Data Protection Bill [HL] - Committee (1st Day)

– in the House of Lords at 2:59 pm on 30th October 2017.

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Relevant document: 6th Report from the Delegated Powers Committee, 6th Report from the Constitution Committee

Clause 1: Overview

Amendment 1

Moved by Lord Stevenson of Balmacara

1: Clause 1, page 1, line 5, at end insert—“( ) Section (Right to protection of personal data) makes provision for a general right to the protection of personal data.”

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

My Lords, in moving Amendment 1 in my name I shall speak also to Amendment 4A, which I hope the Government will agree is consequential. We now commence seven days in Committee on the Bill in your Lordships’ House with a simple amendment. It sets out a principle that we think is important enough to ensure that it is at the heart of the Bill. As in all Committee debates, Her Majesty’s loyal Opposition hope to engage the Government on issues of both principle and detail, and thereby improve the Bill by the time it leaves this House. As witness to our willingness to work with the Government, we have been reading the rather florid statements that the Government put out over the weekend and have tabled an amended version of our Amendment 4 in manuscript, which I gather significantly reduces the gap between us and the Government on a number of key points. But we will not resile from ensuring that the principles which underpin this Bill are securely in place.

As we made clear at Second Reading, we broadly support the Bill but we cannot ignore the fact that if the European Union (Withdrawal) Bill receives Royal Assent as it currently stands, it will remove rights which the people of this country currently enjoy, care deeply about, and are essential to UK business going forward. We think that the status quo has worked well for the UK up until now, so if it is not broken, why change it? I hope that the noble Lord has a convincing argument to make on this point when he comes to respond.

Much has already been said in your Lordships’ House about how complicated this Bill is. It has to deal with a fast-growing and crucial part of our economy and the pace of technological change will create services that we cannot even imagine today. Legislating for this is complicated, but getting the principles right is the key here. It gets even more complicated. The Bill deals with the situation that will obtain after the general data protection regulation is implemented across Europe on 25 May 2018. It provides for the period from that date until such time as the UK leaves the EU and it covers the period after that when what is called the “applied GDPR” will become the law of the land. It has been remarked on that all this is happening without Parliament actually scrutinising the basic text. I suggest again that principles are the key.

One of the key principles which underpinned earlier data protection legislation is Article 8 of the EU Charter of Fundamental Rights. It is indeed the basis of much of what is in the GDPR and applies to the whole of the EU, but when we try to find references in the Bill to the right to privacy and to the protection of personal data which Article 8 guarantees, they are not mentioned explicitly. We believe that the Government approach is wrong for three reasons. These principles matter and have been the subject of recent decisions in the courts, not least the one mounted by the Secretary of State for Exiting the European Union when he was David Davis MP, along with Tom Watson MP. Secondly, the removal of the right to protection of personal data risks weakening, or being perceived as weakening, UK data protection post Brexit. That may have significant consequences for UK data processing businesses, a point that I want to come back to.

The third reason is a broader point, one that the Government do not seem or perhaps do not want to get: rights and specific law act together to make a whole that is greater than the sum of the parts. If we were continuing in our membership of the EU, the fact that the Bill does not explicitly cover our rights to privacy and protection of our personal data might not matter because the EU Charter of Fundamental Rights would continue to be in force and individual data subjects such as Mr Davis and Mr Watson could rely on it if required. But while the EU withdrawal Bill currently in another place contains thousands of provisions that will be converted into our law, only one provision has been singled out for extinction—the EU Charter of Fundamental Rights. This omission from the Data Protection Bill really does matter because as well as underpinning personal rights to privacy, the wording of Article 8 will in effect be right across the rest of Europe and underpinning the legal framework permitting the free flow of data across European borders. It is the removal of the references to Article 8 that will provide a significant and totally unnecessary risk when the time comes for the EU to assess whether our regime is essentially equivalent to the rest of the EU, because that will be the test.

It is common ground among all the parties that it is essential that immediately after Brexit, the Government should obtain an adequacy agreement from the Commission so that UK businesses can continue to exchange personal data with EU countries and vice versa. If we are unable to reach such an agreement with the EU, there will be no legal basis for the lawful operation of countless British businesses and there will also be a significant question of whether EU companies will be able to trade with us if we do not enjoy the Article 8 protections that they will have. That, in fact, is double jeopardy. The Government seem to have forgotten that the frictionless transfer of data is critical to the functioning of our economy. Roughly 70% of the UK’s trade and services is reliant on the free flow of personal data. The EU’s data economy is expected to be worth £643 billion by 2020 and millions of UK citizens regularly share their lives online. To operate, UK businesses require clarity on the legal basis for data transfer post Brexit, but so do EU companies.

The rights outlined in our Amendment 4A are at the cutting edge of global data protection law and are essential for our tech industry in the UK. Indeed, the wording of the amendment was suggested to us by techUK, which is the industry voice of the UK tech sector, representing more than 950 companies, which collectively employ more than 800,000 people. That is about half of the tech jobs in the United Kingdom. If compliance with the Charter of Fundamental Rights is required to secure regulatory harmony and thus business confidence, the Government’s commitment to jettison these references in the charter appears rather odd.

Finally, concerns have been raised as to whether the amendment, even as redrafted, cuts across the GDPR. This is not the intention. The amendment does not undermine the role of the GDPR or the derogations to the GDPR set out elsewhere in the Data Protection Bill, which we support.

We will listen very carefully to the debate. I make it clear that we hope the Government will agree that the principles we outline in these amendments are important and will offer to work with us to make sure the Bill is amended on Report to achieve the objectives I have outlined. I beg to move.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 3:15 pm, 30th October 2017

My Lords, I am also pleased, as co-signatory, to support the amendment, the purpose of which is to retain in domestic law wording from the European Charter of Fundamental Rights concerning data protection. This is for the benefit of British citizens and to help ensure that vital data flows for business and law enforcement can continue if we Brexit.

The specific article in the EU charter, Article 8 on data protection, is stronger in this respect than the older non-EU European Convention on Human Rights, which deals with privacy only under the rubric of protection of family and personal life. The Government plan that the charter should cease to be part of UK domestic law after Brexit in Clause 5(4) of the European Union (Withdrawal) Bill. This broader issue will be considered as part of the scrutiny of that Bill, and there is a cross-party amendment tabled in the House of Commons and led by Dominic Grieve MP to remove that clause such that the charter continues to apply domestically in the interpretation of retained EU law. Liberal Democrats strongly support that amendment, but it seems appropriate not to wait for or depend on the success of that broader effort and at least effectively to embed the thrust of the charter as it concerns data protection in this Bill, which largely concerns EU law.

This is extremely important because if we Brexit, the UK will seek from the European Commission an adequacy decision on UK data protection so that transfers between the UK and the EU can continue smoothly—an objective the Prime Minister has singled out for mention. If we leave, EU states may no longer be able to share data with us unless our legal regime on matters including state surveillance powers aligns with EU requirements. The adequacy assessment will be wide-ranging, taking in all aspects of law and practice in the UK. The embedding of the charter’s data protection right in this Bill would be an important safeguard for business continuity—especially for tech companies, which depend crucially on the free flow of data—as well as ensuring that essential cross-border police and intelligence co-operation is not disrupted.

I, my noble friends Lord McNally and Lord Paddick, and other noble Lords raised at Second Reading the need for measures to protect us from threats, not to undermine our civil liberties. We are used to the European Court of Human Rights ruling on privacy issues, several times finding the UK in breach of the convention, but more recently in the digital age it is the European Court of Justice—the EU court—that has come into play as EU law on protection of electronic communications and the provisions of the Charter of Fundamental Rights has begun to bite. The Snowden revelations brought heightened sensitivity about the extent of the legitimacy of the activities of our intelligence services.

The EU data retention directive—the EU law on mandatory mass data retention—was pushed through Brussels in 2005 when the UK had the presidency of the EU by the then UK Home Secretary in an expert piece of lobbying after the London bombings of that year. In a landmark 2014 judgment, the court struck it down as incompatible with the right to respect for private life and data protection under Articles 7 and 8 of the charter. Then, as mentioned by the noble Lord, Lord Stevenson, the judgment on DRIPA last December—technically, the Tele2/Watson case, although initially also involving the then Back-Bench David Davis MP—continued in the same vein, declaring that mass data retention was “disproportionate” to citizens’ rights to privacy. Its implications for the Investigatory Powers Act and the question of whether bulk collection of communications data could be permitted to infringe privacy on the grounds of pursuit of serious crime or threats to national security may be ascertained by the reference to the European court made by the Investigatory Powers Tribunal in September. Certainly, the wide range of powers in the Investigatory Powers Act might look vulnerable to being found in conflict with EU law. The Independent Reviewer of Terrorism Legislation, Max Hill, suggested that it was unclear whether the ruling in the Watson case on safeguards for data retention regimes could be interpreted as applicable to national security.

It is true that while in the EU the national security exemption from EU competence applies but, as was brought out at Second Reading, if we were outside the EU the arrangements for our intelligence agencies would go into the whole mix that is assessed for compliance with EU standards. The court’s decision in July, rejecting the legality of the EU agreement with Canada on the transfer of passenger name record details, provides a salutary lesson in how the court approaches third-country transfers. It struck down the agreement because several of its provisions were incompatible with EU fundamental rights. It is therefore crucial that we embed the wording of Article 8 of the charter.

The Labour Opposition have tabled an amended version of Amendment 4, namely Amendment 4A. This is an interesting variation and I look forward to learning a bit more as we progress about exactly how the new wording would work. As I understand it, the safeguards in subsection (1) of the proposed new clause and the first part of subsection (2), which are replicated from Amendment 4, would and should still govern the,

“provisions, exceptions and derogations of this Act”, otherwise, the point of writing in safeguards is undermined.

I wonder about the reference to,

“purposes as set out in the GDPR”, since the GDPR is concerned only with the processes for data manipulated in accordance with purposes set down in other instruments. I am slightly unclear about that.

I believe that there has been concern about a conflict with press freedom. Of course we are suffering here from the fact that we have only a partial bite from the charter, which contains a firm provision on freedom of expression and information as well as on the right to security. When we succeed in retaining the whole charter in domestic law via the EU withdrawal Bill, the whole balancing exercise will become more apparent than with this snapshot. In the meantime, we have to proceed with entrenching this partial aspect of the charter as concerns data protection.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, the problem with Amendment 4 is that it would not incorporate the charter provision relating to personal data. The reason for that is that it addresses the prima facie right to the protection of personal data, but not the limitations and exceptions recognised by the European charter itself. Article 8, like all the other rights in the European charter, is subject to the limitations stated in Article 52. That says that there can be limitations on protected rights if they are provided for by law, are necessary and meet,

“objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.

It is because there has to be a balance between this prima facie right and exceptions and limitations that the Bill contains a very large number of exemptions which cover a whole range of circumstances in which the rights of the data subject have to give way to other considerations, such as national security, the detection of crime, taxation, judicial appointments or confidential references for employment. There are many such exemptions.

The Bill contains exemptions because there are other interests in this area, and other rights, which conflict with the right to protection of personal data, and a fair balance is required. The Committee will want to debate the scope of those exceptions and limitations and be satisfied that the balance has been struck correctly. But Amendment 4 suggests that there is some absolute right to the protection of personal data. That is simply wrong. That is why, I imagine, the noble Lord, Lord Stevenson, has tabled manuscript Amendment 4A, which attempts to address the defect in Amendment 4.

I would have wished for more time to consider Amendment 4A, which I understand was tabled only this morning, particularly if the noble Lord, Lord Stevenson, intends to divide the Committee today. I am concerned that Amendment 4A poses two difficulties of its own. First, the value of including Amendment 4A is not clear to me. The Bill already sets out in considerable detail the domestic implementation of the charter obligation; that is, Article 8 read with Article 52. I fear that including Amendment 4A in the Bill would be likely to cause legal confusion and uncertainty in an area where precision and clarity are essential—and, indeed, are provided by the substance of the detailed provisions in the Bill.

Secondly, I fear that the purpose of Amendment 4A is to confer some special, elevated legal status on Article 8 rights concerning personal data for the future, as subsection (4) suggests. I think that would be very unwise because, as I have said, Article 8 rights often conflict with other rights—whether it is freedom of expression, which we heard about, or the right to property—or other interests. The detailed provisions of the Bill illustrate the difficult choices that have to be made in this area.

Amendment 4A seeks to give a special legal status to one charter right in isolation and that is simply inappropriate. For those reasons, I hope that the noble Lord, Lord Stevenson, will not divide the Committee on Amendment 4A. If he does, I will vote against it.

Photo of Lord Faulks Lord Faulks Conservative

My Lords, this is a complex Bill—necessarily so as it balances the need to access data and the need, in appropriate circumstances, to protect data from access, as the noble Lord, Lord Pannick, said. Most of the amendments in the Marshalled List seem to me to be about fine-tuning the provisions to alter the balance a little, one way or another. However, Amendment 4A—charmingly introduced as it was by the noble Lord, Lord Stevenson—seems to be in a different category. It seeks to incorporate the provisions of the Charter of Fundamental Rights into the Bill by including the wording of Article 8.

I do not claim particular expertise in data protection, except to say that every business and every professional is or should be aware of their obligations in this area. I do, however, have considerable experience of the interaction of detailed legislative provisions and rights instruments. My experience stems from legal practice and as a former Minister in the Ministry of Justice. A particular focus of my attention was the European Convention on Human Rights and, to a lesser extent, the charter.

There is always a difficulty in marrying up detailed legislative provisions and broad-based charters or conventions, which are inevitably framed in generalisations. I have always thought that a combination of our Parliament and our courts should be capable of protecting citizens’ rights. However, to help in that pursuit we have the Human Rights Act, which incorporates the European convention into our law and gives the Strasbourg court a significant role.

The charter, unlike the European convention, is a relatively new development and it is a particularly EU document, as opposed to one stemming from the Council of Europe. When it came into being, there was concern that it could create a flood of new court actions, which could overturn British laws. However, the country was no doubt much reassured by Keith Vaz, the then Minister for Europe, who said that the charter would have no greater standing before EU judges than a copy of the Beano or the Sun. He specifically said that it did not,

“establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Union”.

The noble and learned Lord, Lord Goldsmith, who I am glad to see in his place, expressed himself in far more lawyerly terms when giving evidence to the European Scrutiny Committee, as one would expect. He explained that the UK Government’s objectives in the charter convention negotiations were to be careful that the charter did not create new rights and, in particular, not to make economic and social rights justiciable where they were not already justiciable.

Tony Blair, the then Prime Minister, assured the House of Commons, which was concerned about the implications of the charter:

“It is absolutely clear that we have an opt-out ... from the charter”.—[Official Report, Commons, 25/6/07; col. 37.]

He referred to Protocol 30 of the treaty. Unfortunately, the European Court of Justice took a different view of the effect of Protocol 30 and even though the charter applies only when member states are acting in the scope of EU law, the ECJ has rather inevitably read this phrase expansively.

In view of its previous attitude to the charter, it is therefore surprising that the Labour Party has now evinced such enthusiasm for it. For those of your Lordships who, like me, very much regret that we are leaving the EU, one of the only clear benefits for our law is that we will no longer be confused—or at least potentially confused—by the fact that the charter has some role as yet not clearly defined in our law. Clause 5(4) of the European Union (Withdrawal) Bill makes it absolutely clear that the charter will have no continued life after Brexit. This amendment, on the other hand, would hardwire the charter, or at least Article 8, into our law and of course would give the ECJ, as the ultimate arbiter of EU law—and this is EU law—a continued role after Brexit.

All this is very good news for lawyers, for whom complexity is the stuff of profit. But how will it help in protecting rights? It is expressed as an absolute right—not its position in EU law, as the noble Lord, Lord Pannick, said. This is to be compared with Article 8 of the ECHR, a right which has caused some difficulty but is nevertheless a qualified right. How will the two work together? This would be an absolute, unqualified and free-standing right. How on earth are the courts to apply it, superimposed as it will be on other provisions in the Bill and existing concurrently with the European convention? There are distinct dangers that it will be relied upon by those whose data should be accessed, such as terrorists. I fear that we have as yet received no clear explanation of the justiciability of the provision and how it will work in practice, in particular in what circumstances it will provide protection which would not otherwise be provided by the detailed provisions of this Bill. It follows that this amendment is, in my view, incoherent, unnecessary and even potentially dangerous—but that is a charitable view.

Another view is that this is a cynical piece of politics. It has nothing to do with data protection and everything to do with Brexit. It is not without significance that the charter, as we have heard from the noble Baroness, Lady Ludford, is the subject of various amendments in the House of Commons in relation to the European Union (Withdrawal) Bill. Is this the first shot in the war to destroy that Bill? Surely it would be more appropriate for the Opposition to hold their fire, rather than undermine this valuable legislation.

The Liberal Democrats have of course made their position clear. They do not think it appropriate to respect the result of the referendum without asking the public to think again. It follows, I suppose, that they will have no compunction in undermining the coherence of this Bill in pursuit of their objective of frustrating Brexit. There are so many of them that, combined with the Labour Party, they can probably defeat the Government on this issue. I wonder how a party which is so insistent on the proper workings of democracy can justify by their disproportionate representation in this House playing such a destructive role, particularly when they are unelected.

The noble Lord, Lord Stevenson, is rightly respected in your Lordships’ House. I suspect he has his riding instructions. This amendment is at best a bad idea; at worst, it is a piece of unworthy political manoeuvring. I suggest your Lordships have no truck with it, and I hope the Committee will vote against it.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 3:30 pm, 30th October 2017

My Lords, one of my many character defects is party loyalty. That has led me in the past even to vote against my own amendment, which I will never do again. Today, I have the misfortune to disagree with my party. I will explain briefly why I cannot possibly support the original amendment, which is constitutionally illiterate, or the attempt to rescue it in the manuscript amendment.

The Minister has rightly put on the front page of the Bill his opinion that the Bill is compatible with the convention rights. Those rights include the right to free speech in Article 10 and the right to respect for privacy in Article 8. The Minister could certify in that way because the Bill rightly carries forward from the previous Act journalists’ rights—for example, to protect their sources—which you can find buried away in Schedule 2(5). The Minister was able to do that because we have the Human Rights Act, which requires him to do so, and the European convention, which strikes a balance between free speech and privacy.

I do not understand what on earth the charter has to do with that. As the noble Lord, Lord Faulks, rightly explained in the better part of his speech—the first part—the charter is there as a shield against the abuse of power by EU institutions. Maybe he did not say that, but he would like to have done, I am sure. It is not intended to be a source of rights in parallel with the European convention. The amendment in its original form, and its amended form, seeks to give legal force to one bit of the charter. It squints. It looks at Article 8 of the charter on privacy and data protection, but it does not look at the other bit of the charter that deals with free speech. Then, because it is obvious that the original version was constitutionally illiterate, the manuscript amendment seeks to repair that by saying that it is subject to the exceptions and derogations in the Bill. That is not good enough because it then seeks to give fundamental importance to the right of data protection, as though it were in the Human Rights Act and the European convention, and then it completely fails to explain how on earth any court is meant to reconcile the amendment, if it became law, or the amended amendment, if that became law, with what we already have in the European convention.

I agree with every word of my noble friend Lord Pannick’s speech, and I agree with the first part of the speech by the noble Lord, Lord Faulks. I am afraid I cannot possibly support this amendment. I very much hope that it will be a probe and nothing more at this stage. We are at the beginning of Committee stage. We need to think about some of these issues carefully. If we were now to divide the House and vote to incorporate either version, we would be doing an injustice to the arguments and intelligence of the House.

When I first joined the House, I remember Lord Alexander of Weedon saying to me, “Anthony, you must remember that the House of Lords is not a Court of Appeal; it is essentially a jury”. He was right about that. Most noble Lords, including me, will have understood only half of what was said in some of the original speeches. What is surely clear is that we would be failing in our duty today if we were to amend the very beginning of the Bill at this stage, rather than consider it properly and come back to it at Report.

Photo of Lord Arbuthnot of Edrom Lord Arbuthnot of Edrom Conservative

My Lords, it is a daunting thing to have to follow such an enjoyable speech. I simply say that, as I read Amendment 4 alongside Amendment 4A, it appears that the original opposition amendment had the unintended consequence that it destroyed all the exemptions already contained in the Bill. So Amendment 4A must be an improvement, but I am unclear precisely what is the purpose of Amendment 4A, because it expressly adds the principle of its being subject to all the general provisions of the Bill, so it adds nothing. I hope that we will not be pressed to a Division.

Photo of Lord Goldsmith Lord Goldsmith Labour

The amendment raises an important question of principle, and one which this House will have to consider further when we scrutinise the European Union (Withdrawal) Bill. One reason why the charter was brought into being was to give visibility to rights which existed elsewhere. As at least some noble Lords will know, I speak with some experience, having spent a number of months involved in the negotiation and conclusion of the European Charter of Fundamental Rights. It was a key aim behind the decision of the European Council at Tampere and Cologne to bring together a group of people to set out in the charter the rights which would affect them, largely in their relations with the EU institutions.

I emphasise the word “visibility”, because the point just made by the noble Lord, Lord Lester, about laypeople not understanding what lawyers say is all too familiar to those of us who are lawyers. It is a very good reason why we should attempt, when we are saying things which are important, to say them in a way which is clear and comprehensible. Both amendments—I shall come to the difference between them as I see it—start by saying that we all have the right to protection of personal data concerning ourselves. That is a very important principle, and one which is very reassuring, whatever the exceptions, derogations and limitations on it may be. That is what the charter sought to do: to make these things clear to everybody.

What are the objections to the amendments? The first is that they do not allow for the exceptions and reservations which apply. The noble Lord, Lord Pannick, referred to the provisions of the charter, which state that all of the rights in the charter, with almost no exception—although there are one or two—can be subject to exceptions and limitations. I agree with the noble Lord about that; that is the position taken in the charter, and rightly so. There is a balance between different rights of different people and of different rights between the citizen and the state.

That is what I understand that Amendment 4A is intended to correct, by making it clear that the general statement of principle, which I still believe is important, is none the less subject to certain exceptions and derogations set out in the Bill. The Bill in Clause 13 and the regulation-making power under Clause 14 provide for the ability to make exceptions, reservations and derogations. I sympathise with the noble Lord, Lord Pannick, when he says that he is not sure, in the time available, whether this will achieve the objective of turning something which he was concerned appeared to be too absolute into something which works. There are ways to deal with that and ensure that further time is available or—this is not for me to say—if my noble friend Lord Stevenson moves the amendment and it is passed, it can be corrected afterwards. But that is a point of timing, albeit an important detail. With respect, it appears to me that what matters is for us to give a clear statement that this principle of data protection applies to all of us.

It is then asked, “Well, what about other provisions in the charter?”. No doubt that is a debate that we will have when we come to the withdrawal Bill. Will those other provisions also be allowed to stand? That will be a matter for this House and the other place when the Government bring forward that Bill. However, there is a need for visibility and for reassurance to all that there will still be a principle of data protection that we will uphold. For that reason, while it is apparent from what I have said that my preference is for Amendment 4A as opposed to Amendment 4, I think that that amendment ought to receive the support of this House.

Photo of Lord Cormack Lord Cormack Conservative 3:45 pm, 30th October 2017

My Lords, I appeal to the noble Lord, Lord Stevenson, not to rush the House on this matter. The amendment is clearly deficient. This morning I was with the director of the Victoria and Albert Museum, Dr Tristram Hunt, who urged me, if I possibly could, to say something briefly this afternoon. He gave me a brief that I have not had a chance to master, but it is quite clear that all the directors of our great national museums and galleries have real misgivings about Amendment 4 and, from what I have heard, would have similar misgivings—or most of them—about Amendment 4A. There is no constitutional need for us to divide this afternoon. Shortly after I came into your Lordships’ House, I remember that the late Lord Jenkin of Roding said, “We don’t normally vote at Committee stage in our House. It’s better to air the arguments and then to come back to them on Report”. That was wise advice and the House should heed it today.

Photo of Lord McNally Lord McNally Liberal Democrat

My Lords, I suspect that this is going to be a shorter debate than perhaps was at first imagined, but I feel it is important that I add one or two words. When I was Minister at the Ministry of Justice, preceded by the noble Lord, Lord Faulks, I met a distinguished American lawyer. I said to him by way of introduction, as I regularly did, “Now, I’m not a lawyer”. He looked at me and said, “Then I’ll speak very, very slowly”.

I feel a bit like that after all the howitzers have been rolled out this afternoon—the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, along with a more helpful contribution from the noble and learned Lord, Lord Goldsmith. I intervened because it would be very wrong, or very misleading, if Ministers were to take this mini-debate as an escape from a real problem. I was, although the post may have been slightly misnamed, Minister for Data Protection for three and a half years. Between 2010 and 2013 I had the job of going across to Brussels for negotiations on a lot of the issues that we are now discussing. What struck me there was how much influence we had in bringing together legislation that met the concerns mainly of western Europeans about a light-touch form of regulation and the concerns mainly of eastern Europeans who had fairly recent experience of how state abuse of power could be used against the citizen and the individual.

The point that I want to leave with Ministers is that, whatever fault our legal experts have found with the amendment, it underpins a real concern, which the noble and learned Lord, Lord Goldsmith, picked up: the layman, the ordinary citizen, wants to be assured that by the end of the Bill’s passage, on which we are only just starting, it will very much protect civil rights, civil liberties and individual freedoms. One of the great challenges we face is that this extraordinary change in the structure of our society, brought about by this fourth industrial revolution based on data, really calls into question a lot of the protections that we thought we had.

I hope the Minister will take and grab hold of what was said in introducing this Bill. We are attempting in these amendments, particularly in Amendment 4A, to meet a real and genuine concern of ordinary people who are perhaps not as clever as the noble Lords, Lord Pannick, Lord Lester, and others, but who have a concern about the abuse of power. There has been no sense of shame or regret. I understand and have been passionate all my life about the defence of the freedom of the press, but I wish that the press did not rush so quickly to scream, “They’re trying to curb the freedom of the press”, when all that the press has done since Leveson is try to sabotage any proper press regulation. I worry about saying, “Well, it will stop various parts of our society using this new data”, without seeing and recognising the huge amount of evidence already of massive abuses of data which impinge on our very democracy. I felt it worth saying, even if I had to listen to the lawyers, that the layman also has a voice in this, and we have a real duty to make sure that this legislation is up to the task presented by the new data world.

Photo of The Earl of Lytton The Earl of Lytton Crossbench

I realise that, in rising to speak on this particular part of the Bill, I depart slightly from the purpose of the noble Lord, Lord Stevenson—but I thank him for raising the issue all the same.

Of course, we are dealing with the overview of the Bill. The noble Lord, Lord McNally, almost wrote my introduction. What has worried me for some considerable time, notwithstanding the Bill’s provisions that provide for data subject to error correction, is the manifest inclusion of data in the data processing function, which is broadly drawn—namely, the inclusion of information that is knowingly false or recklessly included in that process, and which can affect the life chances of individuals. We know of significant and high-profile circumstances in which false information has been included and has either affected a significant class of people or has seriously damaged the life prospects of individuals.

Given that the collection of data is part of the processing function, it seems to me that very little is being said about responsibility for those sorts of errors—in other words, the things that one could or should have realised were incorrect or where there was a disregard for the norms of checking information before it got into data systems. We heard at Second Reading how difficult it is to excise that information from the system once it has got in there and been round the virtual world of information technology.

Could the noble Lord, Lord Stevenson, or the Minister in replying, say whether there is anything apart from the Bill—I do not see it there at the moment—that enables there to be some sort of sanction, for want of a better word, against knowingly or recklessly including data that is false and which affects the life chances and prospects of individuals because it is capable of being identified with them and can be highly damaging? That is something that we may need to look at further down the line. If I am speaking in error, I shall stand corrected.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I say to my noble friend Lord McNally that it is even worse having people say to you, “You’re a lawyer, you must understand this”, when too often you do not.

I have a question for the Minister. Am I right in thinking that the Charter of Fundamental Rights will apply to all member states after Brexit? Is it not the objective that we are on all fours with them as other users of data and, therefore, if there is no provision such as the ones that we have been debating contained in the Bill, how will that affect the adequacy arrangements?

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, I want to say a couple of words about privacy. A very important basic point has been raised here. I am not going to argue with lawyers about whether this is the right way in which to do it, but the right to privacy is something about which people feel very strongly—and you will also find that the Open Rights Group and other people will be very vociferous and worry about it, as should all of us here. When we go out and do things on the internet, people can form some interesting conclusions just by what we chance to browse on out of interest, if they can record that and find it out. I became very aware of this, because I have been chairing a steering group that has been producing, along with the British Standards Institution, a publicly available specification, PAS 1296, on age verification. It is designed to help business and regulators to comply with Section 3 of the Digital Economy Act, which we passed just the other day, which is about protecting children online. The point is to put age verification at the front of every website that could be a problem. We want it to be anonymous, because it is not illegal for an adult to visit sites like that; if it was recorded for certain people in certain jobs, it could destroy their careers, so it must be anonymous. So a question arises about trying to put in the specification a right to privacy.

One thing that we have to be very careful about is not to interpret laws or regulations or tread on the toes of other standards. Therefore, when this Bill and the GDPR are passed, we must make sure that people processing any of that material ensure that any data is kept completely secure, or anonymised, or is anonymous in the first place. Websites, first of all, should not know the identity of a temporary visitor when they get verified—there are ways of doing that—so that there are rights to privacy. The thing about the right to privacy is that it is a right that you, the individual, should have. The GDPR and this Bill are about how you process data; in other words, it is about what you do with the data when you have it. The legislation builds in lots of safeguards, but there is nothing that says, when you decide what data to keep or whatever it is, that people should have a right to know that it will not be revealed to the general world.

The question is where we should put it in. People used to think that Article 8 of the European Convention on Human Rights covered them, but I realised just now that it covers only your relationship with Governments. What about your relationship with other corporates, other individuals or ordinary websites? It should cover everybody. So there is an issue here that we should think about. How do we protect ourselves as individuals, and is this the right place to do it? I think that this is probably the only place where we can put something in—but I leave that to the very bright lawyers such as the noble Lord, Lord Pannick, to think about.

Photo of Lord Clement-Jones Lord Clement-Jones Chair, Artificial Intelligence Committee 4:00 pm, 30th October 2017

My Lords, I remind the Committee that this is an intensely practical issue. We have managed to lure many of our learned noble Lords from their chambers today—so clearly it has been a fairly expensive afternoon. I am only a humble solicitor and I tend to focus on what is practical and necessary for those whom we advise. The fundamental basis of these amendments is the concern in many sectors—manufacturing, retail, health, information technology and financial services in particular—that the free flow of data between ourselves and the EU continues post Brexit with minimum disruption. With an increasingly digital economy, this is critical for international trade.

We have been briefed by techUK, TheCityUK, the ABI, our own Lords EU affairs sub-committee, and the UK Information Commissioner herself. They have persuasively argued that we need to ensure that our data protection legislation is ruled as adequate for the purposes of permitting cross-border data flow into and out of the EU post Brexit. The first question that arises is: will the Government, even before any transition period, start the process needed to obtain an adequacy decision from the EU before we arrive at the status of a third country for EU data adequacy purposes?

However, as the Committee has heard today, if an adequacy ruling is to be sought, a major obstacle has been erected by the Government themselves in the European Union (Withdrawal) Bill, which makes it clear that the European Charter of Fundamental Rights will not become part of UK law as part of the replication process. Many noble Lords have spoken of their fears about the interaction with Article 8 of the charter, yet this article, relating to the protection of personal data, underpins the GDPR. How will we secure adequacy without adhering to the charter? Will the Government separately state that they will adhere to Article 8? We are not trying today to confer “special status”, in the words of the noble Lord, Lord Faulks, on Article 8. The wording of the amendment reflects Article 8, but it is designed to create certainty, post Brexit, for the sectors of business which I mentioned earlier.

Let us not forget that the EU Select Committee heard from witnesses who highlighted the ongoing role of the European Court of Justice and the continued relevance of the Charter of Fundamental Rights in relation to adequacy decisions. The amendment is not frivolous: it is essential to underpin an adequacy decision by the EU post Brexit. Does the House really want to put that decision at risk? I am sure that it does not. Whether now or in the future, we need to pass this kind of amendment. I look forward to hearing what the Minister has to say, which will determine whether or not the House divides.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

My Lords, when I came into the Chamber, I had not the faintest intention of speaking in this debate. I do so, above all, for one reason: not because I am opposed to the amendment, although I am, very substantially, for the reasons given by the noble Lord, Lord Pannick. I do so because, in my experience, it is very unusual nowadays to vote at the outset of Committee stage on so fundamental a question as that raised by the amendment. It is surely yet more unusual—spectacularly so—to do so on a manuscript amendment filed this morning, which none of us has had sufficient time to deal with, on a very tricky area of the law, which so fundamentally alters the original amendment. As we have heard, that amendment was completely hopeless. The noble Lord, Lord Lester, described it as “constitutionally illiterate”. At least this one tries to introduce the concept of a balanced right which previously was missing.

It is true that I come from a different tradition where you do not vote on anything or decide anything unless you have heard the arguments. I rather gather that there may be a whipped vote on the other side, so the amendment is going to be voted on by noble Lords who have not heard the arguments of the noble Lords, Lord Pannick, Lord Faulks and Lord Lester, and who do not recognise the difficulties and the fundamental importance of this amendment. I seriously urge that it is not pressed to a Division today.

Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

My Lords, I am grateful to all noble Lords who have spoken, many of whom do not appear to support these amendments. I particularly thank the lawyers in the House, who have instructed us on the legal position. I feel slightly like the lay person who was talked about, which I am, I hasten to add.

On a political view, it is important to remember that only three weeks ago at Second Reading it was clear that the Bill was widely supported across the House. Many noble Lords highlighted areas where further scrutiny and perhaps improvement were desired, but the House was unanimous in the view that data protection laws needed updating, that the general data protection regulation standards were the right standards, and that we must do everything to maintain future free flows of data. We shared those conclusions because we understand the role and value of data in our digital world and how it is the basis of delivering education, social mobility and economic advantage. That is why it is so sad that in this first group of amendments, on the first of seven days of Committee, for a Lords starter Bill, the opposition parties have threatened to suspend the usual business arrangements whereby we can debate in Committee, meet subsequently outside the Chamber and often come to agreement before the Bill leaves our House—an arrangement which does not prevent votes when they are needed, but which has worked well in the past. I urge noble Lords not to put this at risk. The Data Protection Act has stood the test of time because it was not a partisan piece of legislation, and we must not allow this Bill to become one.

Many noble Lords have said that these amendments are made in good faith to ensure that the UK is given a data protection adequacy agreement by our largest trading partner. This is the right ultimate objective, but it is the wrong route to get there. Contrary to the charge of the noble Lord, Lord Stevenson, we have not forgotten the importance of a free flow of data. In fact, ensuring we maintain a free flow of data is our number one priority, and we want to achieve that from the moment of Brexit, not wait to become a third country and then start the application process for adequacy. I direct those remarks especially to the noble Lord, Lord Clement-Jones. That is why last year we committed to ensuring that the UK adopts GDPR standards. That is why in August we published our plans and ambitions for the free flow of data once we leave the EU. That is why we have presented this House with this Bill: a Bill which builds a comprehensive regulatory system for personal data that covers everything that could be scrutinised in future adequacy negotiations, including areas which are not currently subject to EU jurisdiction. That answers the question of the noble Baroness, Lady Hamwee, on adequacy and the point made by the noble Lord, Lord Clement-Jones.

In the past, 12 countries have negotiated adequacy agreements with the EU Commission, including Canada, Israel, New Zealand and the USA. None of these was forced by the EU Commission to put the charter into their law in order to obtain adequacy. It is not a requirement and it is peculiar to suggest that it will be. It is a myth that we need this amendment to secure a future agreement. Why is that? The GDPR itself, which will become part of our law, says in Recital 4:

“This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data”.

Recital 173 says:

“This Regulation should apply to all matters concerning the protection of fundamental rights and freedoms vis-à-vis the processing of personal data”.

The noble Lord, Lord Stevenson, was reported over the weekend to be claiming that the Government were scaremongering. We were not. We were deadly serious about the risks, so I am delighted that the noble Lord has now recognised that Amendment 4 needs further thought. What a pity, therefore, that he was unable to discuss it with the Government.

I listened to the noble Baroness, Lady Ludford, who addressed the original Amendment 4. The problem, which I think has been alluded to, is that subsection (3) of the proposed new clause creates an absolute unqualified right to data protection. As attractive as that sounds, it is fatal, for two reasons. First, data protection is not an absolute right, as many noble Lords have said, and the GDPR says it explicitly, too:

“The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality”.

Secondly, both the GDPR and the Bill create a number of exemptions from data rights, which we will debate over the next few weeks. However, while we may disagree on some exemptions, I think that we all agree on the important ones. Terrorists must not be given unrestrained access to information held about them by the security services. Scientists must not usually be prevented from advancing research and furthering understanding. Therefore, the original Amendment 4 creates a risk at precisely the time we need reassurance.

However, Amendment 4A is a welcome improvement. We received this amendment just before noon today. Data protection is not the simplest area of our law, and at Second Reading many noble Lords commented on the complexity of the subject. It would be irresponsible of the Government to accept an amendment of this sort with just a few hours to consider it. What does it mean for future data flows and trade? How does it interlock with the rest of our legislation on information rights? What will the courts make of it?

At best, Amendment 4A is unnecessary or may not achieve what it seeks to achieve. Two particular problems with it were mentioned by the noble Lord, Lord Pannick. First, it has no value, and it only creates legal confusion. Secondly, subsection (4) of the proposed new clause is unwise. Rights often conflict; the Bill and the Human Rights Act manage those conflicts, while subsection (4) does not. At worst, as my noble friend Lord Faulks, outlined, it may have unintended consequences which nobody has been able to consider. Our initial analysis is similar to that given by the noble Lord, Lord Pannick, that Amendment 4A probably does very little. It does little other than summarise what the Bill does. The Bill protects personal data rights, and Amendment 4A reminds us of this. None the less, with so much at stake, we must give this amendment full and careful legal analysis.

The noble Lord, Lord Stevenson, has been placed in a difficult position. Labour is in a muddle over this. But that is exactly why we do not usually vote in Committee. This stage is for resolving muddles and for understanding the issues. It is not the stage for tabling amendments on the day and voting on them hours later, without even discussing it with the Government. I cannot see how this is a service to the House, which prides itself on careful reflection.

The noble Lord, Lord Stevenson, reminded us at Second Reading about the number of Bills that he and I have worked on together. He said that this was the sixth. I pay tribute to the careful, detailed—and sometimes even enjoyable—scrutiny he has given. We have had many useful meetings. Today is the first day in Committee and the first group of amendments on the Bill. We should continue with the positive spirit that we have built together, setting out our arguments and concerns. We can continue to meet outside the Chamber, and I and the Bill team are always happy to listen to and meet other interested noble Lords. On Report, we can reflect and, where we disagree, we can divide.

Therefore, I hope that noble Lords will see that now is not the time and these are not the amendments on which we should divide at this stage. They are unnecessary and they may be deficient. This Bill is essential for our social and economic future, and we risk wrecking it at the first hurdle. I therefore ask the noble Lord to withdraw the amendment.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords) 4:15 pm, 30th October 2017

My Lords, I thank all those who have contributed to this debate—at some personal cost, I understand. There are points that we will certainly reflect on as we read Hansard.

I shall start with a slightly unusual point. I want to commiserate with the Minister for the unfortunate loss of his data just before he came into the Chamber this afternoon. His speaking notes and apparently much other data were stolen from him. That just shows the sorts of difficulties that one has with data, privacy and the issues that we have been talking about. I am surprised that he did not mention it, but he did not and I can only assume that things have worked out all right. However, if he wants help in drafting the personal victim statement, we will be very happy to meet him outside the Chamber on a number of occasions if that will be of assistance.

I do not have much luck with my drafting. I seem to recall being in this place only a few months ago and being coruscatingly attacked by a Cross-Bencher who thought that I had got a lower second with an amendment that I put forward to the higher education Bill. Mind you, I had quite a good result on that Bill. It was amended on the first day in Committee and that seemed to concentrate the minds of Ministers rather effectively. Therefore, I do not agree with those who have felt that this is a constitutional absurdity. In this House we have always reserved the right to vote “inappropriately” at any point, and Committee is one of those occasions. I am not saying whether we will do that today; I am just saying that it is not barred and it often has a purpose to serve.

However, the general tenor of the responses has been that we should not rush this. I was particularly pleased that the Minister suggested that we should meet outside the Chamber to discuss this issue, possibly reach agreement on it—those were his words—and perhaps come back on Report. I should remind him that Amendment 4 was tabled three weeks ago and no invitation to such a discussion reached my ears, so I am a bit surprised. The amendment was published and was available, and it could have been discussed. The fact that we are not going to move it today is slightly irrelevant but it raises all the issues that we are now engaging with. Indeed, at the meeting only last week, we did not really get on to the discussion about what we are about—we talked about other matters.

However, I do not want to fall out with the Minister because I enjoy working with him. Six Bills may seem a lifetime to many people but it has been a time enlivened by the ability to talk inside and outside the Chamber and to reach agreement. I hope that that is a genuinely meant proposal and, if it is, I will consider it very carefully.

My noble and learned friend Lord Goldsmith pointed out a really important issue. As I said in my speech—he picked it up and exemplified it—in order to achieve what the Government want to do, we need a combination of the rights that exist and the statutes that deliver the particularities of the issues concerned. I take on board all the points that have been made about drafting and the inability to do so, and I will reflect on those. However, if we have the right objective, which is to ensure that that balance is available to the people of the United Kingdom and that it will support our businesses in the future, surely we have a duty to make sure that it is delivered to a final conclusion and, if necessary, voted on.

In passing, I observe that it is interesting that the Minister had to resort to the recitals to the GDPR to be convincing about the fact that the GDPR has the effect of bringing the rights in the charter into the discussions about data processing. That is amusing because one very striking thing about the regulation, apart from the fact that we do not have it in front of us to discuss it, is that, in the form in which it will appear in law in the United Kingdom at the end of this process, the recitals will not be part of it. Therefore, his reliance on them is ironic to the point of being rather difficult to accept, but he made points of substance, so I think we will move over that.

Despite the rightful criticisms, there is a general feeling across the Committee that we need to do a bit more work on this. I think that we are on to something that is important enough to spend time on, and we are prepared to do that. We do not think that we are in a muddle on this—we think that there is an issue—but I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 1 agreed.

House resumed.