8. Legislative Consent Motion on the Data Protection and Digital Information Bill

– in the Senedd at 6:55 pm on 14 May 2024.

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Photo of Elin Jones Elin Jones Plaid Cymru 6:55, 14 May 2024

(Translated)

The next item will be the legislative consent motion on the Data Protection and Digital Information Bill, and I call on the Cabinet Secretary for Economy, Energy and Welsh Language to move the motion. Jeremy Miles

(Translated)

Motion NDM8579 Jeremy Miles

To propose that the Senedd, in accordance with Standing Order 29.6, agrees that provisions in the Data Protection and Digital Information Bill, in so far as they fall within the legislative competence of the Senedd, should be considered by the UK Parliament.

(Translated)

Motion moved.

Photo of Jeremy Miles Jeremy Miles Labour 6:55, 14 May 2024

(Translated)

Thank you, Llywydd. I move the motion regarding the Data Protection and Digital Information Bill put forward by the UK Government, and the way those provisions that fall within the legislative competence of the Senedd will be considered.

Through this Bill, the UK Government seeks to update and simplify the data protection framework of the UK, with the aim of reducing burdens on organisations, whilst maintaining, at the same time, high standards of data protection. Although most of this Bill is reserved, there are a number of provisions within the legislative competence of the Senedd, as has been noted in the four memoranda to the Bill. I'd like to thank the committees for their considerations of those memoranda that have been laid.

Photo of Jeremy Miles Jeremy Miles Labour 6:56, 14 May 2024

Llywydd, whilst I welcome the Bill overall, it's disappointing that we are in a position where the UK Government is seeking consent from the Senedd to a Bill that fails to reflect the legislative competence of the Senedd and the principles of devolution. This is particularly disappointing given the broadly shared agreement on the need for Senedd consent. These failures are clearly demonstrated in the approach that the UK Government has taken in respect of the new national underground asset register provisions, introduced into the Bill last November. 

As currently drafted, these provisions will remove existing regulation-making powers under section 79 of the New Roads and Street Works Act 1991 from the Welsh Ministers, transferring them to UK Ministers. I am sure that Members will agree that the removal of a devolved executive function from Welsh Ministers without agreement, and without even prior consultation, is completely unacceptable.

Extensive discussions at both ministerial and official level have been held with the UK Government since the Bill's introduction, focused on the devolved implications of a number of provisions within the Bill. These discussions concluded with the offer from the UK Government of a package of targeted amendments that they would be willing to make, should Welsh Ministers deem them sufficient to recommend consent to the Bill in the Senedd. 

However, the proposed amendments represented a significant lack of movement by the UK Government beyond the offer of a number of consultation provisions, with the UK Government continuing to pursue taking powers in devolved areas without even a consent role for Welsh Ministers. We have long disputed the UK Government's suggested use of consultation provisions as a form of constitutional safeguard in place of binding consent mechanisms. This is a position that both the Welsh Government and the Senedd have consistently taken in respect of UK Bills—a position, incidentally, that the UK Government is well aware of. As such, Ministers do not consider the proposed amendments to be sufficient and therefore we do not recommend the Senedd consent to this Bill, as set out in the supplementary legislative consent memorandum laid on 16 April. Furthermore, the approach taken by the UK Government in putting forward these proposed amendments as a final package on the condition that we must agree to all of them, or none would be tabled, is entirely contrary to the principle of the Sewel convention that Parliaments should not legislate on devolved matters without the consent of the Senedd. 

We remain of the view that amendments should be made to this Bill that respect the legislative competence of the Senedd, that respect the executive functions of the Welsh Ministers, and that reflect the existing devolution settlement. We have also been absolutely clear with the UK Government that amendments should be made to the new national underground asset register provisions to ensure that Welsh Ministers retain their existing regulation-making powers. 

Whilst the current approach of the UK Government is not consistent with the principles of devolution, there is still time for the UK Government to address our concerns in order that we can achieve a satisfactory resolution that would then enable us to recommend the Senedd consent to the Bill. Should this happen, further amendments made to the Bill would then need to be considered by the Senedd. However, Llywydd, until that time occurs, I recommend to Members that they do not support the motion. 

Photo of Elin Jones Elin Jones Plaid Cymru 6:59, 14 May 2024

(Translated)

The Chair of the Legislation, Justice and Constitution Committee, Sarah Murphy

Photo of Sarah Murphy Sarah Murphy Labour

Diolch, Llywydd. In three out of the past four weeks, I have spoken in this Chamber as Chair of the Legislation, Justice and Constitution Committee during legislative consent debates, such is the extent to which Bills in the UK Parliament are making provision in devolved areas. My committee has reported three times on the legislative consent memoranda laid by the Welsh Government on the Data Protection and Digital Information Bill. Our third report, on memorandum No.4, was laid yesterday afternoon, as the memorandum itself was only laid just over two weeks ago. My comments this afternoon will focus on three key issues, and I will direct Members and others to our reports for our detailed views and recommendations.

So, several provisions in the Bill confer solely upon the Secretary of State broad regulation-making powers that may be exercised in devolved areas. Others also confer equivalent delegated powers upon the Treasury. Therefore, in our latest report, we have stated our agreement with the Cabinet Secretary that such delegation is inappropriate. For example, clauses 86 and 88 confer various broad regulation-making powers on the Secretary of State and the Treasury in relation to customer data and business data. Such regulations could capture a wide array of businesses, and have the potential to impact on devolved areas, with no role for Welsh Ministers. Thank you to the Cabinet Secretary for sharing with us the exchange of letters between the Welsh and UK Governments. In one of the letters, the Minister of State makes it clear that the UK Government intends that the Bill will enable the better use of data in health and social care. This is extremely significant. Health and social care data have been listed in this letter, and our committee only became aware of it yesterday.

We have strong concerns about the constitutional impropriety of the provisions in the Bill for a national underground asset register. Through these provisions, powers currently delegated to Welsh Ministers under section 79 of the New Roads and Street Works Act 1991 are being transferred to the Secretary of State, with no reasonable justification. This amounts to the removal of a devolved Executive function. So, as a committee, we support the Cabinet Secretary’s view that this is an inappropriate reversal of devolution. In addition, these provisions in the Bill for a national underground asset register will result in the revocation of Senedd-approved legislation in the form of the Street Works (Records) (Wales) Regulations 2005. Again, this is inappropriate.

Moving on to the provisions in the Bill relating to digital verification services, on this point, we disagree with the Welsh Government’s position on the requirement for legislative consent in respect of these provisions. But this is because, while the Welsh Government has maintained from the beginning that consent was required for these provisions, in February, the UK Government wrote to the Welsh Government stating that its own devolution guidance note advised consent should be sought when provisions in one of its Bills conferred or imposed reserved functions on a devolved Welsh authority. This is despite the UK Government’s overall view that these functions are reserved and its own acknowledgement that the Senedd’s Standing Orders do not cover situations where reserved functions are conferred on devolved Welsh authorities. However, the UK Government’s devolution guidance note is not a relevant consideration for the purpose of the tests in the Senedd’s Standing Orders. Memorandum No. 4 is laid before the Senedd under Standing Order 29, and it is confusing to make reference to criteria that do not apply to the Senedd’s legislative consent process. When we asked the Welsh Government for its view on the different criteria and approaches to legislative consent that appear to be applied by the UK Government, the Welsh Government and the Senedd’s Standing Orders, we were told that the Welsh Government is committed to the Sewel convention, and, while that statement is to be welcomed, it does not offer the explanation that we hoped for. The criteria still to us remain opaque.

Finally, there are some concerns that the Bill poses a risk to the UK's current data adequacy decision. This is the pipeline through which the UK and the European Union share data. Its loss would have particular implications for Welsh trade and the economy. In memorandum No. 4, the Cabinet Secretary states that the Bill could trigger a review of the UK’s EU data adequacy status by the European Commission, and has the potential to lead to legal challenge in the Court of Justice of the European Union. As the committee with responsibility for international obligations, these views are stark and concerning, so we have asked the Cabinet Secretary if he could possibly provide more details, please.

In our most recent report, laid yesterday, we also asked the Cabinet Secretary to confirm if the Welsh Government considers the Bill should have implications for other international arrangements, such as the UK-US data bridge, established in 2023. And finally, I would like to note that the Cabinet Secretary offered more details in his opening remarks, and also thank you for your detailed correspondence with the committee throughout. Diolch.

Photo of Elin Jones Elin Jones Plaid Cymru 7:04, 14 May 2024

(Translated)

The Chair of the Culture, Communications, Welsh Language, Sport and International Relations Committee, Delyth Jewell.

Photo of Delyth Jewell Delyth Jewell Plaid Cymru

Diolch, Llywydd. Llywydd, my committee has reported on the first three memoranda for this Bill. It is with regret that I must report that time has been against us and we were not in a position to consider the fourth memorandum for a UK Bill that has serious and far-reaching implications for Wales. During our scrutiny of the Northern Ireland Protocol Bill, Members will recall that three of this Senedd's committees, including mine, emphasised the need for sufficient time for LCM scrutiny, particularly those with serious implications. Now, given the limited time available, we expected the Welsh Government to adopt a transparent and detailed approach to memoranda to assist us in our work. We've heard already that, yesterday, our committees were still receiving new information from the Welsh Government. Whilst we welcome this effort to share information, this situation is illustrative of the limitations of the consent process. That we receive information on the day of the reporting deadline and a day before today’s debate is surely undesirable for all of us.

Now, from the start, the Welsh Government has warned that this Bill poses a risk to the UK’s EU data adequacy decision. This crucial status, secured during Brexit, ensures the free flow of data between the UK and EU until June 2025. Now, whilst the Welsh Government could have provided a more detailed assessment on this calculation, as a committee, we nevertheless take any concerns raised about UK-EU relations extremely seriously. That the Welsh Government believes the Bill could adversely affect the UK’s data adequacy and, more broadly, the UK and Wales’s EU relations, is something that should concern all of us.

Llywydd, my committee is at the forefront of the Senedd’s work in finding the hinge points of our post-Brexit relationship with the EU. Now, we truly welcome the inclusion of analyses of the trade and co-operation agreement for this Bill, a commitment that was secured by our committee's international relations annual report, and that has borne fruit for this Bill. At the end of March, the European Commission noted four pieces of UK legislation that could affect the TCA’s operation. This Bill is one of them, alongside the Retained EU Law (Revocation and Reform) Act 2023 and the Safety of Rwanda (Asylum and Immigration) Act 2024. Now, were the outcome described by the Cabinet Secretary in memorandum No. 4 to materialise—were it to materialise—this Bill could lead to enforcement action by the EU’s Court of Justice. That would inevitably represent a serious setback in UK-EU relations.

During our Wales-Ireland inquiry, our Irish friends and neighbours told us that co-operation is inevitable; co-operation is a virtue and one which we take for granted at our peril. Llywydd, our porous boundaries demand co-operation, a series of choices to build and to nurture positive relations. As R.F. Kuang said:

'History isn’t a premade tapestry that we’ve got to suffer, a closed world with no exit. We can form it. Make it. We just have to choose to make it.' 

Photo of Carolyn Thomas Carolyn Thomas Labour 7:07, 14 May 2024

We discussed this Bill at committee, but I was really alerted to having the national underground asset register being added to it, and, apparently, it was added at the very last minute, so I was a bit concerned why it was added last minute. I have written, but I haven't had a response from the Secretary of State.

Our underground infrastructure is hugely complicated. It's a mix of pipes and cables, and it's managed by local authority street works teams, so, if any maintenance work needs to be done, they need to be consulted. I just know, from being a previous cabinet member for highways, how important it is and how important that we retain that right to take part in planning decisions regarding what's actually underground our roads. So, I'm really, really worried about this, that this would go to the Secretary of State for the roll-out and decision making when, really, it should be at a really local level, the underground asset register. And I know we do need it, but we need to be involved with every decision-making part of it, so I would encourage you to vote against this. Thank you.

Photo of Jeremy Miles Jeremy Miles Labour 7:09, 14 May 2024

(Translated)

Thank you, Llywydd, and thank you to all those who've contributed to the debate, including the committee Chairs.

Photo of Jeremy Miles Jeremy Miles Labour

In the contributions, Members have sought clarity and insight on two or three further areas, so I hope it will assist Members to know that it is our view that, in relation to data adequacy, a number of provisions in the Bill are considered to be challenging and do have the potential of a review by the commission, or legal challenge in the Court of Justice of the European Union, and these include provisions that are seen to weaken the independence of the Information Commissioner and undermine individual rights. To the point that Sarah Murphy was making in her contribution, the Bill amends the statutory definition of personal data, and there is a risk that a broader range of health and social care data will be included in the scope of free trade agreements. We are aware, as Members will generally be aware, that the public have concerns around their health data being used for anything other than the provision of care, and including this data within the scope of free trade agreements could undermine public trust. The UK maintaining its data adequacy is, of course, vital, and I'm disappointed with the ongoing refusal of the UK Government to share a copy of its risk assessment on this with us, and I'll be reviewing the finding of the House of Lords’s European Affairs Committee inquiry on data adequacy, which is currently under way.

Delyth Jewell asked about the level of detail in LCMs, and I accept that there is a clear tension between the two-week period that the Standing Order provides for provision of LCMs and the ability to provide detailed information. This is, I think, a feature of the fact that the process to which we have to respond is one that takes no regard of the Senedd's own timetable and is focused very much on activities in the UK Parliament. The example that Carolyn Thomas gave was very relevant to this, in relation to the underground asset register provisions. The UK Government did not make us aware of the proposed changes to Welsh Ministers’ powers until the day before the amendments were tabled in Parliament, which, I'm sure Members will agree, is incredibly disappointing.

Finally, on the point that Delyth Jewell made in relation to the TCA and the assessment that her committee has undertaken, in my view the changes to the UK data protection framework proposed in the Bill, as it's drafted, are, I think, unlikely to impact on the UK’s compliance with the TCA, because the data protection provisions are generally broad and high level. However, we are concerned that the Bill may signal the beginning of the UK’s divergence from the data protection regime that is currently in place across the EU and, needless to say, this would have the potential to undermine data protection provisions in the TCA across a range of policy areas and the potential loss, as a consequence, of data adequacy. So, Llywydd, as a conclusion, as a result of the constitutional concerns with the Bill, I ask Members of the Senedd to not consent to this Bill. Diolch yn fawr.

Photo of Elin Jones Elin Jones Plaid Cymru 7:12, 14 May 2024

(Translated)

The proposal is to agree the motion. Does any Member object? [Objection.] There are objections. We will therefore defer voting until voting time, which is now. And unless three Members wish for the bell to be rung, I will proceed directly to the vote.

(Translated)

Voting deferred until voting time.