Data Protection Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 5:49 pm on 10th October 2017.

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Photo of Baroness Jay of Paddington Baroness Jay of Paddington Labour 5:49 pm, 10th October 2017

My Lords, it is a pleasure to follow the noble Baroness, Lady Howe, and to recognise her expertise in discussing the issues around children’s protection. I share many of her ideas. I welcome the Bill, and echo other noble Lords in recognising that it has enormous significance and is very timely. I am grateful for the clear explanation of the EU Committee’s report, which showed the complexities of the continuing interrelationships between this country’s legislation and that of Europe and the way in which we will have to deal with that for many years to come.

At this stage, it is worth reminding ourselves—or at least reminding myself—that we are talking about so many areas of our society today and so many aspects of 21st century life, which we are aware that not all of us understand. I know there are many experts in this field. I refer in particular to the noble Baroness, Lady Lane-Fox, who will speak after me, when I say that there are people who clearly understand all the implications of the wider digital economy. However, I put myself among the majority of the population when I say that although I am aware of the vast number of ways in which the digital revolution impacts on and, perhaps somewhat frighteningly, dominates our everyday lives, it is almost impossible for most of us to know how and by whom our personal data is being collected, with whom it is shared and to whom it is probably sold. Therefore, robust protection of privacy and the ethical regulation of data are essential if we are to continue with our democratic principles.

My noble friend on the Front Bench, Lord Stevenson, has already referred to some of the gaps that he sees in this legislation; no doubt those will be referred to and returned to at a later stage. I am concerned that the way some of the Bill is drafted already suggests that we are once again moving into that area where the role of this House and the other place is diminished by so much secondary legislation being proposed. I do not apologise for raising yet again, as I have in previous debates, what I see as a paradox: so much of the support for Brexit depended on the restoration of parliamentary sovereignty to Westminster, yet when we come to look at the detail of some of the Bills to implement some of the implications of Brexit—particularly in this kind of complex area—we find that the presentation is often based on secondary legislation where the role of this House, particularly in scrutinising and revising, and that of the other place, is somewhat diminished. It seems an extraordinary paradox to me.

Noble Lords have already referred to Clause 15, which is particularly worrisome in this area. It would clearly permit alterations by the affirmative action procedure. It will be important, when we debate the detail of the Bill, to recognise that professional bodies are already mentioning that as a concern. As was mentioned briefly by a previous speaker—I think it was the noble Lord, Lord McNally—I draw the attention of the House to the British Medical Association having drawn particular attention to the potential problem of regulations being altered in this way. Noble Lords will be aware that the security of sensitive healthcare information is clearly essential to good medical practice. The BMA is now concerned that the centrally important trust in doctor/patient relationships may be threatened in future if changes in data sharing can be fast-tracked without proper scrutiny through the secondary legislation process. Again, the House will be aware that, as the law stands, healthcare information has special protection through the common-law duty of confidentiality. I hope it will be possible for the Government to assure the House, at the earliest opportunity, that the proposed regulatory powers will not be overridden in that way, and in particular that that crucial safeguard will continue to exist. It may be possible to give a general assurance on the general procedures on regulation.

I turn to some of the questions which arise from what I describe as general ignorance about the uses and abuses of personal data in the global digital economy. My noble friend Lord Puttnam, who is unavoidably away today—and who is a greater expert and far more authoritative in this field than myself—wanted to contribute to the debate by suggesting some ways of improving the situation of so-called digital literacy by means of the Bill. With his permission, I will mention his proposals, which I am sure he will return to at the later stages. It is, of course, completely extraordinary to me that when my noble friend Lord Puttnam and I worked together in 2003 on the Communications Bill, that Act contained no reference to the internet. In the 14 years since we have all become familiar with so many digital concepts: standardised algorithms, bots, big data and what is increasingly referred to as “data capitalism”. We are familiar with the words, but I am not sure that we all understand their implications for privacy and personal data.

It has been said this afternoon that national Governments now face the legal and technical challenge of trying to regulate international communication and information flows, which are largely controlled by a handful of American-based internet corporations. In this parliamentary Session, I have the privilege of sitting on your Lordships’ Select Committee on Political Polling and Digital Media. We are investigating the questions of accuracy and transparency thrown up by using internet data in politics. We are only beginning to uncover the complexities and threats that the new systems create. Again, in this context, in the last year we have all heard about so-called fake news and possibly even Kremlin-inspired online intervention in western democracies. Only yesterday, there were reports of operatives using individual Facebook accounts to generate support for President Trump; but is it possible to influence effectively, or control, any of that in the public interest? As a good democrat, the noble Lord, Lord McNally, remains optimistic, but I find it very hard to see how an individual Government can act legislatively to moderate the growing tsunami of online data exchange—and how through the law we can protect individuals from manipulation and exploitation.

A possible route that, optimistically, could influence behaviour and protect citizens from the most egregious breaches of their privacy, is through public education. That is obviously a long-term project. Creating better-informed consumers who understand how their shared personal data may be used, and what may happen to data when it is passed on, would clearly be an advantage. That is important when we are talking—as the noble Baroness, Lady Howe, and other contributors did before me—about young people growing up with the internet. They are the greatest users of every type of social media but, although they may be technically adept, they are often the most ignorant about what they are signing up to or giving away when they use seductive sites or post so much information online.

I welcome the provision in the Bill that allows young people to remove content—the right to be forgotten. However, I share the concerns of the noble Baroness, Lady Howe, the right reverend Prelate and others, about the age of consent being 13. As a grandmother, as they say, I would be very happy to see that age raised. As referred to by the right revered Prelate, who is not in his place, it is interesting that, when surveyed, 81% of the general public wanted to try to raise that age. I hope we will return to this issue at a later stage.

It is important to look at some of the fundamental issues about how we can achieve better public education in this field. Do we need to think again about how to achieve a digitally literate population in the true sense, which in turn could hopefully influence the attitudes and actions of the big tech companies and change the opinion of the world? That may be a more sensible way to proceed than continuing to make what may be vain attempts to regulate the ever-expanding web. The House will remember, as the noble Lord, Lord McNally, has already said, that in the original Communications Act 2003, Ofcom was given the specific duty of promoting “media literacy”. In that Act—perhaps I may quote from it—the duty is very broadly based. First, it is,

“to bring about, or to encourage others to bring about, a better public understanding of the nature and characteristics of material published by means of the electronic media”.

Secondly, it is,

“to bring about, or to encourage others to bring about, a better public awareness and understanding of the processes by which such material is selected, or made available, for publication by such means”.

However, since the passage of the Bill, Ofcom seems largely to have interpreted these responsibilities in rather a narrow and perhaps pragmatic way. For example, it has asked how we can ensure that the elderly population has appropriate access to digital technology and how can internet drop-out areas, or areas where it is difficult to achieve broadband, be improved?

My noble friend Lord Puttnam is therefore proposing that in Part 5 of the Bill, which covers the Information Commissioner, a wider duty be placed on the commissioner to act with Ofcom, and indeed with the Department for Education and the DCMS, on the use and abuse of personal data. He sees this as something that could be included by amendment in the “general functions” of the commissioner or established under a separate code of practice. He suggests that a code of practice could, for example, confer special responsibilities on the big technology giants to engage in the collaborative development of digital media skills. It does not seem naively optimistic to think that this type of statutory leverage could be influential. It could be a useful exercise of “soft power” to achieve more informed and responsible internet use by both providers and consumers. Effective and proper digital literacy is an approach that would avoid the continuing search for a national regulatory solution to some of the problems of the global digital economy—it may be long-term but it seems worth undertaking. I am sure my noble friend Lord Puttnam will table amendments in Committee.

I welcome the Government’s intention to update and strengthen a robust system of data protection. It is certainly an ambition that has recently been made more difficult both by corporately owned global technology giants which transcend the authority of national Governments and by the huge expansion of internet technology. I am glad that the Bill has started in this House, as I am sure it will, as always, be improved by your Lordships’ scrutiny and revision.