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Data Protection Bill [HL] - Committee (4th Day)

Part of the debate – in the House of Lords at 4:30 pm on 15th November 2017.

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Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport 4:30 pm, 15th November 2017

My Lords, it is a great pleasure to speak on these amendments, which cover the applied GDPR. Before I address them directly, it is worth recalling that the purpose of the applied GDPR is to extend GDPR standards to those additional areas of processing that are outside the scope of EU law and not covered separately in Parts 3 and 4 of the Bill. The benefit of taking this approach is that it avoids relevant controllers and processors needing to adapt their systems to two different sets of standards, or even needing to know which set of standards they should be applying. However, if the need for such analysis arises, it is crucial that the data subjects and controllers and processors are clear about their respective rights and obligations.

In such circumstances, reference to text that contains concepts that have no meaning or practical application for processing out of scope of EU law will result in confusion and uncertainty. So, while the intention of the applied GDPR is to align as closely as possible with the GDPR, Schedule 6 adapts the GDPR’s wording where necessary so that it is clear and meaningful. It is important to remember that the GDPR does not apply to such processing, so the creation of equivalent standards under UK law is a voluntary measure we are making in the Bill.

In particular, paragraph 4 of Schedule 6—the subject of Amendment 113A—replaces references to such terms as “the Union” and “member state” with reference to the UK. This simply clarifies that, unlike the GDPR itself, the applied GDPR is a UK-only document and should be read in that context. References to “the Union” et cetera are at best confusing and at worst create uncertainty for the small number of controllers whose processing is captured by the applied GDPR. Paragraph 4 provides important legal clarity to them and, of course, to the Information Commissioner. The United Kingdom in this context refers to England, Wales, Scotland and Northern Ireland only, in accordance with Clause 193.

Paragraph 8, the subject of Amendment 114A, limits the territorial application of the applied GDPR so that it is consistent with that for Parts 3 and 4 of the Bill, as set out in Clause 186, without the EU-wide, and indeed extraterritorial, application of the GDPR itself. As we have touched on in a previous debate, the applied GDPR will apply almost exclusively to processing by UK public bodies relating to areas such as defence and the UK consular services. Controllers in these situations either are in the UK or, if overseas, are not offering goods and services to those in the UK. As such, there is simply no need for the applied GDPR to have the same EU-wide or extraterritorial application as the GDPR.

Article 9.2(j) of the GDPR provides for a derogation for processing of special categories of personal data for archiving and research purposes, and references the need to comply with the safeguards set out in Article 89 when conducting such processing. The Bill makes full use of this derogation, so paragraph 12(f) of Schedule 6, the subject of Amendment 118A, tidies up the drafting of Article 9.2(j) for the purposes of the applied GDPR so that, rather than setting out the need for derogation, it refers directly to the relevant provisions in the Bill.

Paragraph 27, the subject of Amendment 119A, removes certain requirements on the Information Commissioner relating to data protection impact assessments on the grounds that those provisions exist mainly or wholly to assist the European Data Protection Board in ensuring consistent application among member states. There is clearly no need for such consistency in respect of the applied GDPR—a document which exists only in UK law—and the Information Commissioner will in any case undertake very comparable activities in respect of the GDPR itself. Paragraph 46(d), the subject of Amendment 121A, simply makes further provision to the same end, both specifically in relation to data protection impact assessments and more broadly. I hope that, with those reassurances, the noble Lord will feel able to withdraw his amendment.