Data Protection Bill [ Lords ] (Morning sitting)

Victoria Atkins Excerpts

Thursday 15th March 2018 Public Bill Committees

[Brendan O'Hara]

My apologies.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

It is a pleasure to serve under your chairmanship, Mr Streeter. Clause 26 creates an exemption for certain provisions in the Bill only if that exemption is required for the purpose of safeguarding national security or for defence purposes. Where processing does not meet these tests, the exemption cannot apply. It is possible to exempt from most but not all the data protection principles the rights of data subjects, certain obligations on data controllers and processors, and various enforcement provisions, where required to safeguard national security or for defence purposes. In relation to national security, the exemption mirrors the existing national security exemption provided for in section 28 of the 1998 Act. The statutory framework has long recognised that the proportionate exemptions from the data protection principles and the rights of data subjects are necessary to protect national security. The Bill does not alter that position.

The exemption for defence purposes is intended to ensure the continued protection, security and capability of our armed forces and of the civilian staff who support them—not just their combat effectiveness, to use the outdated language of the 1998 Act. In drafting this legislation, we concluded that this existing exemption was too narrow and no longer adequately captured the wide range of vital activities that are undertaken by the Ministry of Defence and its partners. We have seen that all too obviously in the last two weeks.

[Liam Byrne]

On that point, will the Minister give way?

[Victoria Atkins]

If the right hon. Gentleman is going to disagree with me that combat effectiveness would be a very narrow term to describe the events in Salisbury, of course I will give way.

[Liam Byrne]

I actually wanted to ask about interpreters who support our armed forces. There is cross-party consensus that sometimes it is important to ensure that we grant leave to remain in this country to those very brave civilians who have supported our armed forces abroad as interpreters. Sometimes, those claims have been contested by the Ministry of Defence. Is the Minister confident and satisfied that the Ministry of Defence would not be able to rely on this exemption to keep information back from civilian staff employed as interpreters in support of our armed forces abroad when they seek leave to remain in this country?

[Victoria Atkins]

I cannot possibly be drawn on individual applications for asylum. It would be wholly improper for me to make a sweeping generalisation on cases that are taken on a case-by-case basis. I refer back to the narrow definition that was in the 1998 Act and suggest that our enlarging the narrow definition of combat effectiveness would mean including the civilian staff who support our brave troops.

The term “defence purposes” is intended to be limited in both application and scope, and will not encompass all processing activities conducted by the Ministry of Defence. Only where a specific right or obligation is found to incompatible with a specific processing activity being undertaken for defence purposes can that right or obligation be set aside. The Ministry of Defence will continue to process personal information relating to both military and civilian personnel in a secure and appropriate way, employing relevant safeguards and security in accordance with the principles of the applied GDPR. It is anticipated that standard human resources processing functions such as the recording of leave and the management of pay and pension information will not be covered by the exemption.

[Liam Byrne]

I am sorry to press the Minister on this point, and she may want to write to me as a follow-up, but I think Members on both sides of the House have a genuine interest in ensuring that interpreters who have supported our troops abroad are able to access important information, such as the terms of their service and the record of their employment, when making legitimate applications for leave to remain in this country—not asylum—or sometimes discretionary leave.

[Victoria Atkins]

I am very happy to write to the right hon. Gentleman about that. The exemption does not cover all processing of personal data by the Ministry of Defence, but I am happy to write to him on that subject.

It may assist the Committee if I give a few examples of processing activities that might be considered to fall into the definition of defence purposes requiring the protection of the exemption. Such processing could include the collation of personal data to assist in assessing the capability and effectiveness of armed forces personnel, including the performance of troops; the collection and storage of information, including biometric data necessary to maintain the security of defence sites, supplies and services; and the sharing of data with coalition partners to support them in maintaining their security capability and the effectiveness of their armed forces. That is not an exhaustive list. The application of the exemption should be considered only in specific cases where the fulfilment of a specific data protection right or obligation is found to put at risk the security capability or effectiveness of UK defence activities.

The hon. Member for Sheffield, Heeley asked for a definition of national security. It has been the policy of successive Governments not to define national security in statute. Threats to national security are constantly evolving and difficult to predict, and it is vital that legislation does not constrain the security and intelligence agencies’ ability to protect the UK from new and emerging threats. For example, only a few years ago it would have been very difficult to predict the nature or scale of the threat to our national security from cyber-attacks.

Clause 26 does not provide for a blanket exemption. It can be applied only when it is required to safeguard national security or for defence purposes.

[Daniel Zeichner]

What weight does the Minister give to the written evidence that the Committee received from the Information Commissioner’s Office? It is obviously expert on this issue, and it addresses some of the points she made. It concludes that there is no threshold for when “defence purposes” are to be used, and that there is no guidance

“for when it is appropriate to rely on the exemption.”

What weight does the Minister give to that, and what is her response to the concern raised by the Information Commissioner’s Office?

[Victoria Atkins]

Again, surely it is for the Executive—elected officials—to take responsibility for decisions that are made by data controllers in the Ministry of Defence. Obviously, the Department has considered the Information Commissioner’s representations, but this is not a blanket exemption. The high threshold can be met only in very specific circumstances.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

Clause 27

National security: certificate

[Louise Haigh]

I beg to move amendment 161, in clause 27, page 17, line 2, leave out subsection (1) and insert—

“A Minister of the Crown must apply to a Judicial Commissioner for a certificate, if exemptions are sought from specified provisions in relation to any personal data for the purpose of safeguarding national security.”

This amendment would introduce a procedure for a Minister of the Crown to apply to a Judicial Commissioner for a National Security Certificate.

--- Later in debate ---

[The Chair]

I will call the Minister to respond, but before she responds to that point, she wishes to correct the record in relation to a previous point, which I am happy to permit.

[Victoria Atkins]

On reflection, I would not wish the hon. Member for Cambridge to understand my earlier answer to mean that a Minister makes a decision on defence purposes. I apologise to him if that was not clear. It is the data controller at the Ministry of Defence who makes that decision. The data controller is accountable to Ministers and in due course to domestic courts. I hope that clarifies that.

[The Chair]

And now the response to amendment 161.

[Victoria Atkins]

I think I am going to be cut off for lunch, Mr Streeter.

[The Chair]

It is up to the Committee what time we adjourn for lunch, of course, and the Minister may wish to speak quite rapidly.