Data Protection Bill [Lords]

Debate between Stuart C McDonald and Margot James

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

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

Can the Minister give us a couple of examples to illustrate why these additional powers are necessary, and where the other powers in the Bill—in relation to criminal offences and investigations, for example—would not already suffice to do everything that the Home Office wishes?

[Margot James]

We are permitted under GDPR to make these exemptions and are doing so in a very selective way and on a case-by-case basis, so it will not result in a widespread denial of people’s data rights.

The exemption should be as limited as possible, which is why we have brought forward amendments 141 and 142. These amendments will ensure that migrants enjoy the rights afforded under all of the data protection principles, except where a restriction on those principles is a consequence of restricting one of the other rights coming within the scope of the exemption.

I now turn to Opposition amendments 18 and 19 on primary care providers, and Government amendments 22 to 24 on parish councils. Parish and community councils are not exempt from the new law. None the less, by describing parish and community councils as “public authorities” the Bill gives these councils additional obligations above and beyond those placed on other small organisations, including that they must appoint a data protection officer. We have been working to minimise the impact of this requirement, and have concluded that as parish and community councils process very little personal data, the burden they would face would be disproportionate. Amendments 22, 23 and 24 therefore take these councils out of the definition of “public authorities” for data protection purposes.

Data Protection Bill [ Lords ] (Seventh sitting)

Debate between Stuart C McDonald and Margot James

Thursday 22nd March 2018 Public Bill Committees

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

I will be very brief, because I will largely echo what the right hon. Member for Birmingham, Hodge Hill said. It is absolutely fair to say that our understanding of the potential value of personal information, including that gained by people who break data protection laws, has increased exponentially in recent times, as has our understanding of the damage that can be done to victims of such breaches. I agree that it is not easy to see why the proposed offences stop where they do.

I have a specific question about why there is a two-tier system of penalties. There is a set of offences that are triable only in a summary court and for which there is a maximum fine. I think the maximum in Scotland and Northern Ireland is £5,000. There is a second set of offences that could conceivably be triable on indictment, and there is provision there for an unlimited fine, but not any custodial sentence.

For some companies, if they were in trouble, a £5,000 fine for essentially obstructing justice would be small beer, especially if it allowed them to avoid an unlimited fine. It would be interesting to hear an explanation for that. Many folk would see some of the offences that are triable on indictment as morally equivalent to embezzlement, serious theft or serious fraud, so it is legitimate to ask why there is no option for a custodial sentence in any circumstance.

[Margot James]

I certainly share the concerns that hon. Members have expressed in the light of the dreadful Cambridge Analytica scandal. I will set out the penalties for summary only offences, which lie in clause 119, “Inspection of personal data in accordance with international obligations”; clause 173, “Alteration etc of personal data to prevent disclosure”; and paragraph 15(1) of schedule 15, which contains the offence of obstructing the execution of a warrant. The maximum penalty on summary conviction for those offences is an unlimited fine in England and Wales or a level 5 fine in Scotland and Northern Ireland.

Clause 189(2) sets out the maximum penalties for offences that can be tried summarily on indictment, which include offences in clause 132 “Confidentiality of information”; clause 145 “False statements made in response to an information notice”; clause 170 “Unlawful obtaining etc of personal data”; clause 171 “Re-identification of de-identified personal data”; and clause 181 “Prohibition of requirement to produce relevant records”. Again, the maximum penalty when tried summarily in England or Wales, or on indictment, is an unlimited fine. In Scotland and Northern Ireland, the maximum penalty on summary conviction is a fine

“not exceeding the statutory maximum”

of an unlimited fine when tried on indictment.

Data Protection Bill [Lords] (Sixth sitting)

Debate between Stuart C McDonald and Margot James

Tuesday 20th March 2018 Public Bill Committees

[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.

Data Protection Bill [ Lords ] (First sitting)

Debate between Stuart C McDonald and Margot James

Tuesday 13th March 2018 Public Bill Committees

[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 ---

[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.

Oral Answers to Questions

Debate between Stuart C McDonald and Margot James

Tuesday 27th June 2017 Commons Chamber

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

3. What his policy is on the non-release or late release of cash retentions in the construction industry.

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

Unjustified late and non-payment of a retention payment or any amount owed is unacceptable. These practices cause particular problems for small businesses in the construction sector, and the Government are committed to tackling them. We will shortly be publishing research into these issues, alongside a consultation document.

[Stuart C. McDonald]

The system of cash retentions has been wreaking havoc in the construction industry for decades. Can the Minister assure us that there will soon be radical action to overhaul the system, and can she explain why it has taken so long?

[Margot James]

There is, indeed, far too much abuse of the system of cash retention, and it has been going on for too long. The burden of administrative time spent securing payments and the drain on working capital weigh far too heavily on smaller firms in the supply chain, and I can assure the hon. Gentleman that we will be taking action.

Oral Answers to Questions

Debate between Stuart C McDonald and Margot James

Wednesday 23rd November 2016 Commons Chamber

[Stuart C. McDonald]

12. In July, the party leader of the Secretary of State told the BBC:“I want to stay in the single market, even if the consequence of that is maintaining free movement of labour.”Ruth Davidson was 100% correct, so can the Secretary of State explain the shoddy U-turn?

[Margot James]

There was no U-turn whatever on that. The UK Government will seek the best possible deal for all parts of the United Kingdom. That will include limits on free movement and the best possible access to, and trade within, the single market for British companies.