journalistic, artistic or literary material.

It is not clear to me why there is a reasonable belief test in subsection (3) but not in subsection (2). I am interested to hear what the Minister has to say about that distinction.

[Margot James]

The amendments concern offences relating to personal data provided for by part 6 of the Bill. Hon. Members will be aware that the offence of unlawful obtaining of personal data has been carried over and updated from the 1998 Act to include the unlawful retention of personal data without the controller’s consent. By contrast, the offence of re-identification of de-identified personal data is new to data protection legislation, underlining our intention to bring data protection laws up to date with the digital age.

Amendment 157 would add an additional defence to clause 170 where the conduct is in the process of a disclosure by an employee raising public interest concerns about wrongdoing or malpractice to the extent that such disclosures would be protected by the Employment Rights Act 1996 and equivalent legislation for Northern Ireland. Amendment 158 adds the same defence to clause 171.

I share the sentiment of the amendments, but believe they are unnecessary. Clauses 170 and 171 provide defences in cases where the processing is necessary for the prevention or detection of crime or can be justified as being in the public interest. We believe that the crime prevention defence would cover a disclosure by an employee who suspected that an offence had been committed, and that the flexible public interest defence would encapsulate the other non-criminal activities envisaged by the amendments. In particular, as set out in section 43B of the Employment Rights Act 1996 and article 67B of the Employment Rights (Northern Ireland) Order 1996, a disclosure is protected in the first place only if the disclosing worker reasonably believes the disclosure to be in the public interest.

[Stuart C. McDonald]

This is a narrow question that I raised in my speech. There is a “reasonable belief” test in the 1996 Act. It is easier for someone to prove that they had a reasonable belief that a disclosure was in the public interest than to prove that it was in the public interest. That slight difference in wording may be significant. There are in fact two different tests in the clause, so I wonder whether the Minister might look at that again.

[Margot James]

I referred to the public interest defence as a flexible defence that would encapsulate non-criminal activities. I do not know whether that satisfies the hon. Gentleman, but a flexible public interest defence is indeed required.

For those reasons, I reassure hon. Members that a further defence providing for whistleblowing is unnecessary. It is telling that there is no such defence in section 55 of the 1998 Act, and we are not aware of any problems with its operation. Hon. Members mentioned section 58 of the Digital Economy Act 2017. That is a difficult comparison. Unlike clauses 170 and 171, section 58 does not contain a straightforward public interest defence, so, unlike the offences in the Bill, there may be no alternative protection for such disclosures. I hope I have given hon. Members sufficient reassurance that they feel confident withdrawing their amendments.