Data Protection Bill [HL]

Viscount Eccles Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Viscount Eccles (Con)]

My Lords, I think I should introduce my wife to the noble Lord, Lord Mitchell. She has some worries about Apple and, come to think of it, she has probably been snooping on me.

I shall spend my time on the European Union Committee’s third report. I very much welcome the Motion tabled by the noble Lord, Lord Jay, and the very measured way he introduced the report. I heartily agree with the noble Lord, Lord Stevenson, and my noble friend Lady Neville-Jones that we want the committee to go on studying these matters so that we come to understand them better than we do. That seems very important because an aspect of this Bill is that it is a pre-Brexit negotiation Bill. All the things in the Bill are of massive interest, as has been illustrated, but, as I understand it, in the Government’s mind it is a preparation for the negotiations that will inevitably follow, given the timing of the introduction of the GDPR and the triggering of Article 50. Of course, the provisions of the GDPR come under the single market in the systems of the European Union, which makes it even more important that we think very carefully about where we are and how we can make the best of it.

I have to admit that I do not think the starting point is a very good one. It seems to me that we used to understand that the European Union method of negotiation was that nothing is agreed until everything is agreed, but it has thrown that out of the window and this is not the way this negotiation is going. If nothing is agreed until everything is agreed, you have to have discussed everything before you come to the conclusion, but this is not where we are. The Commission keeps saying, “You are bad boys and have not offered us enough”, so the starting point is not very good, which raises the question of where data protection will come in to these negotiations.

I admire the Explanatory Notes—as I think the noble Lord, Lord Stevenson, did—which are a pretty good document compared to other Explanatory Notes that I have seen in the past. I was also interested in the August statement of intent, which was full of good intentions. But I think I rely more on the evidence that was given to the committee of the noble Lord, Lord Jay, and on that committee’s conclusions. Its central conclusion was that we should seek to achieve an “adequacy” decision. The report goes on, positively, to make recommendations on other difficulties such as the arrangements with the United States, as well as on the maintenance of adequacy, how it might be achieved and the continuance of shared policy.

I will offer just a word about “adequacy” and the use of language. The word “fairly”, which has no meaning in a court, has been used this afternoon. The word “adequacy” is pretty subjective. It has always been the Commission’s tendency to want to use words that are difficult to understand and have no clear meaning in English, such as “subsidiarity”—although that has not come into this part of our campaigning. Common sense tells us that both we and the European Union would be sensible to want to maintain data flows, with adequate protection. That is to say, although the present regime is not perfect, we would want it to continue and to improve.

However, unfortunately, our Brexit vote of no confidence in the Commission and in the project that it pursues has left us in an embarrassing and, it must be said, unfriendly negotiating atmosphere. What is more, our previous contributions following the Council of Europe’s Convention 108 have been very considerable. We not only started the ball rolling, together with many other members of the European Union—Germany, Austria, France and so on—with legislation in 1984, but we assisted a great deal in the run-up to the directive of 1995, when the European Union came into the action, somewhat after it had started; 10 years in fact. Then we had the 1998 Act, on which people have commented. With its 74 clauses and 16 schedules, it has done rather well in the circumstances of a changing world. However, that now seems not to help us with the Commission. We have been very helpful but now we have decided to walk off the pitch, and I think people do not like it if you leave in the middle of the game.

What we need from the Commission, as we have had on other occasions, is a flexibility of response, but I am afraid that is not the Commission’s strong point. Nor is its attitude to the Council of Europe, which started the process of Convention 108. I am not convinced that it will be full of joy at the Council of Europe modernising Convention 108. The EU has made an effort to become a member of the Council of Europe, so far unsuccessful. A personal reflection: if it were to be successful, with 27 or 28 votes out of 47, I suppose it would hope to take charge.

We are the defaulters, seen as obstinate, self-interested and unable to recognise the need for ever-closer union. And so we have this Bill. It is a sensible effort to get and remain in line with EU regulation—to show and share equivalence—even if in two places, I suspect much to the parliamentary draftsman’s distress, we qualify it with the adverb “broadly”. I am also sure we are right that we should be looking for an adequacy decision but, despite the excellent report and its very clear and admirable conclusions, will the Commission reciprocate? It will always be easy to quibble with third-country adequacy. It is a very complex subject and there will never be any difficulty in disagreeing with something; your Lordships have demonstrated that very clearly this afternoon. There is no perfect answer, certainly not one that will withstand the changes that make even a very good answer not such a good one later. So I am afraid my conclusion is that, unless things change, the Commission will continue to find fault with however manfully we try to satisfy its requirements. Is there then a chance that there will be some political intervention, some repetition of the statesmanlike behaviour of European politicians in 1949, the starting year of the Council of Europe? We have about a year to find out. Maybe, but I would not bet on it. No deal on this matter by default seems increasingly likely.