Lawfulness of processing: public interest etc

Data Protection Bill [Lords] – in a Public Bill Committee at 10:15 am on 13th March 2018.

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Photo of Daniel Zeichner Daniel Zeichner Labour, Cambridge 10:15 am, 13th March 2018

I beg to move amendment 140, in clause 8, page 5, line 23, after “includes” insert

“but is not limited to,”.

Photo of David Hanson David Hanson Labour, Delyn

With this it will be convenient to discuss amendment 141, in clause 8, page 5, line 29, at end insert

“or

(e) the exercise of research functions by public bodies.”

This amendment would ensure that university researchers and public bodies with a research function are able to use the ‘task in the public interest’ lawful basis for processing personal data, where consent is not a viable lawful basis.

Photo of Daniel Zeichner Daniel Zeichner Labour, Cambridge

It is a pleasure to serve under your chairmanship, Mr Hanson. I shall begin by declaring an interest: I chair the all-party parliamentary group on data analytics, the secretariat to which is provided by Policy Connect. In that capacity, I have had the pleasure of having many discussions about GDPR with experts over the past couple of years. I reflect on what a very good process it is that British parliamentarians in the European Parliament are able to intervene on such matters at early stages, to make sure that when the legislation finally comes to us it already has our slant on it. That may not be possible in future when we come to discuss such legislation.

I represent a university city, so research is a key part of what we do. It is on that basis that I tabled the amendments, and I am grateful to the Wellcome Trust and the Sanger Institute, which have given me advice on how the amendments would help them by providing certainty for the work that they do. The purpose of amendment 141 is to ensure that university researchers and public bodies with a research function are able to use what is called the “task in the public interest” lawful basis for processing personal data, where consent is not a viable lawful basis. I apologise for going into some detail, but it is important for universities and researchers that there is clarity.

As the Bill is drafted, clause 8 provides a definition of lawfulness of processing personal data under GDPR article 6(1)(e). Subsections (a) to (d) of clause 8 set out a narrow list of activities that could be included in the scope of public interest. I am told that that list is imported from schedule 2(5) of the Data Protection Act 1998, but I am also told that the drafters have omitted a version of the final and most general sub-paragraph from that list, which reads:

“for the exercise of any other functions of a public nature exercised in the public interest by any person.”

It is speculated that that may have been taken out of the list to tighten up, and to avoid a tautology in defining, “public interest”, but the worry is that taking it out has made the clause too restrictive. The explanatory notes indicate that the list in clause 8—that is, subsections (a) to (d)—is not intended to be exhaustive, but the Wellcome Trust and the Sanger Institute worry that it has narrowed the public interest terminology to a very narrow concept, which will be confined to public and judicial administration.

There was a very lengthy and very good debate in the other place on this matter. One of our universities’ main functions is to undertake research that will often involve processing personal data. In some cases, GDPR compliant consent, which may seem the obvious way of doing it, will not be the most appropriate lawful basis on which to process that data. It is therefore really important that an article 6 lawful basis for processing is available to university researchers with certainty and clarity.

The Government have included reference to medical research purposes in the explanatory notes, but the worry is that that does not necessarily have weight in law and the reference excludes many other types of research that are rightly conducted by universities. This is not a satisfactory resolution to the problems that are faced.

The amendment tries to enable research functions to be conducted by public bodies such as universities without doing what the Government fear, which is to broaden the definition of “public interest” too far. The wording retains the structure of the DPA list, from which the current clauses were imported, but it narrows it down in two ways. It specifies the purpose of processing, that is, research functions, which must be the reason for the processing and specifies who is doing the processing—the basis of it only being available to public bodies, as defined in the previous clause.

We are aware that the Government are worried about adding further subsections to the list. I think they said that it could open the floodgates in some way. However, I am told that there is not really any evidence to suggest that the current wording of paragraph 5 of schedule 2 of the Data Protection Act, which has a very broad notion of public interest, has in any way “opened the floodgates”. To give some sense of the concerns that have arisen, the processes by which university researchers seek permission to do things are quite complicated. Some of the bodies have already issued guidance. I am told that the Health Research Authority issued guidance on GDPR before Christmas. It advised that a clause on using legitimate interests should be included in the Bill.

There is confusion in the research sector, and there is a wider worry that if this is not clear, it is open to legal challenge. While some institutions will be able to take that risk, the worry is that smaller research bodies would conclude that, given the lack of clarity, it would not be worth taking that risk. I hope that the Government will think hard about the suggestion. It comes from the research institutions themselves and would give clarity and reassurance. I hope that the Minister will accept the amendment.

Photo of Liam Byrne Liam Byrne Shadow Minister (Digital, Culture, Media and Sport) (Digital Economy)

I want to say a few words in support of my hon. Friend and these important amendments. I think there is an acknowledgement on both sides of the Committee that if we are to prosper in the world that is coming, we are going to need to increase the amount of money that we spend on research and development and make sure that a research-driven economy reaches every corner of the country.

The world of innovation and research is changing very quickly. I think it is next year that China becomes the world’s largest science spender for the first time in several centuries. If we are to compete in this new world, we need to invest more in our R&D base. The Government have made some helpful commitments in this area. Their proposals are not quite as ambitious as the Labour amendments, but none the less all progress is welcome.

I hope that the Minister will reflect on the reality—the way in which research is conducted in our country is changing. In the past, I have called that a shift from the cathedral to the campus. Once upon a time, big firms put a lot of people in a large building and prayed for the best. Now, they are building business parks and creating ecosystems of innovation where they may have a shared research and development facility, otherwise known as a university. There may be big international companies with global reach organised around them, but there are also scores of much smaller firms. They may be as small as a couple of post-docs in a shared lab. If we look at facilities such as BT at Dashwood Park, the Crick Institute or GSK in Stevenage, we see big global companies with hundreds of smaller companies around them which are undertaking research with much greater speed and much lower risk, but with an impact that could change the world.

We cannot jeopardise the conduct of that research. My hon. Friend the Member for Cambridge is right to point out that where there is doubt about the law, or the powers and freedoms of research firms, there is a risk that such firms simply will not undertake such work in the UK, and instead will seek relationships either with global companies or, increasingly, with universities that have R&D facilities elsewhere. We want to create the world’s best place to undertake new science, and that means having a research regime that is the best in the world. We therefore need a data protection regime that helps and does not hinder, which is why the Government should accept these carefully crafted amendments.

Photo of Margot James Margot James The Minister of State, Department for Culture, Media and Sport 10:30 am, 13th March 2018

I recognise the expertise of the hon. Member for Cambridge in this area, and I am glad of the opportunity to debate the matter fully with him, as I am conscious that I did not address the points he made in his good contribution on Second Reading. We all agree on the importance of scientific research, and one of the things I am most proud of in the industrial strategy is the huge increase in public funding for research and development. We welcome the interest in the Bill shown by the Wellcome Trust and other organisations. They are concerned that universities processing personal data in the context of ground-breaking medical research will not have a clear legal basis for doing so. The Government recognise how important that is, but we believe that the amendment is not necessary and that there is no need specifically to mention the research functions of public bodies in clause 8.

It might be helpful if I explain what clause 8 is designed to do. If an organisation is to process personal data, it must have a legal basis for doing so under article 6 of the GDPR. The clearest basis is where the data subject has given his or her consent to the processing, but article 6 also permits processing without someone’s consent in certain circumstances, including where

“processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller”

Clause 8 helps to explain the meaning of “public interest tasks” by providing a list of processing activities that fall into that category. The list was always intended to be non-exhaustive, which is why we have used the word “includes”. In law, that word is always assumed to introduce a non-exhaustive list, and we have tried to make that point as clear as possible in the explanatory notes.

Additional phrasing in the Bill, such as that proposed in amendment 140, would add nothing to what is already in the clause’s interpretation under English law, and it would risk confusing the interpretation of the many other uses of that word elsewhere in the Bill. Given the non-exhaustive nature of the list, the fact that publicly funded research is not mentioned specifically does not mean that the research functions of public bodies will not be considered as “public interest tasks”, thereby providing a legal basis for universities to process personal data.

The Information Commissioner’s Office said:

“Universities are likely to be classified as public authorities, so the public task basis is likely to apply to much of their processing”.

Its guidance goes on to give “teaching and research purposes” as one such example. Hon. Members will appreciate that the list could become very long and still not be conclusive if we included everything that the Government and the Information Commissioner’s Office consider amounts to a “public interest task”. Given those reassurances, I hope that the hon. Gentleman will not feel it necessary to press his amendment to a vote.

Photo of Daniel Zeichner Daniel Zeichner Labour, Cambridge

I thank the Minister for her kind words—particularly about Second Reading. I think that we were all puzzled about what was going on at about five minutes to 10; I am none the wiser. I am slightly disappointed by her response, because this is not a party political discussion. We all want to get to the same place. In many ways, the discussion we have just had is not that dissimilar from the previous one about educational institutions, schools and academies. There are many grey areas relating to what universities are, and what their status and that of the research bodies associated with them is. My worry is that if we just take the Minister’s reassurances rather than amend the Bill, the uncertainty to which I alluded—it is not my uncertainty; it is what staff at esteemed research institutions say they feel—will be a problem. We should try to improve the Bill to get the clarity we need.

Photo of David Hanson David Hanson Labour, Delyn

The hon. Gentleman needs to indicate to the Chair whether he wishes to withdraw the amendment or press it to a Division.

Photo of Daniel Zeichner Daniel Zeichner Labour, Cambridge

I think we will go to a vote, Mr Hanson.

Question put, That the amendment be made.

The Committee divided:

Ayes 8, Noes 10.

Division number 1 Caledonian Pinewood Forest — Lawfulness of processing: public interest etc

Aye: 8 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Margot James Margot James The Minister of State, Department for Culture, Media and Sport

I beg to move amendment 9, in clause 8, page 5, line 29, at end insert—

“( ) an activity that supports or promotes democratic engagement.”

This amendment adds a reference to processing of personal data that is necessary for activities that support or promote democratic engagement to Clause 8 (lawfulness of processing: public interest etc).

Since the Bill’s introduction, it has been brought to our attention by a range of stakeholders from all sides of the political divide that there is concern about how processing for the purpose of democratic engagement should be treated for the purposes of the GDPR. As my noble Friend Lord Ashton set out in the other place, the Government believe that there is a strong public interest in political parties and elected representatives and officials being able to engage with the public both inside and outside elections, which may sometimes include the processing of personal data.

Having considered the matter further since the debates in the other place, the Government have concluded that it would be prudent to include a provision in the Bill to provide greater clarity to those operating in the area of democratic engagement. Helpfully, clause 8 already provides high-level examples of processing activities that the Government consider could be undertaken on grounds of public interest if the data controller can demonstrate that the processing is necessary for the purposes of the processing activity. As a consequence of the importance that the Government attach to the matter, amendment 9 adds to that list

“an activity that supports or promotes democratic engagement.”

That term has been deliberately chosen with the intention of covering a range of activities carried out with a view to encouraging the general public to get involved in the exercise of their democratic rights. We think that that could include communicating with electors, campaigning activities, supporting candidates and elected representatives, casework, surveys and opinion gathering and fundraising to support any of those activities. Any processing of personal data in connection with those activities would have to be necessary for their purpose and have a legal basis. We will ensure that the explanatory notes to the Bill include such examples, to assist the interpretation of what this provision might mean in practice.

The amendment does not seek to create a partisan advantage for any one side or to create new exemptions from the data protection legislation. It is intended to provide greater clarity. It is also independent of any particular technology, given that in a short time we have moved from physical post to email, Twitter, text messages, WhatsApp, Facebook and so forth.

The Government are always open to suggestions of what else could be done to ensure legal and operational clarity for political parties and elected representatives. Further work might be needed to ensure that their current activities have the legal basis required to rely on the public interest condition. The Government will shortly engage with political parties via the parliamentary parties panel to discuss the matter further and in more detail.

Photo of Liam Byrne Liam Byrne Shadow Minister (Digital, Culture, Media and Sport) (Digital Economy)

I was surprised and not a little troubled that the Minister did not include the opportunity of creating Member-specific apps in her list—especially those which suck out the pictures from someone’s phone without their permission. Presumably that was not included in her list because that is already illegal.

I am grateful to the Minister for tabling the amendment and for her earlier correspondence with my noble Friend Lord Kennedy. She undertook to reflect on that correspondence and bring forward amendments. She helpfully set out a list of some of the activities that may be undertaken by a political party that fall within the ambit of the amendment. She gave a pretty comprehensive list, but will she put beyond doubt whether canvassing and collecting canvass returns were in her mind when she tabled the amendment and are therefore covered by the amendment? That would be extremely helpful.

The amendment is well intentioned. The health of our democracy is important to all parties. We look forward to the conversations that she will broker through the parliamentary parties panel.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

We, too, are grateful to the Minister for tabling the amendment and for her letter to you on 12 March, Mr Hanson, which has been shared with the Committee.

From our point of view, the description of democratic engagement as a new lawful basis for processing in the public interest, under article 6(1)(e) of the GDPR, is useful. In fact, there might even be an argument for including the non-exhaustive list, which I think is due to appear in the explanatory notes, in the Bill. Will the Minister think about that? I appreciate that it has been kept in very general terms.

In her letter, the Minister asked for views on whether the basis for processing data from electoral registers is currently appropriate as defined. Those registers are supplied to parties with the main condition that they are used for electoral purposes. The Law Commission, which recently reported on the review of electoral law, expressed the view that the legislation should be more precise about what that means. Again, the list in the letter that the Minister sent to you, Mr Hanson, looks like a good starting point for that.

The Electoral Commission has said that general political fundraising using the electoral register is not lawful, so it might be helpful to have that on the face of the Bill or in regulations. The main issue with the test of “for electoral purposes” is that every activity needs to be related to an election for it to be processed under the supplied conditions. In practice, parties engage in general campaigning, including issue-based campaigning, which is not necessarily directed at elections. In broad terms, we welcome the amendment and we make these points merely to take forward further debate.

Photo of Margot James Margot James The Minister of State, Department for Culture, Media and Sport 10:45 am, 13th March 2018

I thank the right hon. Member for Birmingham, Hodge Hill and his noble Friends for their constructive participation in the development of the amendment. He mentioned the app of the Secretary of State for Digital, Culture, Media and Sport; I assure him that it is compliant in every way with current data protection law and will be compliant with the provisions of the Bill. I commend my right hon. Friend for setting a new standard in the way that he communicates with his constituents.

I reassure the right hon. Member for Birmingham, Hodge Hill that canvassing and collecting canvassing returns are covered by the amendment. That is absolutely vital. I reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that it covers campaigning activity and communications between elections, concerning issues as well as elections. As I said in my short preamble, the detail of the matter can be further discussed at a meeting of the parliamentary parties panel and it is within everybody’s rights to contribute their thoughts to panel members for those important forthcoming discussions.

Amendment 9 agreed to.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9