House of Lords
Monday 6 February 2017
Prayers—read by the Lord Bishop of St Albans.
Her Majesty The Queen’s Sapphire Jubilee
My Lords, on behalf of your Lordships’ House, I take this opportunity to congratulate Her Majesty the Queen on the 65th anniversary of her accession to the Throne.
Brexit: Customs and Border Staff
To ask Her Majesty’s Government what estimate they have made of the number of additional public employees needed to meet the requirements of Brexit, in particular in customs and border control.
My Lords, the White Paper published last week set out the Government’s priorities and the broad strategy for exiting the EU. There is a number of options as to how EU migration and customs checks might work once we have exited the EU. We are considering these options, so it would be wrong to set out a further position at this stage.
My Lords, half of Britain’s trade is currently within the single market, so presumably customs checks and the space needed for them will have to be considerably expanded. Two-thirds of visitors come from the EU and the EEA, so I assume that the long queues that we already have at the external border for people going through hard border controls will be immensely lengthened and that we will need to treble the number of border staff. Are the Government already beginning to plan for the extra space and staff they need? If they cannot recruit enough, perhaps we will need to recruit border agency people from eastern Europe.
My Lords, the Government will certainly be prepared, if need be, in the way that the noble Lord said. However, the advent of e-passport gates at airports has made it quicker to get through the border, and of course the facial recognition checks at those gates have proved to be very efficient.
My Lords, if there is a range of options, there must surely be a range of costs—guestimates—available to the Government. What are they? Perhaps the Minister can help me but I cannot recall the costs used by the Brexiteers during the referendum campaign. Perhaps she can refresh my memory.
My Lords, of course there will be a range of options, none of which am I in a position to cost or comment on today, but they will become clearer. I am sure that the noble Lord has read the White Paper on the broad principles as we go forward.
My Lords, does the Minister agree that removing exit checks from our borders in 1998 was a huge mistake? Does she also agree that, Brexit or no Brexit, we now need to bring back immediately exit checks to our borders so that we are on top of things from a security point of view and from the point of view of being in control of immigration, with EU and non-EU citizens being scanned in and scanned out? In fact, I could recommend a whole list of Indian IT companies that could do the job.
I thank the noble Lord. He is right about exit checks. They were reintroduced last year and will provide some very useful information, not least on immigration.
My Lords, can my noble friend tell me how many additional public employees are employed by the Government to answer questions from people who do not accept the result of the referendum?
The figures differ at various times. I can say to my noble friend—and I am sure he will agree with me—that we will be well equipped to deal with our borders when the time comes.
My Lords, what exactly do the Government mean when they say that under Brexit we will have control of our borders? Does it mean that people who should not do so will not enter this country? If so, how will the Government achieve that, bearing in mind that we are not in a position to stop illegal immigration at present—as the road haulage industry makes clear—despite the present level of co-operation with the French authorities?
My Lords, there is more than just the French authorities to consider, although we have worked very hard and in good co-operation with the French. Control of our borders means just that—control of who comes in and who goes out. However, I accept that no system is perfect.
My Lords, would not the introduction of ID cards be the cheapest way to try to deal with this problem? Would not the Government’s time be better spent looking at the proposals and seeing how effective they would be in introducing controls on our borders?
In short, no. We have moved beyond the ID card in terms of the amount of information we have on passenger movement. Technology now has almost negated the need for what the noble Lord talks about, which was quite some time ago.
My Lords, there has been a 25% reduction in funding per passenger for the UK Border Force since 2011. The Minister mentioned that e-gates—automatic gates—at airports for EEA nationals mean that the reduction in funding has not resulted in a lessening of security. Can she say what will happen when we leave the European Union and EEA nationals will no longer be subject to this, rather worryingly termed, soft border regime?
My Lords, the number of full-time Border Force employees has ranged from approximately 7,600 to 8,100 in the past few years. As I said earlier, there may have been a reduction perhaps last year in workforce because it is within that range but e-gates and other infrastructure improvements have improved the system. In 2016-17 we invested £68 million in capital for infrastructure improvements.
My Lords, have the Government worked out how much we will be saving by not having to send an endless stream of Ministers and their civil servants over to Brussels to nod through its useless and damaging legislation and by not having to enact it thereafter? Did not the British people vote specifically for more border control, which therefore becomes something of a priority, does it not?
The British public certainly did vote for more border control and this Government are very clear that we need to balance immigration with the skills that we need to provide services in this country. In terms of the savings, experts have given all sorts of figures and I will not at this point try to guess.
My Lords, does the Minister agree that asking rational and legitimate questions about process is not the same as not accepting the result of the referendum?
Asking rational questions is perfectly legitimate; noble Lords tend to ask rational questions, and that is totally legitimate. There is a wide range of views in both your Lordships’ House and the other place but I think we all accept the outcome of the referendum.
My Lords, is the Minister aware that a UK border official at Charles de Gaulle airport once told me that when a passport on occasion appears in front of them that is illegal, they give it back to the French authorities and that passport often reappears, carried by somebody else, in order to try to get access to the UK?
The noble Viscount tells me something that I did not know, but the e-gates are actually very accurate at marrying up the person with the identity in the passport.
Brexit: Aerospace Industry
To ask Her Majesty’s Government what assessment they have made of the impact of Brexit on the aerospace industry.
My Lords, we have engaged with the UK aerospace sector and are aware of the potential issues that the UK’s exit from the EU may have. Our aim is to keep the UK the leading aerospace nation in Europe and we will continue our long-standing support for the sector. That includes a matched co-funding of some £3.9 billion for a research and development programme to 2026.
Are the Government aware of the cross-border problems with the supply chain in aerospace? I am concerned about the European Aviation Safety Agency—where we play a key role—which certifies the safety of aircraft products. That is a profoundly important area. I am not sure—and this applies to other agencies, too—how the Government plan to move that forward in agencies, particularly where we play the lead role and will no longer be able to do so after Brexit.
My Lords, the EASA is indeed extremely important, as are other European agencies. We will negotiate with those agencies over the next two years to come to a sensible arrangement.
My Lords, does the Minister agree that it is a shame that the party opposite is so slow in catching up with its leadership?
I wonder what leadership my noble friend is referring to. I am sure that the party opposite is wholly united behind its leader.
My Lords, as the Minister well knows, a defence strategy refresher paper is to be published in the middle of the year. Never mind Brexit; is he aware that if that paper fails, as did the national strategy, to make a clear commitment on behalf of the Government in favour of retaining and preserving Britain’s capacity to design and manufacture its own helicopters, as we have done for 70 years for the benefit of our Armed Forces and our export markets, there is a real danger that that capacity will be lost, together with hundreds of jobs in Yeovil and elsewhere and a crucial part of the national aerospace asset? Why can everybody else see that danger but the Government seem blind to it?
My Lords, I do not agree with the last part of the noble Lord’s question. The capacity to manufacture helicopters in the UK is extremely important and the MoD is very much committed to doing that. As the noble Lord says, we will publish a refresh strategy later in the year, which I am sure will make that clear.
My Lords, will the Minister confirm that the European Aviation Safety Agency plays a crucial role in excluding from European airspace and European airports any aircraft that originates from countries or companies that have poor safety records? By that means it safeguards the security and well-being of people right across this continent. Because of the importance of that, will the Minister give me an undertaking now that, whatever the other outcomes of Brexit, we will retain full participation in the European Aviation Safety Agency?
My Lords, I can confirm that safety is absolutely paramount. How that is achieved between the workings of the CAA and the EASA will have to be resolved over the next two years.
My Lords, another European agency of crucial importance to safety, which the Minister will know about from his previous role, is the EMA—the medicines evaluation agency currently located in London. It is important not only for the NHS but for the pharmaceutical industry. When the Minister is looking at future co-operation and arrangements, will he ensure that that agency and our relationships with it are also safeguarded?
My Lords, the relationship between the MHRA and the EMA, similar to that between the CAA and the EASA, is absolutely critical. The MHRA, from my memory, does 40% of the work of the EMA—so the relationship between those two organisations will indeed be very important.
My Lords, as one of the largest contributors to the European Investment Bank, what influence have we had over the money that it has just given to the European Defence Fund, which was set up in November, and the subsequent allocation by the European Defence Agency for defence and aerospace procurement all around Europe?
The noble Lord raises such an interesting question that I cannot actually answer him, so I will have to write to him afterwards.
My Lords, will the Minister explain why, in the case of the air and the medical agencies that have just been discussed, the Government are looking into how this can be integrated with Brexit, but they have already made a decision to leave Euratom without any debate at all? They are all the same kind of safety regulators: what is the difference?
My Lords, I think that the difference is that the Euratom treaty was inextricably linked to the original European Communities treaty. When we exercise Article 50, it will automatically have an effect on the Euratom agreement, whereas the other issues that we are looking at are regulatory issues in which we have a much greater degree of discretion about how we work together in the future.
To ask Her Majesty’s Government what estimate they have made of the number of residential care home beds that were available in (1) 2005, and (2) 2015.
My Lords, I am informed by the Care Quality Commission that, as of 31 March 2015, there were 464,110 nursing and residential care home places in England. According to the annual reports of the Commission for Social Care Inspection, the predecessor to the CQC, the equivalent figure as of 31 March 2005 was 451,288.
My Lords, I thank the Minister for that Answer, but will he ensure that the number of care home places remains at a sufficiently high level to enable people to be discharged from hospital when it is deemed safe to do so? If there is currently a shortage of care home beds in, for example, rural counties such as North Yorkshire, will his department work very closely with local authorities up and down the country to ensure that people can leave hospital and go to a care home when that is appropriate?
I thank my noble friend for making a very important point. Clearly, the capacity in the care home sector is important for ensuring that there is a proper flow of patients out of hospitals and into a more appropriate setting. In regard to the county that she was talking about, North Yorkshire, I think the overall number of beds has been broadly flat over the period in question, but there has been an increase in domiciliary and supported accommodation, which is increasingly the way that care is being structured across the country.
My Lords, does the Minister agree that where there is a shortage of residential or, indeed, nursing home care beds, the onus on care falls on the families? Will he take this opportunity to update his honourable friend in the other place, the Minister for Health, who last week exhorted the nation to care for its elderly relatives? He apparently forgot that there are 6.5 million people who already do so at great personal cost to themselves.
The noble Baroness is quite right to highlight the work that carers do. There is now, of course, a national carers strategy to support those who are supporting their families, often in very difficult circumstances. The point that my honourable friend in the other place was trying to make was that there is an important role for families to continue doing so—in the way that parents care for children, children should do the same for their parents in return.
My Lords, it is absolutely evident that the care homes are facing an existential problem. Their costs have increased by 30% in the last year with the introduction of the national living wage, and their profits have significantly reduced. Some 1,500 homes have closed over the last six years. There is a major problem going on, and it is not good enough to exhort local councils to pick up the gap when their funding has been severely curtailed, which is also not helping care homes. When will the Government get a grip of this very serious crisis?
I am pleased that this Government have introduced the national living wage, which is supported, I believe, across this House and the other place. The noble Baroness is quite right that there is an impact on social care home providers, many of the staff of which are paid at that level. The truth is that there is a cost pressure, of course, in the social care sector—that is one of the reasons that the precept is rising quicker than it would have done otherwise—and the better care fund has been created to support more care provision in the appropriate setting that people want to have it in.
My Lords, with applications for nursing degrees having gone down by 10,000 and with planned immigration restrictions being imposed, what are Her Majesty’s Government doing to ensure that we have not only sufficient beds but the caring and nursing staff to look after those who are using the beds?
The number of workers in the social care sector has increased by about 165,000 over the last five years: there is an increased demand because we have a growing population. I think that we are going to have another opportunity to talk about the impact on nursing degrees tomorrow, so I do not want to spoil the party. As for the impact of the European Union, of course, a significant section of the workforce comes from the European Union but we are increasing the number of nursing training places and there is also now a nursing apprenticeship scheme which is providing 1,000 places for people who want to enter the profession by that route.
My Lords, does the Minister agree that people in acute hospitals would not need to be there if there was somewhere they could go very soon after being admitted to hospital, such as rehabilitation centres? Many countries have small, nurse-led rehab centres; many of our smaller hospitals which are being closed down could be used in this way. People could go there as soon as they can out of the acute hospital sector. If we did that, we could solve some of the problems and we would have the right sort of care for a lot of frail people who are at the moment accused of blocking hospitals—they do, but it is not their fault.
The noble Baroness raises an incredibly important point. Patients end up in hospitals for a variety of reasons and it is not always the best setting for them. The kind of care she describes is important; it might be rehab centres or cottage hospitals. Indeed, what we are seeing through the sustainability and transformation plans are ideas for intermediate care and step-down care that provide exactly the sorts of things she is talking about.
Does my noble friend recognise that when care users go into a residential care home their own home is very often included in the means test, even if subject to deferred payment? However, if they receive their care at home, their own home is exempted. This both reduces the resources available to support care and also creates a disincentive to go into care homes for people for whom it might be the best result. Does my noble friend recognise this as an issue we should look at?
The most important thing when providing care is that it is in a setting that people want and feel comfortable with. There is, of course, a trend towards more domiciliary and supported housing for precisely that reason.
My Lords, what is the Minister’s view of Disability United’s recent FOI finding on NHS continuing care that a large number of CCGs are saying they will not support the care of chronically ill people in their homes if it is cheaper for them to be in residential care? How does this sit with the reality of the state of the residential care industry, with bed shortages in many areas so that patients cannot be transferred from hospital, and with the Government’s aim of giving chronically and terminally ill people choice about where they want to be cared for, particularly at the end of life?
The noble Baroness makes a very good point. There is clearly a need for additional capacity, because there is a much greater population. The number of people aged over 85 has increased by about 25% in the last five years and that will increase at a similar rate over the next five years, so more capacity is needed both at hospital level, in residential and nursing homes, and at a domiciliary level too.
My Lords, there are worrying trends of discrimination suffered by people in vulnerable groups, people with HIV, those who are ageing and others. Therefore, will the Minister work with care providers to ensure that such discrimination, ignorance and stigma are absolutely outwith the provision of such services?
I completely concur with the noble Lord’s point. He is right, of course: there should be no such discrimination on those grounds or any other. I will certainly investigate that and see if there is anything worrying going on and write to him.
UK Sports: Funding
To ask Her Majesty’s Government whether they have assessed the funding allocations to individual sports from 2017 onwards announced by UK Sport following the Rio Olympics in 2016.
My Lords, decisions on elite funding allocations are for UK Sport. Its no-compromise approach has delivered our greatest Olympic performance in a century. However, it is crucial that funding is invested strategically in the right sports, the right athletes and the right support programmes. Team GB’s historic medal haul in Rio was an amazing achievement and our athletes made the country very proud. I hope that this success will continue through to Tokyo 2020.
My Lords, badminton is enjoyed by over half a million people regularly in this country because it is one of the most accessible and affordable competitive sports. Those half a million people cheered when Team GB’s badminton team won the medal that they had targeted in Rio last summer. Yet all their funding—all of it—has been dismissed by UK Sport for the period up to the Tokyo Olympic Games, while sports that won no medals have received millions of pounds. This is surely wrong, and while I recognise and support the view that government should not routinely intervene in the decisions of UK Sport, there is surely a case, on this issue, for Ministers to haul in UK Sport, ask it what is going on and make sure that it makes the right decisions in the public interest for sport in this country in the future.
I start by acknowledging that Chris Langridge and Marcus Ellis did a fantastic job in winning a medal at the Olympics, and deserve a lot of credit. The problem is, first, that this is a matter for UK Sport; and, secondly, that it is not right that Ministers should be involved when the appeals process is still going on. The next stage of the appeals process is going on today and there is yet another stage that badminton can go on to. One reason that those athletes did so well was the potential for winning medals in badminton: since it has been an Olympic sport, Britain has won three medals, China has won 41 and Korea and Indonesia 19 each. So UK Sport took this very difficult decision on that basis purely of the ability and likelihood of winning medals.
My Lords, can the Minister say whether UK Sport is obliged to give reasons for its decisions, and how the appeals process works?
My Lords, first, UK Sport deals with the national governing body of the sport before the decisions are made—so there is a lot of consultation with the individual sport. These decisions, therefore, do not come as a surprise—or at least they should not. With regard to the appeals process, the sport can make a presentation to the board of UK Sport; that is taking place for several sports—eight, I believe—today and tomorrow. If that does not go the way that the sport wants, it can go to a three-man independent board of Sport Resolutions.
My Lords, does the Minister agree that the funding of sport is crucially linked to the lottery? What steps will the Government take to ensure that the National Lottery retains its pre-eminent position? The first step might be a statement that the other competitors have to pay out at least as much to good causes as it does.
The noble Lord is right that funding for sport is crucially dependent on the lottery. The other problem that UK Sport has is that it has to make its allocations four years in advance for the Olympic cycle. That is why DCMS has underwritten the potential lack of funding from the lottery so that it can produce a plan for the athletes for 2020.
My Lords, does my noble friend recognise a tension between the desirable objectives of engaging as many people as possible in health-giving and character-building sport, and of getting as many gold medals as possible? If so, which has priority in the minds of both the sporting executive and the Government?
There is of course a tension. UK Sport’s no-compromise approach is purely about delivering the maximum number of medals. That is not necessarily what is good for public health, for example, but the two are interrelated. I think everyone realised at London and Rio that when Team GB did well, there was a great incentive to get out and participate in sport. Sport England, which has roughly four times the funding, has a new strategy encouraging people to get active. That may or may not include sport—the main thing is to get out of the front door and take some exercise.
UK Sport has the role of making sure that we have excellence internationally. But what the Government are thinking about, because some of their decisions surely have to be about increasing the number of participants, particularly young people? Given that that is the case, what is the Government’s view of the fact that there is no allocation to team sports, which are what schools provide? Surely it is time that we looked now at having more participation by young people in team sports in schools.
I completely agree with the noble Baroness. That is why the Government’s sports strategy included allocating responsibility to Sport England for those aged from 14-plus down to five-plus. The stress, as I said, is not only on sports but on activity. At the moment, just under 40% of the over-16 population are either inactive or insufficiently active.
My Lords, will the Minister confirm that, after the fantastic performance of Britain in the Rio Olympics, there was, as I heard, a shortfall of £3 million or £4 million for our athletes to go to the Commonwealth Games in Australia? Can he assure us that this shortfall no longer exists and that our athletes will be fully funded to go to the Commonwealth Games?
I was not aware of the shortfall but I will find out from my department and write to the noble Lord.
Parking Places (Variation of Charges) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Broadcasting (Radio Multiplex Services) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Digital Economy Bill
Committee (3rd Day)
Relevant documents: 11th, 13th and 16th Reports from the Delegated Powers Committee
75: After Clause 29, insert the following new Clause—
“Review of sale on the internet of counterfeit electrical appliances
(1) Within six months of the coming into force of this Act, the Secretary of State must commission a review of the sale on the internet of counterfeit electrical appliances.(2) The review must consider whether operators of trading websites that allow individual sellers to use those websites to sell electrical items should be required to report to the police and trading standards authorities any instances of the selling of counterfeit electrical appliances which are arranged through their website.(3) The Secretary of State must publish the report of the review, and lay a copy of the report before each House of Parliament.”
My Lords, it might perhaps be for the convenience of the Committee if we had a short pause so that those not engaged in the next business may leave the Chamber.
My Lords, I shall speak to Amendments 75 and 76, which deal with the sale of counterfeit electrical goods on the internet. There is growing concern about this practice, which has increased massively over the past 20 years—by 10,000%—and is continuing to increase at around 15% a year. The industry of counterfeit goods is worth something like £1.3 billion, according to the Electrical Safety Council, and 64% of these goods are sold on the internet. People believe that they are buying reputable brands, as they are dealing with an online retailer that is well known and they assume that the goods are genuine.
The fact that there are so many accidents and so many problems with these goods is another reason that we are bringing these amendments today, as we see this Bill as an opportunity to do something about this practice. The goods are often dangerous. The Electrical Safety Council calculates that something like 7,000 domestic fires are caused by faulty goods, and many of these are counterfeit goods. The practice of selling these goods undermines genuine brands and causes great difficulty within the industry. Faulty goods can also cause great harm directly to individual people.
These amendments seek to give some responsibility to online retailers to report to trading standards and the police goods that they know to be counterfeit. The second amendment requires the Government to provide a review and report on the extent of this practice as well as its impact on the economy. I beg to move.
My Lords, my name is also to this amendment, so I support my noble friend Lady Janke. I declare that I am a patron of Electrical Safety First.
My noble friend has stated the problem very well. The ask from this amendment is very modest: we are asking the Government to establish a review. It may not be appropriate for that to be in the Bill, but it gives us an opportunity at this stage for the Government to come back and tell us what they are going to do about counterfeit goods, which are clearly a fast-growing problem.
Our particular concern is with electrical goods, although I could probably add gas goods as well. Counterfeiting clearly is a problem, and I do not minimise it, but a counterfeit handbag is unlikely to kill you; counterfeit electrical goods most certainly can, and do, kill people. I happened to spend my Sunday reading the trading standards journal TS Review, as I imagine many of your Lordships would have been doing. I read that,
“More than 99 per cent…fake Apple chargers failed a basic safety test. Twelve were so poorly designed and constructed that they posed a risk of lethal electrocution to the user”.
On the same page, it is reported that the London Fire Brigade has stated that,
“Across London, 2,072 fires involving white goods have been recorded since January 2011, with more than £118m estimated to have been lost from London’s economy as a result”.
This clearly is a problem, not only to those who produce the products legitimately. Indeed, I noticed that eBay, of all places, is setting up an authentication scheme so that the proper producers can have their goods authenticated by experts as being not counterfeit. This indicates a huge problem.
The purpose of these amendments is to seek a commitment from the Government that they will establish reviews into goods sold and, in particular, goods sold on the internet. I hope that the Minister will be able to tell us, first, that the Government recognise this increasing problem and, secondly, if they do, what they are going to do about it.
My Lords, I reassure the noble Lord, Lord Tope, that we recognise this problem, although I have to admit that I certainly did not spend my Sunday reading the trading standards review.
Amendments 75 and 76 seek to impose a commitment to review and report on the sale and cost of counterfeit electricals being sold online. The sale of counterfeit goods of all kinds, not just electrical goods, has, as noble Lords said, the potential to cause consumer and economic harm by damaging legitimate traders and often supporting organised crime.
This is an issue the Government take extremely seriously, and that is why the Intellectual Property Office is committed to tackling counterfeiting of all kinds. We do this by working through our IP attaché network in manufacturing countries, targeting import routes in conjunction with UK Border Force and targeting UK sellers and distributors along with trading standards and police services across the UK.
We have heard reference to the challenges of the online world and sales via social media. We absolutely recognise that, and that is why we have supported some very successful work through Operation Jasper, working with police and trading standards to tackle the sale of counterfeits through social media sites.
The full range of work undertaken by government in this area is outlined in the IPO’s IP enforcement strategy, which was published last year. This strategy makes a number of commitments that are very relevant to the ideas proposed in these amendments. The strategy commits the Government to further improving the reporting of IP crime as well as to developing a credible methodology to measure the harm caused. Work is also ongoing with academics to build the structures necessary for commercial entities to share information that they hold about levels of infringement in a safe manner. The IPO also hosts the IPO crime intelligence hub, which is able to receive, develop and disseminate intelligence on IP crime, whether online or physical. The hub is in regular contact with the UK’s leading online sales platforms, and they are continually developing better mechanisms for sharing information about sellers and products.
In addition to this, the IPO, on behalf of the IP crime group, which is a collection of government departments, industry bodies and enforcement agencies which work to tackle IP crime, publishes an extensive report each year on a wide range of IP infringement, including counterfeit electrical goods. The IPO is also working with Citizens Advice to see how it can offer better information to consumers so that they in turn can make more informed purchasing choices. Finally, the IPO is working to encourage trade associations voluntarily to share information about sales of counterfeits that raise safety concerns.
In light of all the things that the Government and others are involved in, I hope the noble Baroness will withdraw her amendment.
I thank the Minister for the information she has shared with us. It is very encouraging. However, there is a feeling that this issue has been around for a very long time and that perhaps stronger enforceability is needed to do something about it. I read that eBay is now producing its own mechanism for preventing the sale of counterfeit goods and that other online retailers will be looking at that, but it still seems that the ability to enforce action on this is missing. I hope to look at the work the Government are already doing on this and consider its future contribution and then consider whether to return with this matter at a later stage. I beg leave to withdraw the amendment.
Amendment 75 withdrawn.
Amendment 76 not moved.
77: After Clause 29, insert the following new Clause—
“Copyright and the role of active hosts
(1) The Electronic Commerce (EC Directive) Regulations 2002 are amended as follows.(2) At the end of Regulation 19 insert—“(2) Where an information society service is storing and providing access to the public copyright protected works, and is playing an active role, including the promotion and optimising the presentation of those works, sub-paragraph (1) shall not apply.(3) The service provider of an active host under sub-paragraph (2) is required to secure licensing agreements with rightsholders.””
My Lords, in moving Amendment 77, I shall speak briefly to Amendment 79. Amendment 77 probes the Government’s intentions with regard to the recent proposals for an EU directive on copyright in the digital single market. The amendment would clarify that the hosting defence contained within paragraph 19 of the Electronic Commerce (EC Directive) Regulations 2002 does not apply to digital services that play an active role in the provision of online content, specifically those user upload services that optimise the presentation and promotion of copyright-protected works. The amendment would require those services to secure licensing agreements with rights holders.
To explain in more detail, many services are passive hosts, which are defined in EU law as those that provide a,
“technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient”.
Examples would include internet service providers such as BT, TalkTalk or Virgin, cloud locker services such as Dropbox, Microsoft’s One Drive or Google Drive, and online bulletin boards such as HootBoard or MyBB. Services such as these are accepted as essential to the operation of the digital market and so quite reasonably have what is called “safe harbour protection”—that is, a limitation of their copyright liability on the basis that they have no knowledge of copyright infringement. On the other hand, there are sites that also give access to works made available by third parties, but actively provide functionality that promotes works, makes recommendations and optimises the upload for the purpose of presentation. It is this functionality that provides users with the ability to find what they want when they want it. These are active hosts. They directly compete with licensed providers. Examples include Facebook, YouTube, Dailymotion, Bandcamp, Vimeo and Metacafe. They should not have safe harbour protection and should be required to secure licencing agreements with rights holders.
Therefore, while there was, and in some areas continues to be, justification for exemptions for passive hosts, like all exemptions they must reflect the balance between the rights of rights holders and users. There is a strong argument that the existing provisions are not sufficiently defined and as a result are open to deliberate misinterpretation. This means that some services can use copyright-protected content to build their businesses without fairly remunerating rights holders. UK Music’s recent report Measuring Music highlighted that the user-uploaded service YouTube, the most frequently used global streaming platform and one that currently benefits from the safe harbour provisions, increased its payments to music rights holders by only 11% in 2015 despite consumption of the service growing by 132%. This further underlines what is called in the trade the “value gap”. The current legal ambiguity and imbalance has created distortions in the digital market with services like YouTube benefiting from these exemptions whereas Apple Music and Spotify, providing similar services, do not. The growing significance of the music streaming market must not go unremarked. Over a four-year period, the UK music industry has grown by 17%, and during the same period, there has been a massive shift from consumers owning music to streaming it. The value of subscription streaming services jumped from £168 million in 2014 to £251 million in 2015.
There has been a number of legal cases seeking to clarify the situation. In 2011, in the L’Oréal v eBay case, the Court of Justice of the European Union held that online marketplaces cannot benefit from the hosting exemption where they play an active role, for example by promoting and optimising content. This amendment seeks merely to clarify what should already apply in the law right across the EU, including in this country. However, some services are still arguing that they are not active hosts, and as a result, avoid licences or are underlicensed, hence the need for the clarification that may be provided by this probing amendment.
There is another reason why we need greater clarity from the Government. Initially, the Government made it clear that they believed:
“Clarification of terms used in the Directive would, we believe, help to address … concerns”,
about the active/passive host issues. However, in a letter to the EU institutions in April last year, the then intellectual property Minister, the noble Baroness, Lady Neville-Rolfe, argued in relation to digital services that,
“we should avoid introducing legislation that might act as a barrier to the development of new digital business models and create obstacles to entry and growth in the European digital market”.
This probing amendment seeks to ensure that that sort of view does not preclude strong and robust positions being taken in support of safe harbour clarification. The proposals in the draft EU directive in this regard are welcome, and we ask that the UK Government continue to support the clarification in the law that the draft directive seeks and that they continue to engage in this important process.
The referendum result and the path towards Brexit raise many issues in relation to these proposals. It is highly conceivable that we will be Brexiting at the very time that Europe begins to adopt copyright rules for the digital age, so an opportunity to clarify UK law will be lost as a consequence of other factors. It is therefore necessary to consider how we can take this opportunity of having a Digital Economy Bill to safeguard these important principles once we leave the European Union. I hope very much that the Minister will confirm that the Government are committed to implementing the draft directive, and Article 13 and Recital 38, into UK law, if they are not implemented by the point that we leave the European Union. Finally, I am well aware that the Government have been consulting stakeholders on these issues. I hope we get a commitment from the Government to publish the consultation and that the new IP Minister, Jo Johnson, will commit to a meeting with representatives of the music industry and others to discuss these issues.
Briefly, we on these Benches fully support Amendment 79 in the name of the noble Lord, Lord Stevenson, which my noble friend Lord Clement-Jones and I have also signed. I have no intention of stealing the thunder of the noble Lord, Lord Stevenson, and will leave him to explain the importance of the amendment, which seeks simply to help the Government achieve their own manifesto commitment to reduce copyright infringement and ensure that search engines do not link to the most offending sites.
I will say merely that the Government have already hosted a number of round tables to seek ways forward, and some sources are telling us that a voluntary agreement for a code of practice is close to finalisation. If that is true then I am delighted to hear it, but this amendment would not preclude a voluntary agreement. Already many have argued to us that tabling the amendment may have helped to speed up the process towards a voluntary agreement with teeth, but the amendment would not do anything other than ensure that we had a backstop mechanism in the event of a failure to get a voluntary agreement or if the voluntary agreement fails. I hope that on that basis Amendment 79 will also be considered seriously by the Government.
My Lords, it is extremely kind of the noble Lord, Lord Foster of Bath to introduce my amendment for me, saying that he was not going to speak to it and then covering all the points I was going to make. That means we will move a little faster than we would otherwise have done. I think I can limit my speech to three points, in the sure and certain knowledge that the noble Lord, Lord Clement-Jones, will cover any points that I do not cover in great detail.
We understand that there is a voluntary code in circulation that has been offered to all parties, and it is thought that it might be signed some time this week—at least, that is the deadline that the Government have given. If that is the case, as the noble Lord, Lord Foster, says, then that is obviously good news and takes us a step down the road, but my amendment would be necessary if not everyone who has been offered this signs up to it, which I think is quite likely. There may be new entrants and other companies that participate in this area for which the activities that facilitate copyright infringement by users will remain a problem, and of course there may be changes in technology that we cannot even anticipate at this stage that may make it necessary, as adumbrated by the amendment, for the Secretary of State to return to this issue in future. For all the reasons given by the noble Lord, Lord Foster, this is a helpful amendment, intended to ensure that this long-running problem gets solved. I hope very much that the Government feel able to accept it.
My Lords, on Amendment 77, over recent years the UK has made great strides in the enforcement of intellectual property, and we are now judged to have one of the best IP enforcement regimes in the world. This is definitely a position that we are keen to maintain, and the Bill sends a clear signal that the Government believe copyright infringement is a serious matter, irrespective of whether it is online or offline. This includes measures to increase the penalty for online copyright infringement from two years to 10 years. We understand that there are concerns in the music industry particularly that online intermediaries need to do more to share revenues fairly with creators, which the amendment seeks to tackle. However, we need to find balanced solutions that provide clarity without undermining basic freedoms or inhibiting the development of innovative digital models.
As the e-commerce directive is EU single-market legislation in origin, we will in effect have to wait until after we exit the EU and then possibly initiate a debate as to whether this regime, or indeed the e-commerce regulations as a whole, is still fit for purpose. We are also wary of making piecemeal changes to this important regime that has helped to foster the development of online services and has been helpful to the development of the UK’s burgeoning tech sector without a proper debate involving all parties.
That said, the current law, including the exemptions from liability, has fostered an open and innovative internet, giving online services the legal certainty required to start up and flourish. This has been good for creators, rights holders, internet businesses and consumers alike. Platforms, like all businesses, have a role to play in helping to remove copyright-infringing material, and there is no place for a system that encourages copyright infringement online. However, the UK Government are fully committed to ensuring that our creative industries receive fair remuneration for their work. We want to see creators remunerated fairly, while encouraging investment in new content and innovative services. We will carry forward these principles when engaging at policy level with the EU while considering our own UK-based solutions.
The Government are clear that we must maintain our rights and obligations as members of the EU until we leave. That means that we carry on making arguments within the EU concerning our preferences for EU law. Once we leave the EU, we may choose to reconsider a range of issues, including the limited liability regime, but for now, government policy remains unchanged. The European Commission has recently published a series of copyright proposals in that area, and we are in the process of carefully considering those proposals. While we remain a member of the EU, we will continue to engage with policy development in this space, alongside considering the development of our own copyright framework.
Amendment 79 would mean that the Government take a power to impose a code of practice on search engines, to dictate how they should work to prevent copyright infringement. The return of that suggestion, which was also discussed in another place, gives me an opportunity to update noble Lords on progress in this important area. Since the idea was last discussed in the other place, IPO officials have chaired a further round-table meeting between search engines and representatives of the creative industries. While there are still elements of detail to be settled, the group is now agreed on the key content of the code and I expect an agreement to be reached very soon. All parties have also agreed that the code should take effect, and the targets in it be reached, by 1 June this year. The search engines involved in this work have been very co-operative, making changes to their algorithms and processes, but also working bilaterally with creative industry representatives to explore the options for new interventions, and how existing processes might be streamlined. I understand that all parties are keen to finalise and sign up to the voluntary agreement, and so we believe there is no need to take a legislative power at this time.
Surely it is better to act on a co-operative basis now, and start tackling this serious issue right away. If, however, a voluntary deal cannot be achieved, we will re-evaluate our options. I hope therefore that the noble Lord is reassured, and feels able to withdraw the amendment.
My Lords, I thank the Minister for her response. On the second amendment, my concern is that although she is optimistic that we will have a robust agreement in place, if that does not happen—or if the agreement breaks down at a future date, for whatever reason—she has said merely that the Government will re-evaluate their position. She will be as aware as I am of the difficulty of bringing new legislation before your Lordships’ House to address any decision they might make at this time. The amendment would provide that backstop mechanism if it is needed in the long run, which is why I hope we will have an opportunity to discuss that at further stages of the Bill.
On the first amendment, the Minister has not been able to reassure me that the Government are committed to introducing appropriate legislation if the EU legislation has not been finalised at the time we leave the European Union. I hope therefore that we will have an opportunity to discuss that matter in more detail on a future occasion. For the time being, however, with an opportunity for us to reflect on what the Minister has said, I beg leave to withdraw the amendment.
Amendment 77 withdrawn.
78: After Clause 29, insert the following new Clause—
“Transparency and fairness obligations
(1) Authors, artists and performers (“creators”) shall receive on a regular basis timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights as well as subsequent transferees or licensees, and the information shall include information on modes of exploitation, revenues generated and remuneration due. (2) The obligation in subsection (1) may be met by complying with a code of practice collectively bargained between relevant representative organisations of creators and the representative organisations of those who exploit their works, taking into account the characteristics of each sector for the exploitation of works.(3) Any such code of practice is to provide that each creator is to be entitled to a statement of income generated under such licence or transfer arrangements at regular intervals during each annual accounting period, and provide an explanation as to how the creator’s remuneration has been calculated referencing any contract terms relevant to the calculation.(4) In the event of failure of a transferee or licensee mentioned in subsection (1) to comply with a code of practice, or in the absence of such a code of practice, the creator shall be entitled to apply to the Intellectual Property Enterprise Court for a detailed account of revenues due to the creator generated from the modes of exploitation referred to in subsection (1), and in the event of failure, the Court may award damages in the amount of any shortfall in the total amount due to him.”
My Lords, my noble friend Lord Foster of Bath has referred to the draft directive on copyrights on the digital single market. Many authors, writers and artists welcome the provisions to balance the playing field for creators announced in that draft directive and would like to see them incorporated in our domestic law through the Digital Economy Bill. Some of my concerns about the timing of the adoption of the directive mirror exactly those mentioned by my noble Friend, Lord Foster.
The directive proposes in article 14 one particularly important safeguard—namely, transparency: a right to regular, timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights, including details of modes of exploitation, revenues generated and remuneration due. This right will apply even if copyright has been assigned and will allow authors and performers to assess how their work has been used.
Some assignees and licensees are exemplary, but by no means all. Authors and performers under these provisions will have a right to detailed and full statements on the uses of and revenues from their work, unless such reporting is disproportionate. That in itself would be an enormous improvement on the present situation, whereby authors and artists often do not know how widely their work is used and have no way to check whether payments made to them are correct. This problem can become more acute in the digital age, when work can be disseminated in many ways and there is no physical stock which can be counted to ensure that accounting is correct.
As for music, subscription streaming is set to become the most significant revenue stream for the recorded music market in the near future. Streaming requires a fundamentally new licensing model from those who control the recording and song—lyrical and musical—copyrights, which the digital service providers wish to exploit. A complex model was developed, and is now utilised by most subscription services. The evolution of this licensing process for streaming music has resulted in a number of transparency issues for artists and songwriters which have not yet been fully addressed—not least, the presence of non-disclosure agreements between the digital service providers and the record labels, distributors, publishers and collective management organisations, which mean that artists and songwriters are not always allowed to know the revenue share and minimum guarantee arrangements that each digital service provider uses to calculate what the copyrights from which they benefit are due each month. There is also a lack of clarity over how labels and publishers apply contract terms that impact on how creator payments are calculated.
The amendment would work in a similar fashion to the proposals in the draft directive, ensure that creators can audit the royalties they receive from streaming and other services, and assess the relative merits of different services and business partners. Licensees and assignees already have systems in place for recording usage and revenues and reporting to creators. These systems are increasingly detailed in the digital age, and could easily be adapted to take account of any increased requirements. According to a medium-sized book publisher, reporting on 600 titles on the basis of spreadsheets takes 80 man hours per year, and the average time required for compiling and sending a report on a title is eight minutes. Simpler cases can be dealt with in two to three minutes, while the more difficult ones can take 10 to 15. The advantages far outweigh any cost and would help to make creative careers more attractive. Greater transparency would give a powerful message to consumers as they are generally more willing to pay for copyright-protected works if they know that fair remuneration would reach the original creators.
The directive itself is now subject to further consideration and review and may take 12 to 18 months, at best, to adopt, and perhaps even longer, as my noble friend indicated. As the Minister, or the Minister’s noble friend, reminded me recently, the Government have published a call for evidence on the copyright proposals. When will they take a definite view on the proposals, including these transparency provisions? The UK has an unparalleled opportunity to create a fairer playing field for creators by incorporating these provisions into the Digital Economy Bill, irrespective of whether we want to or can sign up to the directive. The question is whether it will. I beg to move.
My Lords, I fully support the amendment of the noble Lord, Lord Clement-Jones. I do not have much to add to his thorough analysis of the issue other than to say that the right of artists, authors and performers to know what is being done with their work, and to obtain fair remuneration for the exploitation of it, is incontestable. This amendment would, in an effective manner, enshrine that right.
In one sense, information is money. This amendment will doubtless have hidden benefits in that anything that can be of further help to artists, particularly those who are less well off, to survive and thrive, and, perhaps, to become the high earners of the future, is a worthwhile long-term investment and can only be good for the individuals, the creative industries and the UK economy as a whole.
My Lords, I thank the noble Lord, Lord Clement-Jones, for raising this issue. Our creative industries ultimately depend on the efforts of authors, musicians and other creators, and I agree with the principle that they should be fairly remunerated when their works are used. We want to create an environment where the UK’s creative industries can continue to thrive and retain their world-leading edge. The creative content tax reliefs are one of the Government’s flagship policies, and the film tax relief alone supported over £1 billion of expenditure in the UK in 2015-16. The Government are also investing in skills to create a pipeline of future talent. Since 2013, we have made available up to £20 million match funding to the skills investment fund to help employers address priority skills needs in the screen sector. Over the last 18 months, this has supported more than 500 graduate placements.
The amendment would require those organisations exploiting copyright works via licences to provide the relevant creators with regular information on their use and the revenue they generate, and states that this obligation could be met by complying with a code of practice determined at sector level. It would also provide creators with recourse to court if these requirements are not adhered to. The principle of transparency is an important element of well-functioning markets. I am aware that some creators and their representatives find it difficult to access information on the use of their works owing, for example, to difficulties in negotiating suitable contractual terms. I am, however, happy to confirm to your Lordships’ House that the Government are already engaged in discussions to address this issue. The European Commission has made proposals in this area as part of its current draft directive on copyright, and the UK will actively engage in these debates while we remain a member of the European Union. As such, I hope the noble Lord, Lord Clement-Jones, will understand the Government’s wish to allow this process to develop before considering the case for domestic intervention.
I welcome the noble Lord’s recognition in his amendment of the important role that collectively agreed industry standards can play in this space. Creators and publishers alike have highlighted the role that such standards can play in improving transparency and fairness. Examples in the UK include the Publishers Association’s Code of Practice on Author Contracts, and the fair digital deals declaration operated by the Worldwide Independent Network. I believe that it is worth giving careful consideration to the part that these industry-led initiatives can play, and I hope the debate at EU level will be a chance to explore that. With this explanation, and the assurance that these issues are under active consideration, I hope the noble Lord will withdraw his amendment.
My Lords, I thank the Minister for an extraordinarily well-crafted response—it seemed to throw bouquets in various directions, but I am not quite sure where the petals will fall at the end of the day. It was splendidly positive at the outset, and I felt a speech on industrial policy for the creative industries might be coming on. I thank the noble Earl, Lord Clancarty, for his very supportive contribution.
The Minister talked about transparency being an important element of a well-functioning market and went on to talk about codes of practice, the Government’s active engagement in discussions of elements of the EU draft directive, and so on, but she never actually agreed that the principle of transparency should be incorporated into UK law. Clearly, if the EU directive is passed within the two-year period after notice of Brexit is given, it may well be incorporated into UK law. However, the Minister did not say, “Yes, and moreover, given the call for evidence, we have heard the evidence on transparency and we fully support that element of the directive”. It was rather a case of saying, “Let’s keep talking and actively engaging”, and so on and so forth. I suspend disbelief slightly given that the Minister supported the principle but I am not sure she went so far as to support its incorporation into law. That is a rather different matter. We may well return to this issue on Report. In the meantime, I thank the Minister and beg leave to withdraw the amendment.
Amendment 78 withdrawn.
Amendments 79 to 79B not moved.
Clause 30: Disclosure of information to improve public service delivery
80: Clause 30, page 30, line 8, at end insert—
“( ) Information disclosed from one specified person to another specified person should be used for the purposes of a specific objective only.( ) Where the information is to be used for purposes other than the specified objective, additional approval must be provided.”
My Lords, this group includes a wide range of amendments and our debate on it will be one of our key debates on this section of the Bill. Clause 30 allows specified persons to share data for a specified objective. Our amendments seek to define and limit this and to ensure that additional approval is required where there is broadening or leakage
My honourable friend Louise Haigh thoroughly scrutinised this provision in the other place. Certainly, it took me most of Saturday to read what was said in that Committee stage. I do not intend to repeat all the arguments that were made—but I give fair warning that it will take me some time to go through these key elements, given that the principles in these clauses have given rise to concern, certainly in your Lordships’ Delegated Powers and Regulatory Reform Committee.
I start by saying that we on these Benches are completely in favour of effective data sharing across government to achieve public sector efficiencies, value for money, improved public sector services, improved take-up of benefits for the most vulnerable such as the warm home discount, free school meals and, most importantly, an improved experience for those who use public services. We will come to a lot of those issues in later groups today where we have tabled specific amendments.
The public also support these objectives, but their trust is fragile. In recent years we have seen a number of failures in managing data. The Information Commissioner said in her recent briefing distributed to all noble Lords:
“Transparency and a progressive information rights regime work together to build trust”.
This part of the Bill gives the Government considerable powers to share data. But those building blocks in restoring trust that the Information Commissioner and just about everyone else agree are needed are sadly not mirrored in the Bill. That is the crux of today’s debate.
Instead, the building blocks are covered in regulations and codes of practice. As I said, many, including the Information Commissioner and your Lordships’ DPRRC, have stressed the importance of including such measures in primary legislation as opposed to codes of practice. Having read through all the codes of practice, I sometimes asked myself what we were dealing with. Is this Bill really at the stage of being submitted for parliamentary consideration? So much of it needs further work and further consultation that I really do wonder whether it should be in this House at all at this stage. This is something that we may have to return to.
A specified objective to permit disclosure must meet conditions set out in subsections (6) and (10) of the clause, but they are so all-encompassing that it is difficult to see anything that the public sector does that is not covered by the clause. The published codes give examples of objectives that would fall foul of these criteria, including those that are punitive, and it is useful to see those examples. But it is a real concern that such a clarification of the power is not in the Bill. Why does the Bill not explicitly contain or exclude a punitive objective? What are we avoiding here?
The codes also give examples of objectives that are too general rather than too specific, and it would help if the Minister could say exactly where that line could be drawn. Not only are the objectives not limited in the Bill but the bodies that can share or receive data are not particularly limited either. Subsection (3) states:
“A person specified in regulations under subsection (2) must be … (a) a public authority, or (b) a person providing services to a public authority”.
This is another area that gives people a lot of concern.
In the Government’s original consultation on the Bill, they stated their intention to proceed with proposals to enable non-public sector organisations that fulfil a public function on behalf of a public authority to be in scope of the powers. In that consultation, they said:
“We will strictly define the circumstances and purposes under which data-sharing will be allowed, together with controls to protect the data within the Code of Practice. We will set out in the Code of Practice the need to identify any conflicts of interest that a non-public authority may have and factor that information in the decision-making”.
I read the code of practice. Paragraph 71 refers to this and mentions non-public sector organisations. It says that,
“an assessment should be made of any conflicts of interest that the non-public authority may have”—
but it does not give any examples of what those conflicts of interest might look like. I hope that in his response the Minister will be able to give more examples of what they might look like. We will come back to this issue in our consideration of other groups of amendments to this section.
The code also states that data-sharing agreements should,
“identify whether there are any unintended risks involved with disclosing data”,
to an organisation. In the Commons, my honourable friend Louise Haigh—I congratulate her on this work—raised the behaviour of Concentrix, which was mentioned again on the radio today. It was contracted by HMRC to investigate tax credits and fraud. But the code of practice does not list any examples of risks or set out how specified persons might go about ascertaining them. We heard on the radio today that that contract and the mismanagement of the data has caused huge distress to tens of thousands of people, and that it is ongoing.
The code also states:
“Non-public authorities can only participate in a data sharing arrangement once their sponsoring public authority has assessed their systems and procedures to be appropriate for secure handling data”.
It does not give any sense of what conditions they will be measured against and how officials should assess them. I hope it is not going to be on the same basis that the HMRC gave the contract to Concentrix. It is that that we need to know about. This draft code—and I will keep coming back to it—is in an extremely draft form and needs substantially more work done on it. I hope that the noble Lord will assure us that these codes will be revised and I hope that, within the revisions, he will acknowledge that substantial improvements will be made.
This is an important time to strengthen cybersecurity and the minimisation and protection of data, which is why it is so important that we get this part of the Bill right. The new EU GDPR and the law-enforcement directive that were adopted in May will come into effect from May 2018. I am very grateful to the noble Lord for distributing the huge bundle of factsheets. I took the time to read them. I was interested that, in the factsheet Q and A circulated to noble Lords, in answer to the question of whether the new powers in the Bill are compliant with the GDPR, we are told that they are “consistent” with the codes. I am not sure I quite understand what is meant by “compliant” and “consistent”. It could be that a lot more work has to be done.
The GDPR includes stronger provisions on processing only the minimum data needed, consent, requirements on clear privacy notices, explicit requirements for data protection by design and by default and on carrying out data protection impact assessments. Indeed, as the Information Commissioner said when she gave evidence to the Commons Bill Committee:
“There may be some challenges between the provisions and the GDPR … There would be a need to carefully review the provisions of this Bill against the GDPR to ensure that individuals … have the right to be forgotten, for example, so that they could ask for the deletion of certain types of data, as long as that was not integral to a service”.—[Official Report, Commons, Digital Economy Bill Committee, 13/10/16; cols. 112-13]
At the moment this Bill makes no mention of consent and the codes are clearly not designed to support a consent-based model. In the other place, Chris Skidmore, the Minister asserted that,
“these powers do not erode citizens’ privacy rights. They will operate within the existing data protection framework. The new powers explicitly provide that information cannot be disclosed if it contravenes the Data Protection Act 1998 or part 1 of the Regulation of Investigatory Powers Act 2000. Further, they are carefully constrained to allow information to be shared only for specified purposes and in accordance with the 1998 Act’s privacy principles … The codes are consistent with the … data sharing code of practice. Transparency and fairness are at the heart of the guidance”.—[Official Report, Commons, Digital Economy Bill Committee, 25/10/16; col. 312]
We need to be reassured about this because we are not actually dealing with all the information. We do not have before us the finalised codes—at least I hope we do not, because they are totally inadequate. We need to know more and I think that these probing amendments lay down some very clear markers about how we should proceed with caution in relation to this Bill.
In her evidence the Information Commissioner advised that additional safeguards were needed in the Bill. She recommended that the Government should consider an addition to the Bill that would make it clear that the codes of practice established under Part 5 should be consistent with the ICO’s statutory data-sharing code and so forth. She was pleased that the Government had accepted her recommendation—and of course there are now references to her statutory data-sharing code in the data-sharing chapters. It will certainly help to put the consideration for the protection of privacy at the centre of any data-sharing initiative.
We have all received this brief, which is fairly strong in terms of the direction of travel. The commissioner welcomed the references to the privacy impact assessments, but she said that she was still,
“strongly in favour of having reference to them in the Bill”.
The commissioner said that she,
“welcomes the Government’s positive commitment to … address this issue”,
“Constructive discussions are at an advanced stage”,
and work is taking place with regard to the codes of practice. But when will we get further information from the Government about these possible changes? Will we be presented with key elements of principle in amendments from the Government on Report or even later, when we will not have the same opportunity that we have today to probe, seek explanations and ask questions? It will be a very different sort of forum, and not one that will enable us to satisfy our concerns.
On the issue of timeframes and consultation, whatever revisions are made to the codes, we want to be satisfied. I know that we have tabled further amendments on this issue in terms of consultation, but we need in this first group to understand what those timeframes really mean.
I now turn to the Delegated Legislation Committee’s report. I do not think that I have seen such strong language from a committee that has not had a response from the Government. I assume that the Minister will tell us that they have received the report and are considering it—but how long will that consideration take? When will we know what the Government’s response is to it? I will not read out the committee’s full report, but we have tabled amendments. There is one specific recommendation. The committee felt that it was inappropriate for Ministers to have the “untrammelled” powers given by Clause 30 that would allow them to prescribe extensively. That sort of language needs to be responded to today in detail. I look forward to hearing the Minister’s response.
At the end of the day, we tabled this amendment and we want to emphasise that we need an explanation from the Government about why these powers are needed and what safeguards will be in place. If we do not get that explanation, we will need safeguards on the face of the Bill. I beg to move.
My Lords, I, too, wish to speak to this group of amendments, many of which are in my name and that of my noble friend Lord Clement-Jones. As the noble Lord, Lord Collins, said, we on this Bench support the sharing of information. I have been a local councillor for many years and I certainly see the benefits of being able to share information. It would make people’s lives a great deal easier and enable them to access benefits and exemptions that they have not easily been able to in the past. We feel, however, that far more privacy safeguards are needed in this part of the Bill. The amendments introduce some tightening of the terms of the Bill, but more clarity is needed, with a number of principles involved in this.
Many of the people to whom the information relates are among the most vulnerable: they are people who are unemployed or on benefits, perhaps with children involved, and not necessarily in a position to understand what is happening if there is no transparency and some idea of consent in sharing the information. It is also important that we are assured that data being shared are minimised—that as little as possible is shared. There needs to be a clear justification for sharing data; the purposes must be clear and the definitions governing that must be tight.
The noble Lord, Lord Collins, mentioned Concentrix. We know that there have been other issues with the Government’s breaches of information and that government departments are not always as well equipped to deal with sensitive information as they might be. It is therefore all the more important that we have much more tightly defined terms in the Bill. I agree with what the noble Lord, Lord Collins, said about our not having those before us at the moment and about what is needed to reassure us on that if we cannot see them at the moment. The codes of practice are dealt with in the next group of amendments, and we will want to say a few words about them then, but there needs to be much more rigour and clarity, and many more conditions and safeguards to protect vulnerable people of the future, not just from wilful misuse of their personal information but from errors that could pursue them throughout their lives. I hope the Minister will be able to reassure us about this and I look forward to his comments.
My Lords, I shall speak to my Amendment 85, which is linked with this group. I thank the noble Lord, Lord Collins, for his introduction. I believe in data sharing; I declare that straightaway. However, it needs to be well managed, because, as the noble Baroness has just stressed, we do not want information to be used in a way that is, unfortunately, not fair to some of the very vulnerable families of which she has spoken.
Although the amendment moved by the noble Lord, Lord Collins, deals with Clause 30, my amendment relates to Clause 33. I have asked that Clause 33(2)(c) to (f) be deleted, if only to give me an opportunity to express my concerns about this aspect of the Bill. In these two clauses, we are talking about information being disclosed by gas and electricity companies and information being given by other authorities to gas and electricity suppliers. That is why one or two of my thoughts went searching as to why they would be in this group.
My amendment is very much a probing amendment and seeks clarification. The Explanatory Notes state that these paragraphs are included to enable personal information to be used in,
“criminal investigations, civil or criminal legal proceedings or the prevention or detection of crime or the prevention of antisocial behaviour”.
My amendment refers particularly to subsection 2(c) in that group. Will the Minister explain in what way the gas and electricity suppliers will be involved in such activities other than reporting persons and their behaviour to the police? I do not quite see what responsibility the gas or electricity suppliers have with this part of the Bill in that context.
I also confess considerable alarm at the prospect of power suppliers having access to very personal and private information to enable them, as I understand it, to investigate, detect, prevent or prosecute anything outside the realm of their normal expertise. Surely, their original expertise was the supply, maintenance and, where necessary, repair of power lines and pipes, but in this part of the Bill it seems to go very wide. I shall speak to other amendments later, so I will not go on at great length at this stage, but this part of the Bill raises questions for me. I can see some of the advantages of data sharing, but how do we define antisocial behaviour and what does that have to do with gas and electricity boards? I may be wrong; I look forward to hearing from the Minister.
My Lords, I come rather late to the table with the Bill, but fresh, if that is the term, from the Investigatory Powers Act, as does the noble and learned Lord. Like me, he may have reflected on the fact that one of our basic documents in debating the Investigatory Powers Act was called by David Anderson A Question of Trust; the issue of trust is equally relevant to the provisions in the Bill. Like other noble Lords, I see the value of sharing information but—and for me it is a big “but”—with constraints, limits, conditions, checks. I would say balances but I do not think they always do the job. It would be too easy in this area to let convenience obscure other considerations. I have concerns about fundamental issues and I have difficulty, as I suspect do other noble Lords, knowing quite what to raise where, but my most fundamental concern is about respect for privacy. The use of bulk data, which we will come to, is bound to raise this.
I share concerns which have been raised about providers—not the public authorities and public services themselves, but the providers. Maybe we have to be realistic, as our public services are now provided so much through commissioning and procurement but, as I read the Bill, the regulations will not be required to list specific providers. I may be wrong about that. If providers have to be included, it would be appropriate for the public to be reassured, for instance, that the public authority in question maintains a register of its providers and publishes it. Maybe, also, all records of information held under these provisions should be destroyed at the termination of the provider’s contract.
The purposes set out here include well-being, which includes the contribution to society. I am not going to let this pass without saying that that risks being read, and I read it, as very paternalistic. I cannot see how it properly covers anything that is not covered by the other well-being provisions. Others have suggested that Clause 30 might lead to profiling. There is certainly a concern over health information, which we will come to separately. I also find it quite hard to think: if you are not contributing to society, are you not deserving of or entitled to public services? I think it is a very unfortunate term to use in legislation.
I share the concerns about Clause 33. At the very least, to share personal information to prevent anti-social behaviour which is not a crime—we know it is not a crime; you do not even need to go to the legislation about anti-social behaviour to know that, because it is referred to separately from crime—is going several steps too far. I start—I am not suggesting that others do not—from the premise that personal information should be kept confidential unless there is good reason not to do so, and if it is not confidential it needs to be treated with the greatest care and sensitivity. Respect for private life is one of our basic values. The Minister would be able to quote Article 8 of the European Convention on Human Rights—as I will do—without reading it. It says that there are “necessary”—I stress that word—exceptions in the interests of national security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. I support the amendments—I think they are in this group—that would import the term “necessary”.
Article 8 refers to disorder and crime, but—I will not be surprised if the Minister quotes some case law at me on the definition of “disorder”—I would have thought that in this context it must refer to something a good deal more serious than what may fall within “anti-social behaviour”.
The Investigatory Powers Act includes the much-welcomed and much-discussed “privacy” clause; during the debate on that we considered the requirements of both necessity and proportionality. The Act also refers specifically to the Human Rights Act and to crime as a consideration when it is a serious crime, and it refers to using “less intrusive means”. These points are all relevant to this debate.
For my part, this amounts to support for all the amendments in the group and a concern to persuade the Government to look at the issues through the lens of rights to privacy as well as efficiency. Most citizens accept—indeed, expect—that in a digital age government departments will share information, but with narrower purposes and stricter checks than the Bill offers.
My Lords, I am obliged to noble Lords for their observations on this group.
The powers in Chapter 1 of Part 5 will support the delivery of better services to achieve specified objectives, such as providing assistance to those suffering, for example, from fuel poverty. Your Lordships would all appear to be agreed on the need for effective data-sharing, but when we talk about that we must mean data-sharing that is secure and commands the trust of the general public—that is sufficiently ring-fenced to give confidence in the whole process. No one would take issue with that.
In that context I make this observation at the outset. It applies not only to this group of amendments but to further groups that we will come to this afternoon and perhaps much later this evening. We have to look at the provisions in this Bill in the context, first, of the Data Protection Act 1998, because the provisions of that Act apply in the context of this Bill. Therefore, as we look at the Bill, we must remember the protections that already exist in law with regard to data in this context. First, processing of personal data must always be fair and lawful. Secondly, data cannot be processed in a way that is incompatible with the purpose for which they were gathered. Thirdly, personal data must be,
“adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed”.
The personal data should be “accurate”, so a subject may be in a position to demand that they should be corrected.
Furthermore, on the point made by the noble Baroness, Lady Hamwee, personal data can be kept no longer than is necessary for a particular objective. Where, therefore, they have been employed for a particular objective—or a party has received them for a particular purpose—and a need to keep the data for that purpose can no longer be displayed, they cannot be retained.
My Lords, will the noble and learned Lord address—in a later group, if not this one—why the terminology in the Bill is “personal information” rather than “personal data”, which might have made the marrying-up of the legislation a bit easier?
Indeed I can. The reason is that in the present context, personal information extends to bodies corporate and other personalities that are not otherwise covered by the first definition. I will elaborate upon that later but that is why there is a distinction between the two terms. We can see that the two terms substantially overlap but it is only because of that technical distinction that they are employed in this way. I hope that that satisfies the inquiry from the noble Baroness, Lady Hamwee.
The Data Protection Act not only circumscribes the use of data in very particular ways—for example, personal data must be processed in accordance with the data subject’s rights under the Act and be held securely to guard against unlawful or unauthorised processing, which addresses a point that many of your Lordships referred—but provides remedies in the event that those obligations are not adhered to. Generally speaking, that involves a complaint to the Information Commissioner.
Of course there have been lapses in data control. We are well aware of many of them. The noble Lord, Lord Collins, alluded to Concentrix, where there clearly appeared to have been lapses such that the Revenue terminated its contract without further notice in November of last year. We recognise that there are risks associated with data and data-sharing. That is why we emphasise the need to look at the provisions in the Bill not only alone but in the context of the Data Protection Act.
There were obviously risks associated with the contract for Concentrix and the fall-out from that contract is certainly ongoing, because of the people who have suffered hardship. The Government will undoubtedly have to investigate even more because at the moment, we are dealing only with the people who have appealed. Can the Minister tell us exactly why the existing provisions for a risk assessment did not stop this contract from going sour?
As the noble Lord is aware, Concentrix was not the only incident in which there were data breaches. They have happened not only in the context of parties operating with government but also entirely in the private sector. So far as I am aware, no one has made a claim for infallibility where data protection is concerned. Albeit that we aspire to the highest standards in data protection, we are not making claims of infallibility.
The noble Lord, Lord Collins, also referred in the present context to the GDPR, which will come into effect as a European regulation in May 2018. I reiterate that the provisions in Part 5 of the Bill are compatible with the GDPR. The noble Lord appeared to take some issue with that term, but let me be clear: the provisions of Part 5 are drafted in such a way as to be compatible with the regulation. When the regulation comes into direct force, we will look at the provisions of the Act and the codes of practice to ensure that they are consistent with it. That is the way in which these things are done. The regulation is not yet in force and will be applied to the existing statutory structure from May 2018. I reassure him that it has always been intended that Part 5 of the Bill should be compatible with the regulation, for very obvious reasons.
Then there is the matter of the draft codes of practice. At this stage they are, of course, a draft. Those drafts have incorporated comments and advice from practitioners right across the public sector, from the Information Commissioner and from the devolved Administrations, so they have brought in that body of knowledge at this stage.
We are of course aware that the Delegated Powers Committee has made a series of observations on these matters. As the noble Lord so ably anticipated, we are considering its recommendations. With regard to timescale, we fully intend to respond to those recommendations before we reach the Report stage of the Bill. I cannot be more precise at this stage but clearly it is in everyone’s interest that we should be able to respond within such a timescale. That certainly is our present intention.
Perhaps I may move on just a little. Amendment 80 requires that additional approval be obtained where information received under the powers is to be used for purposes other than the specified objective. Again, one is reading this against the background of the DPA. While we appreciate the need for limitations on these powers, this amendment would undermine the policy rationale behind including these exceptions. Information-sharing could highlight problems or issues where public authorities would be expected to act. Exceptions included in our powers include investigating criminal activities, safeguarding vulnerable adults or children, and protection of national security. These exceptions are included to enable action to be taken in respect of matters of pressing public interest.
As I mentioned earlier, the second data protection principle of the Data Protection Act requires that data shall be obtained only for a specified purpose and shall not be further processed in a manner incompatible with that purpose. If a data controller wishes to make use of information for a purpose other than the one for which it was originally gathered, fairness will be a key consideration in deciding whether the additional purpose is compatible with the original purpose. The restrictions on use of personal information in these clauses are therefore intended to be consistent with this approach, and all processing of data under the powers must, I repeat, be compliant with the DPA. The combination of the restrictions in our gateways and the existing rules under the DPA mean that, in our view, this additional approval requirement, as set out in the proposed amendment, is not required.
I turn to Amendment 80A, which seeks to remove the provision from the public service delivery power which enables persons providing services to a public authority, such as charities and private companies, to be listed as “specified persons” permitted to make use of the power to share information. This in effect would mean that only public authorities can be “specified persons” as defined by the Bill.
We posed the question of whether such bodies should be included within the definition of specified persons within our public consultation on these powers. The majority of respondents supported their inclusion. After all, effective public service delivery depends on multi-agency co-operation, and increasingly this involves charities and private and third-sector organisations. Bodies outside the public sector provide public services in a way that often leaves them holding valuable information about public services. It is important that public authorities can access this information to improve public service delivery. These powers provide for a consistent and transparent framework for sharing information. Removing the ability of public authorities to share with charities and private sector organisations in this way would significantly restrict the effectiveness of the public service delivery provisions.
I turn to Amendment 85, tabled by my noble friend Lady Byford. This amendment intends to restrict the exceptional purposes for which personal information may be used or disclosed for purposes other than the specified objective by limiting the existing exceptions to circumstances where the information has already been made lawfully available to the public or the data subject consents. I remind noble Lords that public authorities would need to apply the DPA, and specifically its third principle of data minimisation, to the processing of personal information under these powers. As such, only personal information that is necessary to fulfil the specified purpose will be shared.
My noble Friend, Lady Byford, raised the question of power suppliers having certain powers. Those powers are circumscribed by the principles enunciated in the Data Protection Act. It is in that context that these powers have to be considered. That includes the reference to anti-social behaviour, a point taken up by the noble Baroness, Lady Hamwee. As she perhaps anticipated, I was going to quote the fact that Article 8 of the convention refers not just to “crime” but to “disorder or crime”. One has to remember that there is a need for respect for private life, but that need for respect for private life works in two directions. Those who are victims of anti-social behaviour also have a right to a private life. It is in that context that we have to consider these provisions.
The noble Baroness, Lady Hamwee, then embraced all the remaining amendments in the group, and I shall respond to them shortly. Amendments 94 to 98, 122 to 127, 142 to 146 and 164 to 168 relate to the public service delivery, debt, fraud and research powers and seek to impose tighter controls restricting the onward disclosure of personal information disclosed under these powers. Clauses 34, 43, 51 and 59 prohibit the onward disclosure of personal information disclosed under the powers. Anyone who knowingly or recklessly breaches that prohibition will commit an offence. The limited exceptions to this general prohibition are set out in subsection (2) of each clause and have been drafted with input from other government departments to ensure that the Government comply with their obligations—for example, in terms of disclosing documents following court orders—and that our unlawful disclosure provisions do not have unintended consequences for operational arrangements, such as those supporting the police and other emergency services.
Amendments 94, 122, 142 and 164 propose limiting some of these exceptions to what is “required by” rather than “permitted by” existing legislation. The remaining amendments restrict further disclosure of such personal information to where its disclosure is necessary in certain circumstances, such as for the purposes of a criminal investigation or national security. I respectfully suggest that these amendments are not necessary. The principle of data minimisation, which I have already alluded to, applies to the processing of personal information under these powers, and so only that which is necessary to fulfil that purpose will be shared. Preventing the use of these powers for the onward disclosure of information where it is already permitted under existing legislation would simply introduce unnecessary complexity and could inhibit the disclosure of information for legitimate purposes.
On that basis, I invite the noble Lord to withdraw the amendment. I say very fully that these are well-intentioned amendments because we understand what lies behind them and why the probing amendments in this group have been tabled.
I specifically asked why the responsibility has been placed on gas and electricity suppliers to have regard to some of the things stated in the Bill, and I would be grateful for an answer. I do not mind if the answer is not given now, but if that could be clarified I would be grateful.
I am perfectly prepared to write to my noble friend to clarify that point, and I will place a copy of any letter in the Library.
I thank the Minister for his response. One of the things that we will encounter as we go through this section is the fact that the 1998 Act has some fundamental principles but that we have the Bill before us because there is a need for greater clarity. The world has changed in the past 20 years, certainly in the way that we handle and interrogate data. We no longer simply say that this set of data will go to that person and so on. We do not necessarily even have to share the whole dataset. The point is about how one might interrogate data. It is a very different world. I am not suggesting for one moment that errors do not occur, accidents do not happen and mistakes cannot happen, but in the modern world we conduct risk assessments to understand how we can minimise those things. That is what I want properly addressed when we come back to some of these issues.
The Minister says that the Government will consider the report of your Lordships’ committee. If there are to be further amendments, I hope that we will have time to consider them and even to put down our own amendments to ensure that the principles about which we are concerned will be able to be addressed. With those comments and, if you like, fair warnings, I beg leave to withdraw the amendment.
Amendment 80 withdrawn.
Amendment 80A not moved.
Informal European Council
My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows.
“Mr Speaker, before I turn to the European Council, I am sure the whole House will want to join me in sending our congratulations to Her Majesty the Queen as she marks her Sapphire Jubilee today. It is testament to Her Majesty’s selfless devotion to the nation that she is marking becoming our first Monarch to reign for 65 years not with any special celebration but, instead, by getting on with the job to which she has dedicated her life. On behalf of the whole country, I am proud to offer Her Majesty our humble thanks for a lifetime of extraordinary service. Long may she continue to reign over us all.
Turning to last week’s informal European Council in Malta, Britain is leaving the European Union but we are not leaving Europe—and a global Britain that stands tall in the world will be a Britain that remains a good friend and ally to all our European partners. So at this summit, we showed how Britain will continue to play a leading role in Europe long after we have left the EU, in particular through our contribution to the challenge of managing mass migration, through our special relationship with America and through the new and equal partnership that we want to build between the EU and an independent, self-governing, global Britain. Let me take each point in turn.
First, on migration, the discussion focused in particular on the route from Libya across the central Mediterranean. As I have argued, we need a comprehensive and co-ordinated approach, and that is exactly what this Council agreed. This includes working hard in support of an inclusive political settlement to stabilise Libya, which will help not only to tackle migration flows but to counter terrorism. It means working to reduce the pull factors that encourage people to risk their lives, building the capacity of the Libyans to return migrants to their own shores, treat them with dignity and help them return home. It means looking beyond Libya and moving further upstream, including by urgently implementing the EU’s external investment plan to help create more opportunities in migrants’ home countries and by helping genuine refugees to claim asylum in the first safe country they reach. It also means better distinguishing between economic migrants and refugees, swiftly returning those who have no right to remain and thereby sending out a deterrence message to others thinking of embarking on perilous journeys. The Council agreed action in all of these areas.
Britain is already playing a leading role in the region and at this summit I announced further steps, including additional support for the Libyan coastguard and more than £30 million of new aid for the most vulnerable refugees across Greece, the Balkans, Egypt, Tunisia, Morocco, Algeria, Sudan and Libya. Britain is also setting up an £8 million special protection fund to keep men, women and children in the Mediterranean region safe from trafficking, sexual violence and labour exploitation as part of our commitment to tackle modern slavery. The Council agreed with my call that we should do everything possible to deter this horrific crime, including by introducing tough penalties for those who trade in human misery and by working together to secure the necessary evidence for prosecutions that can put these criminals behind bars where they belong.
Turning to America, I opened a discussion on engaging the new Administration, and I was able to relay the conversation I had with President Trump at the White House about the important history of co-operation between the United States and the countries of Europe. In particular, I confirmed that the President had declared his 100% commitment to NATO as the cornerstone of our security in the West. But I also made clear that every country needs to share the burden and play its full part, meeting the NATO target of spending 2% on defence. It is only by investing properly in our defence that we can ensure we are properly equipped to keep our people safe.
I was also able to relay my discussions with President Trump on the importance of maintaining the sanctions regime on Russia in response to its actions in Ukraine. I very much welcome the strong words last week from the new US ambassador to the United Nations, Nikki Haley, in confirming America’s continued support for these sanctions.
Of course, there are some areas where we disagree with the approach of the new Administration, and we should be clear about those disagreements and about the values that underpin our response to the global challenges that we face. I also argued at the Council, however, that we should engage patiently and constructively with America as a friend and ally—an ally that has helped guarantee the longest period of peace that Europe has ever known. We should be clear that the alternative of division and confrontation would only embolden those who would do us harm, wherever they may be.
Finally, on Brexit, European leaders welcomed the clarity of the objectives that we have set out for the negotiation ahead. They warmly welcomed our ambition to build a new partnership between Britain and the European Union that is in the interests of both sides. They also welcomed the recognition that we in Britain want to see a strong and successful European Union, because that is in our interests and the interests of the whole world.
On the issue of acquired rights, the general view was that we should reach an agreement which applied equally to the other 27 member states and the UK, which is why we think a unilateral decision from the UK is not the right way forward. As I have said before, however, EU citizens living in the UK make a vital contribution to our economy and our society, and without them we would be poorer and our public services weaker. So we will make securing the reciprocal agreement that will guarantee their status a priority as soon as the negotiations begin, and I want to see this agreed as soon as possible, because that is in everyone’s interests.
Our European partners now want to get on with the negotiations. So do I, and so does this House, which last week voted by a majority of 384 in support of the Government triggering Article 50. There are, of course, further stages for the Bill in Committee and in the other place, and it is right that this process should be completed properly, but the message is clear to all: this House has spoken, and now is not the time to obstruct the democratically expressed wishes of the British people. It is time to get on with leaving the European Union and building an independent, self-governing, global Britain. I commend this Statement to the House”.
My Lords, I thank the noble Baroness for repeating the Statement today and concur with her congratulations to Her Majesty the Queen on her 65th anniversary as the nation’s monarch. I hope that Her Majesty is able to commemorate the event in some way, but I suspect for her that this is an anniversary also tinged with sadness at the loss of her father. He endeared himself to the nation, and his early death was a terrible shock. She had not expected to be Queen at such a young age. That was at a time of great change in the world, which is also the case today. It was also a time when, following the war, there were many refugees across Europe. Here we are, 65 years later, and with yet another European summit discussing how to prevent further refugees and mass migration, this time from the Middle East and north Africa.
The Statement talks about the pull factors that lead to people seeking safety and a better life away from their homes. We should always keep in our mind the desperation that leads people to risk their lives and those of their families in leaving their homeland, often leaving behind all their possessions, other family and friends, and often paying large amounts to criminals. In looking at the push factors too, can I ask the noble Baroness about the EU external investment plan? The Statement refers to creating more opportunities in migrants’ home countries. Can she expand on that? I am not sure of the details at all. Is it limited to economy and employment opportunities or is it more linked to security? It would be helpful to have some more information and also to know how it is going to be implemented and monitored, and how success will be measured.
Can the noble Baroness say more about the conversations the Prime Minister had with President Trump when she was at the White House? She said she was able to relay the conversations that she had with the President on the relationship between the USA and European countries. I think we are all quite interested in that conversation and would be interested to hear more. The Prime Minister’s assurance that the President had declared his 100% support from NATO was particularly welcome, but we have not yet heard it from his own lips—or, perhaps more importantly, from his own Twitter account. What was the response from her European colleagues on this point?
The Minister had a number of side meetings but apparently not with the German Chancellor Angela Merkel, as they were able to discuss their issues informally in the margins outside the arranged meetings. Those all-important private discussions can be very productive in building relationships and being frank and open with European leaders, so it makes the situation even more difficult that the Prime Minister then had to pack her bags and leave while the remaining 27 countries further considered other issues relating to the EU that we cannot be part of. What plans do the Government have to ensure that we do not lose out by not being at the table, not just for the formal parts of the meeting where they are discussing the EU post Brexit but for those informal discussions that lead to trust and develop the relationships that will be all-important as we move forward?
Malta has been a close and important ally of the UK over many years; it is the only instance of an entire country being awarded the George Cross. Obviously it is important that we maintain what we would call that “special relationship”, so what are the Government’s plans to ensure that that relationship continues post Brexit? The Prime Minister met the Prime Minister of Spain. Did she discuss Gibraltar, and had she met the Gibraltarian First Minister before she was able to raise any such issues with the Spanish Prime Minister?
On the issue of EU citizens, I do not think today’s Statement gives anything like the reassurance they require so that they can continue with their lives, their jobs, their homes and their families in this country. It is in the Prime Minister’s gift to say so. Even UKIP said so on television yesterday, so why the Prime Minister cannot make such a commitment I have no idea. It is about time we heard something stronger from the Prime Minister on this issue.
The section in the Statement regarding Brexit says the European leaders,
“warmly welcomed our ambition to build a new partnership between Britain and the European Union that is in the interests of both sides. They also welcomed the recognition that we in Britain want to see a strong and successful European Union”.
I hope that is not an overoptimistic view. We have some tough negotiations ahead in which we have to get the best possible deal that we can in the interests of the UK and UK citizens. If there is any complacency at all that these negotiations are going to be easy, I do not see how we can get the best deal. I hope the noble Baroness can assure me that this is not an overoptimistic view and that there is awareness of the difficult discussions and negotiations that are going to take place.
On the last part of the Statement, I am sure I am not the only one in your Lordships’ House who is getting tired of the Government going on and on about not “obstructing”—I think that is the latest phrase—“the democratically expressed wishes of the British people”. I do not know how many times this has to be said about blocking, obstructing, wrecking or whatever is the latest word the Prime Minister has found in her thesaurus. I say to the noble Baroness that asking questions and making suggestions for amendment is not blocking, obstructing or wrecking; it is called parliamentary democracy. That should be welcomed by the Government because that is the way in which we will get the best deal, not just by accusing people who ask questions of blocking. I do not know why those who are in charge of the negotiations are so frightened of questions, because time and again we hear that only by questioning and scrutiny do we get better legislation, and that is all this House would ever seek to do.
My Lords, I join the Prime Minister and the Leader of the House by congratulating the Queen on her Sapphire Jubilee—a truly remarkable achievement.
With every passing Council meeting, we see the influence of Great Britain and the Prime Minister diminishing. In October, she made a five-minute speech at 1 o’clock in the morning. In December she was pictured standing alone, desperately looking for someone to talk to. This time, she was rebuffed as she offered to act as a bridge between Europe and the USA. One does not need to be an engineer to know that, to be sustainable, a bridge needs firm foundations on both sides of the stream. At the moment the UK is demolishing one set of foundations—namely, those on the European side of the stream—and therefore is it surprising that countries within the EU, from the largest to the smallest, have treated with almost total disdain the Prime Minister’s suggestion that, in our new semi-detached state, we might act as a bridge?
One of the more useful parts of the Prime Minister’s visit to Malta might have been the formal meeting on her agenda with the Chancellor of Germany. Could the Leader of the House explain why that formal meeting was cancelled? Admittedly, the two of them did chat briefly while walking down the street, but frankly that does not constitute a sensible degree of conversation with the most important of our EU partners. Will the noble Baroness say what plans the Prime Minister has to have a substantive discussion with Angela Merkel, to make good the fact that they had very little time, while walking down the street on a sunny day in Valletta, to talk about anything of great substance? This was an extremely short visit by the Prime Minister. As at previous Council meetings, she had to leave after the pudding and probably even before the coffee was served. Not surprisingly, perhaps, she was not present as the other leaders of the EU discussed how they might make preparations for the 60th anniversary of the Treaty of Rome. Will the Leader of the House say whether she expects the UK Government to be represented at those celebrations when they eventually take place and, if so, by whom?
The most substantive part of the discussions in Malta were about migration from Libya. We welcome the fact that it was possible to make progress, and the Prime Minister takes great satisfaction from the fact that she played a significant part in those negotiations. May I echo the question asked by the noble Baroness, Lady Smith, about how the Government expect to play such an important, useful part in future, when they are not even at the table at which those discussions take place? Of course, the vast bulk of the refugees from Libya is going to Italy. We have discussed before in your Lordships’ House the extent to which her Majesty’s Government are making good their commitment under the Dubs amendment to bring child refugees who find themselves in Italy to the UK. I apologise if I have got the figure wrong, but I think that when it was last discussed the Government said one person from the Home Office had been sent to Italy to help in that process. Will the noble Baroness confirm whether that is indeed the case, whether she thinks that to be an adequate response to this humanitarian crisis, and how many children have come to the UK from Italy under the provisions of the Dubs amendment?
Finally, on Brexit and the vexed question of acquired rights, many people in the country just do not understand the Government’s attitude in denying EU citizens living in the UK the knowledge that they will be able to remain post Brexit. The Government seem to be unaware of the crisis that is developing as a result of this policy. Those who saw the BBC news in London will have seen what is happening to the recruitment of EU staff in hospitals in London. Again, I will be corrected if I am wrong, but I think that the figure given of the number of nurses coming to London hospitals has, since last year, fallen by approximately 90% That is an extraordinarily worrying phenomenon, given that we are far from meeting the staffing requirements that the NHS has set itself, and it is by no means clear where else the Government expect those nursing numbers to be made up.
One reason why people are unwilling to come at the moment is that they feel that the attitude of the Government in respect of existing EU citizens gives them no confidence that they will be welcome. Another is that they have no sense of how the rules are going to operate in future. So while the Government have many things about which they do not want to give a detailed account, could they say how they intend to approach the question of migration from the EU of people whose skills we need—whether they are the brightest and the best, at a very high skill level, whether they are medium-skilled people or whether they are the kind of people whom we will require in future to enable our agricultural, horticultural and hospitality sectors to survive and prosper?
I am sorry to start on a discordant note, but I am afraid that I disagree with the noble Lord’s assessment of the Prime Minister’s role at the summit. In fact, it showed that, once again, while we are a member of the EU, we will continue to play a full part. The Prime Minister opened the discussion on migration and was specifically asked to lead the discussion over lunch about the new American Administration. That is quite clear evidence that, while we remain in the EU, we will continue to play a central role in discussions. As I have said, we will also continue to make sure that we have a strong relationship with our EU partners as we go forward.
On some of the other comments and questions raised, the noble Baroness, Lady Smith, asked about the EU’s external investment plan, which, as she will know, was agreed in late 2016. It is now being considered by the European Parliament, and we are eager for it to be implemented as soon as possible. It is focused on creating economic opportunities in countries of origin and transit to reduce push factors.
The noble Baroness also asked about the conversations that the Prime Minister had about NATO. While I cannot speak for the President’s Twitter account, I can say that the Prime Minister was quite clear that she did get confirmation from President Trump that he is 100% behind NATO, and this was very much welcomed by our European partners.
On the Prime Minister’s discussions with Chancellor Angela Merkel, part of the reason that they were able to have full and frank discussions during the walkabout was that the initial meeting on migration finished quite early, so they had more time. As two women who get to the point, it is quite a good sign of the positive relationship that they have that they can discuss what they need to in a timely fashion.
Both the noble Baroness and the noble Lord asked about our relationship with the EU. Once again, I can say that we are absolutely committed to maintaining good relations with our EU partners; we want the best deal for Britain and the UK, and we believe that it is only right that the 27 continue to discuss their approach to our negotiations. We want to make sure that both sides have the most fruitful negotiations possible, and they need to prepare for those just as we are preparing for them in this country.
On the status of EU nationals living in the UK and UK nationals living abroad, as we have said, we are very keen to try to come to an agreement as soon as we can. In conversations with EU leaders, they have made it very clear that they want to discuss the status of nationals as part of the negotiations. There is good will on all sides, and I believe that the readout of some of the conversations that the Prime Minister had with the Prime Minister of Spain shows that. That is the position that the EU leaders have taken and one that we have to respect, but it is certainly a priority, and the Prime Minister once again showed that by raising it with her counterparts.
I assure the noble Baroness that we are all very clear that discussions and negotiations will be difficult and challenging, but we believe and are confident that it is in in the interests of the EU and of this country to come to the best deal that we can. We are starting from a strong position of wanting the best for the EU and for this country, so we are confident that we will get to a deal that we can all be happy with.
In terms of parliamentary scrutiny, the noble Baroness and all noble Lords will be aware that there has not been a sitting day since the referendum when Parliament has not discussed, debated or scrutinised Brexit in one form or another. There have been 70 parliamentary debates already on Brexit, as well as over 30 Select Committee inquiries. We understand and want the scrutiny of Parliament and Parliament’s involvement in helping with these negotiations. As I have said, I think that we are making good progress on that already.
My Lords, before we proceed to Back-Bench questions, I invite your Lordships to observe the normal rotational pattern of posing questions to try and ensure fairness of opportunity across the Chamber.
My Lords, I very much welcome the Statement and, in particular, the congratulations that were offered to Her Majesty. I also welcome the very robust response that the noble Baroness gave. Does she agree that there seems to be a delusion in the other place, and maybe even in parts of this House, that ahead lies some neatly tied-up and bundled bespoke deal that will comprehensively cover all of our problems? Would it not be better to explain at this stage that we will see a whole range of sector-specific trade deals? For example, there will be deals on defence—such as those the Prime Minister addressed in Malta—on migrants and refugees, and on crime. These are all practical arrangements, which will be required in order to build a new relationship with the European Union and other independent states. Would it not be better to explain this than for us to believe that a marvellous, complete deal will emerge after the negotiations? It will not.
I thank my noble friend for that question. I think that we are all under no illusion about the breadth and depth of the relationship we have with Europe at the moment and the scope of the negotiations. Some areas will no doubt be easier to come to an agreed position on than others, but we are determined to go in with a positive and optimistic frame of mind and to achieve a deal that works best for this country. We believe that our European partners will want to work with us to ensure that we create a new and positive partnership for both sides.
My Lords, did the Prime Minister, in her introduction to the European Council on the relationship with the United States, or in her walk with the Chancellor of Germany around the streets of Valletta, congratulate Mrs Merkel on her telephone call with President Trump, in which Mrs Merkel very clearly said that we all have to respect our international obligations to refugees? Did the Prime Minister not feel a certain sense of shame that, in her own encounter with President Trump in the White House, she did not have the courage to make that point when he told her of his impending executive orders?
The Prime Minister has been very clear that we believe the ban is divisive and wrong and that it is absolutely not a policy that we would pursue. She had a good conversation with Chancellor Merkel which covered a whole range of issues.
My Lords, when the Prime Minister introduced her White Paper and Lancaster House speech—the Statement said that it was welcomed, particularly the reference to a new partnership, which I think is a very good label to give it—did her colleagues indicate whether they would start negotiating on the new partnership as soon as Article 50 is triggered, or do they still hold to the Commission’s point of view that the negotiations on divorce have to come first and that the other negotiation can only be consecutive? Secondly, did she find that all 27 of her colleagues agreed with the view held by herself and the Home Secretary that President Trump’s travel ban is not only wrong but also extraordinarily likely to lead to increased radicalisation in Muslim countries, which can only put European countries at greater risk?
As I said in the Statement, the Prime Minister has said that our European partners want to get on with the negotiations. We all want to move on so that we can come to a good deal. As I have also said, we have been very clear that we believe the ban is divisive and wrong.
My Lords, will the noble Baroness the Leader of the House, whom I thank for repeating the Statement, tell us what words President Trump used when he gave his commitment to NATO? My understanding is that the Prime Minister said that he gave a 100% commitment to NATO, but I have not seen the words used by President Trump. It is rather similar to the occasion when Mr Gove asked the President whether Britain would be high up in the queue for a trade agreement. I do not think that I saw the words used. This is more than quibbling, because we need to know what the real commitment and intentions of the President of the United States are. Secondly, will the noble Baroness explain why it is a sequitur that, because we want an agreement with the 27 on acquired rights, the UK cannot therefore make a unilateral start on that? I suggest that that is just another pretext. If the UK showed good will by giving a unilateral guarantee, which morally and economically is the right thing to do, that would be the basis for an agreement. As the noble Baroness well knows, there is cross-party support in this House and way beyond it for the Government to do that rather than keep finding new excuses.
As I was not in the room when President Trump and the Prime Minister had a conversation, I cannot give the noble Baroness a verbatim account. However, I can tell her what the Prime Minister has told us: that President Trump confirmed that he was 100% behind NATO. I believe that he nodded and agreed with that when he was standing at his podium. However, I am afraid that I was not there any more than she was.
As I have said, I cannot say any more about the situation regarding the status of EU nationals. We have been very clear that this is a priority for us and that we want to come to an agreement as quickly as possible. However, we also have to respect the position of our EU partners. We will try to address this issue very quickly. The Prime Minister has been extremely clear, as have I and all my Front Bench colleagues, that we hugely value the contribution of EU citizens here, and that this is a priority for us.
My Lords, further to that point, the Statement says that the general view was that mutual recognition should take place. Which of the 27 member states do not agree with that? Is it not rather depressing that the Prime Minister has already made weeks ago an offer of mutual recognition for their 3.5 million-plus people living here and our 1.2 million people living there? Is it not very disappointing that they have not already agreed that? On the question of NATO, could the noble Baroness tell us which of the EU nations are actually refusing to pay their 2% of GDP? Is not President Trump quite right in insisting that they should?
As I have said, we believe there is good will on all sides to look at the status of both EU nationals in the UK and UK nationals in member states. We consider this a priority. We believe it is something on which we will have very constructive early discussions with our European partners. We have also said in relation to NATO—the Prime Minister discussed this over lunch—that we want to encourage other European leaders to deliver on their commitment to spend 2% of their GDP on defence. We believe that a number of European countries are actively considering that and will be looking to do it in due course.
My Lords, is it correct, as reported in the newspapers, that the Spanish leader has indicated that he would be very happy for British residents in Spain to enjoy the same rights as they do at present? If that is the case, is it not wrong to criticise the Prime Minister for arguing that we should get on with moving Article 50 so that there is an opportunity for those negotiations to continue? Could not the criticism that the Prime Minister should take a moral lead apply equally to the Spanish Prime Minister or to any of the other European leaders? The problem here is Europe refusing to guarantee the position of British citizens in Europe. My right honourable friend the Prime Minister is surely right to think about them as well as EU citizens living here.
Certainly, the fact that the Prime Minister and the Prime Minister of Spain had constructive discussions is very positive. As I said, it shows that there is good will on all sides to try to resolve this matter as quickly as possible.
My Lords, is it not striking how often government Ministers say how very, terribly, extremely influential the Prime Minister is? I do not recall that ever being said about Tony Blair, Gordon Brown or, for that matter, Margaret Thatcher. They always were very influential.
I am telling you she is influential because you are asking me.
My Lords, is not the point of a negotiation or a package of negotiations of the sort we will see with withdrawal that we will start the negotiations but nothing will be agreed until everything is agreed? Is not the danger of looking at reciprocal agreements on the rights of EU and UK citizens that nothing will be decided until the day we leave the European Union, which will be far too late to give certainty to EU nationals currently resident in the United Kingdom—something that we could do unilaterally?
I can only repeat what I have said in answer to all the questions on this, which is that we are looking for an early agreement.
My Lords, I welcome the Statement repeated to the House this afternoon, especially the assurance given by the Prime Minister that President Trump will be 100% behind NATO. As almost one-quarter of the European Union countries refuse to join NATO, when can we have a 100% guarantee that the nations of the European Union will also support NATO?
We are very clear that NATO is the cornerstone of the UK’s defence and security, and our commitment remains as strong as ever. As I said, during the lunch the Prime Minister discussed our commitment and that of our European partners to NATO. I think that there was general agreement on the importance of the organisation going forward.
My Lords, last week in public session, evidence was given to one of this House’s sub-committees of the European Union Select Committee to the effect that, going forward, agricultural industries will require between 90,000 and 100,000 workers annually on a temporary, not a permanent, basis—people who come for seasonal work and then return to their countries. Therefore, it is not just the matter of the people in our universities, schools and hospitals or the City of London that needs to be resolved; this particular question, affecting, as it will, the whole future of much of the agricultural and horticultural industries in this country, also needs an urgent resolution.
The noble Lord is right that we need to address the issues and needs of all sectors. That is why the work of the House’s EU committees is so important. I look forward to reading the report and am sure that excellent suggestions will be put forward about the kinds of issues that we need to think about during our negotiations.
My Lords, I thank my noble friend for repeating the Statement. Does she find it strange that many Members of this House and another place are threatening to vote against the imposition of Article 50 after voting in favour of holding the referendum in the first place? Does she recall any of them saying during the referendum campaign that, however people voted, they would ignore the result of the referendum, whatever it was?
My noble friend is right. The Article 50 Bill is indeed a straightforward Bill: it is not about whether the UK should leave the European Union—that decision has been made—but about triggering Article 50.
My Lords, I have never understood why Gibraltarians would not wish to have feet in both camps, although that is clearly a matter for them. The Prime Minister was absolutely right to draw attention to the economic well-being of LEDCs—less economically developed countries. Have the Government decided which competent UK authority will be responsible for preferential access negotiations post Brexit?
I am afraid that I do not know the answer to that question and will have to write to the noble Viscount.
My Lords, I thank the noble Baroness for repeating the Statement. Does she agree with me about the importance of EU agencies such as FRONTEX, which protects our external borders along with those of other member states, the European Fundamental Rights Agency and the European Medicines Agency? Does she believe in the effectiveness of these organisations and their benefit to the United Kingdom? If so, why are we putting that at risk by going for a hard Brexit?
The noble Lord is absolutely right. As we discussed in Questions today, many European bodies play an extremely important role and are highly valued in terms of the standards, co-operation and everything else that we get out of them. All of these will be up for negotiation, and we will obviously want to maintain very close relationships with those organisations that add huge value. However, this will also give us an opportunity to look at how we can perhaps improve standards and quality in this country, because we will be free to do that.
My Lords, when considering the quality of the commitment of the President to NATO, are we entitled to look at his continuing favourable ambiguity towards Mr Putin, whose avowed intention is the undermining of NATO?
The Prime Minister has been extremely clear to both President Putin and, indeed, the President of the United States that our relationship with Russia cannot be business as usual, as a result of its actions in Ukraine and Syria. Where there are issues that we disagree on, we should hold Russia to account, but we also need to have hard-headed engagement where we can move forward. As the Prime Minister was very clear and said to the President, we need to engage but beware.
My Lords, can I clear up a small point? I notice in the printed version of the Statement—or the Statement from the other place—that in “Global Britain” the “Global” is in upper case. Is this a renaming of Great Britain, a typo or more of a marketing slogan like “Cool Britannia”? On a more substantial point, I am glad that the EU recognises that Libya is the place in which refugees and migrants should be concentrated so they can be properly assessed and helped as necessary. The crucial thing in my plan, which I produced in 2015 and have subsequently mentioned, is that there should be a military presence of NATO to protect these people and make sure that they are not ill-treated in Libya. I hope that the military presence would be United Nations sanctioned, with NATO in blue helmets, through a Security Council resolution because, without that, the ideas that the EU is floating about Libya could end in disaster.
I assure my noble friend that the UK is working with the international community to support the Government of National Accord’s efforts to deliver security and stability for the Libyan people and to tackle the flow of illegal migrants through Libya. We have allocated more than £10.5 million this year for assistance to Libya and technical support to its Government.
My Lords, I am glad that the Statement and the noble Baroness herself stressed the need for a positive partnership with the European Union. Is the noble Baroness not concerned then that the President of the United States is not well disposed towards the European Union? Indeed, he wants it to fall apart—likewise his nominee for ambassador to the European Union. Does that not give the noble Baroness cause for concern?
One of the things discussed over the lunch was exactly how we can ensure that relationships between the United States and the European Union remain as strong as ever. We are very keen to make sure that that is well understood and that the EU along with us plays an important international role as we always have done.
My Lords, on the sapphire jubilee of the Queen, can I say how pleased I am that we are in the process having a realm for her and her successors to rule over? My second point is in relation to the sort of hate campaign going on against the United States simply and solely because it has, for four years, elected a different sort of President—if I can put it that way. Did the Prime Minister remind Europe that it is protected against people who wish it ill by the enormous economic and military power of the United States through NATO?
As I said in the Statement, the Prime Minister discussed with our European partners the need to engage patiently and constructively with America as a friend and ally—an ally that has helped guarantee the longest period of peace Europe has known. Certainly we are and remain close partners on trade and security of defence. Also, as friends, where we have differences we need to be honest about them.
Can I follow up the question from the noble Baroness, Lady Royall, and repeat a question that I have put to the Government many times since 1999? Does it matter if the European Union falls apart and the democratic nations of Europe go back to their own currencies, freely trading together and supporting NATO together and so on? What is the point of the European Union now? Why do we need it at all? Should we not be very grateful if it falls apart?
We are clear that we want to see a strong Europe and we want to have a strong partnership and relationship with Europe, but we will do it as a global and independent Britain.
Contrary to the implications of the last question, is it not the case that the most likely immediate result of the geopolitical circumstances of the time, with the attitude of President Trump and the Brexit proposition, is that France and Germany will have much closer defence co-operation? The very thing that Britain has always been wary about will probably result in terms of very close defence co-operation within the European Union.
As I have said repeatedly during this discussion, we want a strong Europe. We want a strong relationship and a new partnership with Europe. How Europe takes itself forward once we have left is for Europe to determine, but while we are still involved, we will play our strong part. I am much more optimistic, by the sound of it, than most noble Lords in this House that we will achieve a good deal for both us and our European partners.
Digital Economy Bill
Committee (3rd Day) (Continued)
81: Clause 30, page 30, line 25, leave out “had regard to” and insert “complied with”
My Lords, I have no doubt that we will constantly return to codes of practice, especially about the need for them to be revised and, I hope, improved. But the purpose of these amendments, particularly Amendment 81, is to ensure that when they are finally agreed they have strength and a statutory basis to ensure that they are properly applied. It is important that the principles and safeguards that we have debated so far are included and statutory. I am concerned that having “regard to” provides too many loopholes that will undermine the very public confidence that we seek in passing the Bill. I hope that the Minister will be able to reassure all sides of the House, once again, about how we can consult broadly on these codes and ensure that they are properly referenced in legislation and properly complied with.
In Amendment 107B, we know that what is important is that corrective action can take place if there is a breach of the code. We know that measures are also in the Bill, including criminal sanctions, where data protection is breached. But what about those areas and cases where public authorities exceed those powers for supposedly public good? Will the Minister tell us what adequate measures would be in place? The Minister in the other place said that the wording “had regard to” already follows common practice in legislation, as illustrated in Section 25 of the Immigration Act 2016 and Section 77 of the Children and Families Act 2014. He argued that as the power covers a range of public authorities and devolved territories, the Government want flexibility about how the powers can be operated so that we can learn what works and adapt the code as necessary. This comes to the crux of the matter once again and why so many noble Lords have concerns about these provisions. It is this open-ended flexibility and uncertainty about where this is going to lead to that raise concerns. We are told that to put these matters into the Bill would hamper the ability to adapt for future purposes. If bodies fail to adhere to the code, the Minister will make regulations that remove their ability to share information under that power.
Part 11 of the code states:
“Government departments will expect public authorities wishing to participate in a data sharing arrangement to agree to adhere to the code before data is shared. Failure to have regard to the code may result in your public authority or organisation being removed from the relevant regulations and losing the ability to disclose, receive and use information under the powers”.
Is that really sufficient? Is that enough? What about the cases that we have heard? As the Minister said in the previous debate, departments are not infallible. I do not think that this is sufficient. We know that the Information Commissioner wants changes; we know that they want these codes not only to be improved but to have proper force. I beg to move.
My Lords, I, too, shall speak to this group of amendments, having put my name to some of them. The noble Lord, Lord Collins, has already raised the issue about the permissive approach in the Bill, which we have rather rejected, and the question of inserting “complied with” rather than “had regard to”. Many of the amendments deal with that issue across the various agencies involved. When you consider that this is operated in relation to various criteria to do with improving people’s physical health, their emotional well-being, their contribution to society and their social and emotional well-being, the breadth of those areas is really rather daunting. You could justify almost anything under those four areas, and I do not really believe that the code of practice could be remotely enforceable if those were the criteria that were used.
Worse still, they could be used in a rather punitive way. For example, it could be argued that it is improving people’s well-being by making them work; and if they are disabled, pursuing people who have disabilities or difficulty in getting work could be used to penalise vulnerable groups. It would affect people who are on benefits or are pensioners—all sorts of vulnerable people. There needs to be somewhat more rigour in the Bill than criteria such as those that we see there now.
Moreover, these amendments deal with a minimum consultation period, which we support. Finally, the code of practice should be laid before Parliament, which, again, would be another safeguard. We must have much more transparency and greater rigour of application, enforceability and consistency across all the agencies and with other rules of disclosure. I would like to hear what the Minister has to say about these concerns. We believe that these matters must be answered and wish to understand the Government’s approach in order to decide whether we need to take this forward at a later stage.
My Lords, I, too, support the various amendments in this group. “Having regard to” a matter always seems to leave some wriggle room. If there should be exceptions to compliance—because I think we are talking about compliance here, not about consistency—then those should be spelled out. I accept that having codes of practice outside primary legislation allows for flexibility, which might be useful, for a response to experience of the operation of the code and, perhaps, for changing circumstances. However, there is so much reliance on codes of practice here that an inclusive process for constructing and finalising them is very important, as well as transparency in operation.
The noble and learned Lord will probably have a better recollection than I have of the discussion during the passage of the Investigatory Powers Bill about providing transparency by way of ensuring that people who were affected by the transmission of information knew about it. This was rejected for security reasons, but that would not be the case here. The overall objective has to be transparency and inclusiveness.
My Lords, Amendment 81 and the other amendments in this group are intended, of course—and I understand this—to strengthen enforcement of the codes of practice in relation to the public service delivery, debt and fraud, and research powers by requiring authorities who use the powers to “comply with” rather than “have regard to” these codes. The noble Lord, Lord Collins, has sight of a loophole, and the noble Baroness, Lady Hamwee, has encountered wriggle room, but I would take issue with those descriptions.
There is common ground here. We, too, believe that the codes are an important part of the data-sharing powers. However, the Government believe that “have regard to” is the right level of obligation for a code of practice. This is a legal obligation. Such persons when disclosing or using information will be expected as a matter of law to take the codes seriously and follow their requirements in all cases unless there are cogent reasons why they should not do so. It is, of course, common practice for legislation to set out the critical limitations on a power while codes of practice—which are more adaptable, as the noble Baroness, Lady Hamwee, acknowledged—are advisory tools that supplement with regard to best practice, principles and guidance.
The noble Lord, Lord Collins, alluded to a situation in which an authority exceeds its powers for the public good. In such a situation—without going into the detail of it—the authority would be exceeding its powers and it would have to answer for that, whatever the public good might justify in other circumstances.
Key conditions for the disclosure and use of information are set out in the Bill, including what can be shared, by whom and for what purpose. We have followed a common approach taken by government and others, including the Information Commissioner, to provide more detail on how data are to be shared in a code of practice. That does not mean that the code is to be treated lightly. Legal consequences may follow if the code is disregarded, as the Delegated Powers and Regulatory Reform Committee pointed out in its report on the Bill. The relevant Minister can make regulations to remove a body’s ability to share information under the power if it fails to adhere to the code. The noble Lord, Lord Collins, raised the question as to whether that is considered sufficient in the circumstances. We do consider that that is a sufficient safeguard in the circumstances. I also remind noble Lords—in particular, the noble Baroness, Lady Janke—that the first requirement of the Data Protection Act is that processing of data should be fair and reasonable. That underpins in existing legislation the whole approach that should be taken to this Bill.
The noble Baroness, Lady Hamwee, sought to draw a distinction between the provisions here and those in the Investigatory Powers Act about knowledge of data transfers. Of course, although we are not necessarily dealing here with national security, we are dealing with issues such as fraud, where it would be wholly inappropriate to give people advance notice of data sharing, particularly if one were going to address issues of criminal conduct.
Amendment 107B would require breaches of the code of practice on the public service delivery power to be reported to the Investigatory Powers Commissioner. It also places a duty on the Investigatory Powers Commissioner to investigate serious breaches and, where necessary, to inform the relevant individual of the breach. In doing so, the commissioner would have to ask the person in breach to make submissions before making a decision. With respect, the amendment would impose a considerable additional function on the Investigatory Powers Commissioner, where he or she would be bound to deal with breaches of a code of practice on information sharing which in no way relates to the commissioner’s remit of investigatory powers.
Indeed, placing such duties on the Information Commissioner would effectively be broadening the Information Commissioner’s remit without appropriate consultation. It would, as with Amendment 81B, cut right across the functions of the Information Commissioner, as distinct from the Investigatory Powers Commissioner; the Information Commissioner being responsible for upholding the Data Protection Act 1998, and also the safeguards and procedures for dealing with breaches of the code, which are already set out in various provisions. Such an amendment would blur the lines between the responsibilities of the Information Commissioner and the Investigatory Powers Commissioner and potentially lead to confusion and unnecessary duplication. If, in making those observations, I referred to the Investigatory Powers Commissioner when I meant the Information Commissioner and referred to the Information Commissioner when I meant the Investigatory Powers Commissioner, that simply underlines how easy it is to cause confusion in this area.
Amendments 108, 115, 134 and 151 call for the codes to be subject to approval by Parliament. A similar requirement was also raised by the Delegated Powers Committee in its recent report. We are carefully considering that proposal and I assure noble Lords that we will be responding to it shortly. Amendments 109 and 135 would introduce a requirement for the Minister to consult publicly on the code for a minimum of 12 weeks before issuing or reissuing it. Amendments 110, 152 and 190 would require that the Minister demonstrate that responses to the public consultation,
“have been given conscientious consideration”.
The policy in respect of these powers, and much of the content of the codes of practice, have been developed over two years of open policy development with a range of public authority and civil society organisations. The code sets out procedures and best practice drawn from guidance produced by the ICO and Her Majesty’s Government. We amended Clauses 36, 45, 53 and 61 in the other place to ensure our code will be consistent with the Information Commissioner’s data-sharing code of practice. The clauses contain a requirement that the Minister consults the devolved Administrations, the Information Commissioner and any other person the Minister considers appropriate prior to the issue or reissue of the code. I assure noble Lords that these other persons will include civil society groups and experts from the data and technology areas. It is, indeed, our intention to run a public consultation before laying the code before Parliament. I need hardly add that all consultations are taken seriously by the Government and all responses considered with appropriate conscientiousness.
I understand the interest in the codes and the desire to make sure they are effective. The codes will provide a strong safeguard for the use of the power, backed up by real consequences if they are not adhered to. With that, and while we consider the recommendations of the Delegated Powers Committee further—as I have indicated, we intend to do that in the very near future—I invite the noble Lord to withdraw his amendment.
The noble and learned Lord warned us against giving advance notice to potential fraudsters, but I think we are talking in these amendments about notice which may be in retrospect. I am looking at the noble Lord who has tabled the amendments. There are different issues, I think, about giving notice in advance and telling people that you have transferred information. Maybe we need to come back to the distinction between the two at the next stage. On the requirement to have regard but not necessarily to comply, does that not point up the real weakness of a code that is not approved by Parliament? These two bits of fragility seem to me to go hand in hand and undermine the security, as it were, of the regime.
I am content that we return to the noble Baroness’s first point if she feels that there is a point of distinction to be made. On her second point, I do not accept that there is fragility in this context. We are well aware, by virtue of past practice, that this formulation is appropriate to the application of codes of practice. Indeed, the noble Baroness herself observed that when applying one’s mind to a code of practice, a degree of flexibility is necessary. One cannot freeze them. That is why we consider that the wording here is appropriate.
I thank the Minister for his response. Obviously, the codes of practice are key to giving a sense of security and to building public confidence. They are critical, which is why noble Lords want to see exactly how they will end up. I am very happy with the reassurance that the Minister gave regarding parliamentary involvement and consideration of the report of your Lordships’ committee. That is very welcome and we will return, obviously, to some of the issues, particularly on medical information and other information set out in other groups. We will return to the subject of the Investigatory Powers Commissioner in the next group and I will explain in that discussion why we see, perhaps, a distinct role, arising from the debate this House had on the Investigatory Powers Act. In the meantime, I beg leave to withdraw the amendment.
Amendment 81 withdrawn.
81ZA: Clause 30, page 30, line 28, at end insert—
“( ) The effective maintenance of the electoral register must be specified as an objective in regulations under subsection (6).”
Are we dealing with Amendment 81ZA? I would hate to give the wrong speech on the wrong group, although I suspect that noble Lords would notice. I have been in other forums where people have not noticed, but that is another matter.
Amendment 81ZA focuses on the extension of sharing objectives to include the electoral register. A number of amendments in this group address concerns that have been raised about living in cold homes or school meals provision: basically, how we make this sharing of data more effective. I have no doubt that the Minister will say in response that the Bill will allow for this, but we want to raise on the Floor of the House the importance of these extensions of sharing objectives to the overall, broad objectives set out in Part 5.
Focusing on the electoral register, we know that the Electoral Commission has said that up to 1.9 million people could lose their right to vote as we transition to the individual registration of electors. Of course, until 2009 one person in each household completed the registration for every resident eligible to vote. It was a Labour Administration who accepted the principle, and there may be very good reasons, but the way the changes are introduced could be a disaster for our electoral system. That is why it is fundamentally important that we see data sharing as a positive way to address this potential effect on our democratic system. My noble friend Lord Stevenson has tabled an amendment to the higher education Bill that seeks to enhance the responsibility of higher education institutions to remind students of their right to register to vote—and particularly to decide where to vote. In this amendment we are trying to ensure that institutions have proper powers to share data to that end.
It must be understood that this transition to individual registration has put a huge burden on cash-strapped local councils, who need to contact 46 million people instead of 20 million. Some people have been unable to register, many of them because they simply do not have the required access that they would previously have had. This amendment focuses on people who are vulnerable, who need help, or who have not previously taken up their rights, perhaps because they do not have the necessary access or are not fully aware. That comes back to the issues—many other noble Lords will pick up the point—of fuel poverty and access to free school meals. The right to free school meals is important not only for the individual child—for the benefits the child will get—but for the funding of the educational institutions. I hope, therefore, that the Minister will accept these amendments, which are about ensuring that we can do these things and that these issues are addressed, even if he does not think that they should necessarily be in the Bill.
My Lords, I shall speak to Amendment 82. This Bill is an opportunity possibly to enhance the lives of the most disadvantaged and vulnerable people in our society. The words of our Prime Minister always come to mind:
“a country that works for everyone”.
This amendment will help the country work for everyone. Currently, the parent of a child wishing to have a free school meal must apply for it. Not only does that provide a free school meal, which is hugely important for children because hungry children are not good learners, but it ensures that the school gets a pupil premium—a substantial sum of money—to help those disadvantaged pupils.
This simple amendment would ensure that local authorities automatically enrol those entitled to receive free school meals. Local authorities currently administer a number of benefits, such as council tax and housing benefit, so they are aware of families that would be eligible to claim free meals and would automatically contact the school. This would ensure that parents who, for a host of reasons, fail to claim would be able to do so.
It is estimated that a family with a child receiving free school meals can save up to £400 a year. Noble Lords may imagine that if the parents have more than one child the saving is quite substantial. As well as the family saving money and the child getting a free school meal it ensures that the school gets a substantial amount of money—the pupil premium—to help disadvantaged pupils.
The Minister will probably reply—as did the Minister from the other place—that the department’s own electronic eligibility checking system means that the clause is not really needed. That, however, is only a system which enables a school to check whether the parent is on the free meals register: it has speeded up the process but does not do the job that this amendment hopes to do.
I make a further point about this, at a time when we are all sensitive about the amount of private data that circulates: there is perhaps a fear that leads people to question why schools should have private data on pupils entitled to free meals. For that reason the amendment clearly states that parents will be notified before this information is made available and that there will be opt-out arrangements. I hope, therefore, that the Minister will be sympathetic to this very important amendment.
My Lords, it is a pleasure to follow my noble friend. I support his Amendment 82 and shall speak to Amendment 92, which is in a similar vein but relates to the warm home discount. I am grateful to the right reverend Prelate the Bishop of St Albans and to the noble Baroness, Lady Massey, who have other duties in the House and would otherwise be here.
It is my pleasure to speak to Amendment 92, which seeks to test the possibilities that Clauses 30 to 32 open up. For years I have been banging away at the Department for Work and Pensions to make proper and better beneficial use, in terms of client well-being, of the vast amount of data that it has on families. That, together with the data held by HMRC, and particularly the data generated when universal credit comes in, will give the Government as a whole immensely enhanced abilities to promote well-being, particularly in our low-income households. I warmly welcome Clauses 30 to 32.
I am listening carefully and correctly to some of the interrogation that is being properly directed at the Government, because we have to get this right; it is very important that the protections are there. Subject to those protections, I am an enthusiast for making use of these provisions. I am slightly surprised that there have not been more attempts—like mine and that of my noble friend—to prise open new opportunities as the Bill goes through. This amendment tries to test the willingness, enthusiasm and ingenuity of Ministers in seeing how they can expand public services to our citizens under Clauses 30 to 32.
Amendment 92 simply seeks to improve the use of data-sharing powers to extend the reach of the warm home discount. The provenance of this amendment is work that I have been doing over months and years for the Children’s Society, and I acknowledge and pay tribute to the work it does with families, particularly with children in fuel-poor households. The Children’s Society has been making the argument to me about the importance and urgency of getting the issue of fuel poverty dealt with more adequately. We need only look at the announcement from npower last week, and indeed some of the wider economic indicators that are showing that this group of fuel-poor households is likely to find things getting a lot worse before they get any better. We need to pay attention to that.
I am told by the Children’s Society that, according to the Government’s own figures, families with children are now the biggest group affected by fuel poverty: 45% of households that can claim the warm home discount are now families with children under 18. The Children’s Society has some valuable survey evidence of a project that it carried out in Bradford and in other places, which indicates clearly the distress caused by fuel poverty. For instance, there is the fact that parents in these households are frightened to turn up the heating in cold winter months because they fear the level of the increased bills it would occasion. Some of those same parents believe that their children’s health is potentially affected by not doing so, so it is a real concern for the parents involved.
The warm home discount, as colleagues surely know, is not a mainstream benefit but is of significant assistance to those who need it. The scheme is currently carried out for two groups. There is a core group, which targets low-income households beyond pensionable age. These are covered under the provision in the Pensions Act 2008 that set up an agreement between the DWP, HMRC and energy companies. It enables people who are beyond retirement age to qualify entirely automatically for the discount. It is taken from their bills and they do not need to apply for it at all. On the other hand the broader group, which is more discretionary and covers vulnerable children in low-income households, does not have that advantage. The Government introduced criteria in 2015 to help with this, which was very welcome, but access to their £140 discount is still patchy and discretionary. It is not automatic. The Children’s Society estimates that only one-third of children in fuel-poor households receive warm home discount at the moment—a matter of concern to it, as I am sure it should be to colleagues here in the Committee.
We need to add fuel-poor families with children aged under 18 to the core group for automatic eligibility for the warm home discount. That can now be achieved because we can get access to the data and share them with the energy companies. Clauses 30 to 32 could unlock the warm home discount for these families, so this amendment asks the Government to ask the DWP to endorse this approach and take the opportunity to make use of these clauses. In particular, will the Government commit to a consultation on how this could be done in the next six months, moving low-income families in fuel poverty to the core group of the existing warm home discount scheme?
My Lords, like those of the noble Lord, Lord Kirkwood, my three relatively small amendments in this group relate to fuel poverty. I was not at all surprised when my noble friend Lord Collins of Highbury was a bit confused at the beginning of this rather mixed-up group. It covers not only my subjects but voter registration and free school meals; most of the government amendments seem to relate to water and sewerage. I was tempted to say that it covers electoral rolls, bread rolls and toilet rolls. However, my amendments deal with something entirely different and their intention is very much the same as those of the noble Lord, Lord Kirkwood. I will not repeat all that he said.
My aim here is to make the system of data sharing more effective. I recognise all the concerns expressed around this Committee about the dangers of data sharing by public bodies and I understand them, because in different circumstances I have been deeply suspicious of the gas and electricity companies, as the noble Baroness, Lady Byford, clearly was a couple of groups ago. To make identification of the fuel poor more effective, we need more effective and comprehensive data sharing, along with the ability of different authorities and companies to share them, but this must be subject to all the safeguards. One safeguard is clearly stated in the Bill: that the information that can be used and shared in this way relates to the health of those affected by fuel poverty because they live in cold, draughty and damp homes. I do not need to spell out the effects of fuel poverty on those people’s health. It is quite important that in addition to the provisions in Clause 30(8) for helping the delivery of services and benefits, the clause should also refer to improving the health of those affected by it. My first amendment would do that.
My second and third amendments simply extend those gas and electricity operators which need to be engaged in it and will be subject to the same safeguards. It is increasingly the case that consumers and householders, including the fuel poor, have a closer affinity with the distribution networks than with their sensible supplier, which sends them the bill. To improve their situation, they will have to deal with the electricity distributor and, shortly, with the gas network distributor company. These amendments to Clause 31 deal with putting those distributors in the same category as gas and electricity suppliers. These are tidying-up amendments but they will make data sharing in this important area of fuel poverty more effective. The noble Lord, Lord Kirkwood, spelled out why that is necessary and, in particular, why those not automatically assigned to the warm home discount need to be identified and automatically put on the list of those who receive it. If we achieve that via the Bill, it will be a very important improvement and a step towards eliminating fuel poverty in our society.
My Lords, I want to ask a question about government Amendments 83A and 83B, which are about water and sewerage. Will these provisions apply only where there is a water meter? I am struggling to understand how they can work if the customer does not have metered water, and whether the information would be relevant—and how it could be used—if that is not the case. I am quite prepared to be told that I have not understood this properly but if I am right, should the provision not spell out that it is confined to that situation? That would make it clearer.
My Lords, I declare my interest as a partner in the global insurance law firm DAC Beachcroft and as chair of the British Insurance Brokers’ Association, along with other interests set out in the register.
In speaking to Amendment 196A, I seek to address a small but important point on the operation of the Employers’ Liability Tracing Office, or ELTO. Colleagues may recall that I also raised this when we debated the Enterprise Bill in 2015. Although it has been grouped with amendments to Clause 30—I am happy to accept the grouping—it seeks to insert a new clause after Clause 65 in Chapter 6 of the Bill, which deals with Her Majesty’s Revenue and Customs.
In 2010, the Department for Work and Pensions identified the need for a tracing office, and ELTO was established in the same year. Sadly, former employees continue to contract industrial diseases, including cancer, due to workplace exposure many years earlier. All too often, the employer is no longer in existence by the time the disease is diagnosed. This was considered by our colleagues at the Department for Work and Pensions as a major obstacle to the former employees’ obtaining compensation.
ELTO was established, and the insurers are now required to provide to ELTO details of all employers’ liability policies that have been issued since April 2011. According to the information I have received, ELTO is working well. In the 11 months to the end of November last year, there were more than 178,000 successful searches of the Employers’ Liability Database, but it could be working better.
The piece of the jigsaw that is often missing is the employer’s PAYE reference number. This number is now used to identify an individual employer in the Pay as You Earn system. Each employer is given a unique reference number. If this unique reference number could be applied to the Employers’ Liability Database, it would make searches more accurate, as it would avoid problems of company names’ changing over time. Generally speaking, it would enable the correct employer to be traced.
One major obstacle is that by law ELTO is unable to gain this information under the Commissioners for Revenue and Customs Act 2005, which prevents HMRC from sharing information except in specified circumstances. Alternatives to primary legislation have already been explored with HMRC. Although we often think of employers as large companies, many are sole traders or family partnerships. For them, the reference number could well amount to personal data, which are rightly protected from general disclosure.
The measure, which I now understand is supported by ELTO and HMRC, is proportionate. HMRC has a ready-made database of these unique reference numbers to which ELTO could be given limited access. All ELTO needs is the reference number itself and the name and address of the employer as a cross check. The amendment would permit ELTO and HMRC to set up, at no cost to HMRC, a facility to share this limited information. It will help make the ELTO database fit for the future.
Many noble Lords will know that I have the honour to be an officer of a number of all-party groups, including not only the Occupational Safety and Health All-Party Group but also the All-Party Group on Insurance and Financial Services, so I should also declare those interests because this amendment is strongly supported by my colleagues on those groups.
This amendment would provide great benefit to employees, employers and insurers alike. I hope my noble friend the Minister will feel able to accept it.
My Lords, I am grateful to all noble Lords who have spoken. It is refreshing that, after the debate that we have had on all the concerns and worries that noble Lords have on data sharing, we now hear proposals on how data sharing can benefit various groups. This is our ambition. This is why we set the Bill up as we did and also why the devolved Administrations are so supportive. The noble Lords, Lord Collins, Lord Kirkwood, Lord Storey, Lord Whitty and my noble friend Lord Hunt all made valuable suggestions. I will come to some of the reasons that we agree or disagree with them, but fundamentally the principle is exactly why we set the system up.
Amendment 81ZA, in the name of the noble Lord, Lord Collins, seeks to require the effective maintenance of the electoral register to be specified as an objective in regulations under the public service delivery power. Electoral registration officers already have extensive powers to seek access to information in public records, providing it is for the purpose of ensuring that electoral registers are as complete and accurate as possible. Under current provisions, they would not be able to seek access to other public records for the purposes of identity verification if an applicant’s details cannot be matched against DWP records or local data sources.
Before considering, however, whether to legislate to enable electoral registration officers to use a wider range of public data sources for identity verification, it is essential that a rigorous examination of the usefulness of the data for these purposes be undertaken.
The public service delivery power allows for objectives to be added via regulations so long as they meet the conditions set out in subsections (8) and (9) of Clause 30. These conditions ensure that any objective for the purposes of which information may be disclosed essentially improves the delivery of services or support provided to a person that improves their well-being. The objective as set out in the amendment is focused on meeting the administrative needs of electoral registration officers rather than necessarily delivering positive outcomes for citizens.
I thank the noble Lord, Lord Whitty, for his interest in ensuring that information can be shared to facilitate improvements in health conditions for those living in cold homes. We believe, however, that his Amendment 81A is unnecessary because this objective is already within the scope of Clause 31. The warm home discount is a support scheme for reducing fuel poverty made under Part 2 of the Energy Act 2010, and these are the schemes specifically referred to in subsection (3)(a) of Clause 31.
Amendments 82A and 82B ensure that, in addition to the gas and electricity suppliers, information may be shared with licensed electricity distributors and gas network distributors for the purposes of requirements which may be made to them by Ofgem in future. Clause 31(4) already provides the power by regulation to add electricity or gas network distributors and fuel poverty support requirements set by Ofgem to the list of schemes covered by this clause if a requirement for the disclosure of personal information to support delivery of such schemes is identified.
Amendment 82, in the name of the noble Lord, Lord Storey, concerns free school meals. Take-up of free school meals is already strong, estimated at about 89%. There are numerous reasons why those entitled to free school meals may not wish to make a claim, such as a preference for their children to take packed lunches. The proposed new clause would not provide a complete solution, as it would not necessarily identify all children eligible for free school meals. For instance, not all eligible parents claim housing benefit. It is ultimately a choice for parents and guardians whether they wish to make a claim. Having said that—naturally I will repeat what the Minister said in the other place; we have joined-up government within the department at least—we want to make it as simple as possible for all parents of entitled children to register for free school meals. That is why the Department for Education provides the electronic eligibility checking system, which allows local authorities to quickly check data held by DWP, the Home Office, and HM Revenue and Customs in order to establish eligibility. The trigger remains, however, that the parents or guardian have to make a claim.
Amendment 92, tabled by the noble Lord, Lord Kirkwood, ensures that information can be shared to provide a warm home discount to certain universal credit or tax-credit claimants, namely low-income families. Although I thank him for his interest in ensuring that information may be shared to enable automatic support for universal credit or tax credit claimants who have children, we believe the amendment is unnecessary, as this is already authorised by Clause 31(1), (2), and (3). That clause enables persons specified in regulations to disclose information to gas and electricity suppliers for the purpose of providing rebates under the warm home discount scheme. The Government recognise that low-income families can face some of the highest costs of keeping warm. In reply to his specific question, I reassure the noble Lord that later this year there will be a consultation on future changes to the warm home discount scheme. The powers in the Bill allow the support to be extended to some working-age vulnerable households without the need for them to step forward and apply. This could be done by using DWP and HMRC data on a wider range of benefits recipients to inform energy suppliers of their eligibility for support.
I now turn to Amendment 196A, which was tabled by my noble friend Lord Hunt of Wirral. I and all noble Lords recognise the importance of helping employees suffering from industrial injuries or diseases to find their employers’ liability insurers where their employer may no longer exist, for example, and I hope I can offer reassurance to my noble friend. Since 2015, when we debated this as part of the then Enterprise Bill, HMRC and the Employer Liability Tracing Office—ELTO—have been collaborating to devise a solution that helps to streamline claims to insurers from employees suffering from industrial injuries. HMRC tells me that a proof of concept has already been devised to investigate the feasibility of this project. It envisages ELTO providing a small sample of employer details to HMRC to determine whether there is a significant matching rate between its database and HMRC’s records. This would help build the case for an information gateway to help populate its database. This amendment anticipates the results of this exercise with the risk of developing a solution that is not fit for purpose in the long run. Any future clause will also need to include appropriate safeguards to protect taxpayers’ confidentiality, in line with the Commissioners for Revenue and Customs Act 2005, which my noble friend mentioned. HMRC has assured me that it will continue working with ELTO to develop a suitable gateway to address the legal, policy and practical perspectives currently being scoped.
I now turn to the government amendments in this group. The noble Baroness, Lady Hamwee, asked whether it is necessary to have a water meter. I am informed that you do not have to have one. I think the best thing would be for me to explain in writing to her how we think this will work without a water meter, and I will put a copy of that letter in the Library of the House for all noble Lords to read. The Government are committed to using the public service delivery powers where a need is identified that improves the lives of citizens.
During the passage of the Bill, we have had representations that more could be done to help citizens in water poverty. The powers in these new water and sewerage clauses have a clear objective: to help improve the take-up of various schemes offered by the water sector that provide assistance to householders in low-income and other vulnerable circumstances. Research by the Consumer Council for Water shows that take-up of such social tariffs is improving, but remains low. This is in spite of considerable effort by the sector to improve awareness of the support available—for example, through its presence in jobcentres, food banks and advice centres as well as through advertising in socially deprived areas. The present system is heavily reliant on eligible households putting themselves forward for help. As a result, large numbers of people are missing out on support, which could include a cap on their bill or a discount on their bill of between 15% and 90%.
These new measures will enable water companies to reach out directly to customers who are likely to be eligible for assistance schemes. This will make it easier for customers in low-income and vulnerable circumstances to access the support to which they are entitled and will improve the accuracy, efficiency and effectiveness of the targeting and delivery of social tariffs. Support for the introduction of such measures has been wide ranging, from the consumer body CCWater, Ofwat—the economic regulator for the sector—and the sector itself. These proposed new clauses will, of course, be subject to the safeguards already in the chapter which provide a strong and safe framework for protecting any information which is disclosed. The clause largely mirrors the provisions in Clauses 31 and 32 for gas and electricity companies, and there are a number of consequential amendments.
I hope the noble Lord will feel able to withdraw his amendment.
I thank the Minister for his response. The problem is that these issues are not simply about entitlement but about a system in which people have to choose. The point is how you make that easier. With individual voter registration, which is a new system, there is a possibility that people will be removed from the electoral roll and therefore denied the opportunity to vote. We talk about a positive outcome. It might be one for one particular party. The boundary reviews will be based on registers that will be removing people and therefore on numbers of electors that are not necessarily the real numbers. I find it a bit disappointing that the Minister sees it as simply an administrative step.
This comes back to the fundamental point that everyone who has spoken, whether about school meals or the warm home discount, sees that this is an opportunity to improve governance and outcomes for people, obviously with the required safeguards. I think all of us in this Chamber will want to return to these issues because they are vital for the well-being of our people. In the light of the Minister’s comments, I beg leave to withdraw the amendment.
Amendment 81ZA withdrawn.
Amendment 81A not moved.
81B: Clause 30, page 30, line 42, at end insert—
“( ) The Investigatory Powers Commissioner has a duty to ensure that the data protection rights of citizens are considered and protected for the purpose of the powers provided by this section.”
The Minister gave me some preliminary notice of the Government’s attitude to this amendment and alluded to the potential confusion of different roles and different names. No doubt I might even make the mistake of using the term “Information Commissioner” rather than “Investigatory Powers Commissioner”.
However, there is an important point here on which we want to probe the Government, and that is about the changing world and how we respond to it to make sure that the interests of the individual are properly thought of and protected. The point is about restoring public confidence. We have a legal framework that is structured around the Data Protection Act and a regulatory framework that allows breaches to be investigated and matters to be determined where there has been a breach. It is a system that protects the individual after the event. What we are trying to do here is what the Investigatory Powers Act, which became law at the end of last year, sought to do—that is, it does everything possible to ensure that intelligence agencies and law enforcement use only such powers as Parliament approved after a careful and well-informed debate. We cannot revert to a world in which the Government understand and apply the law in ways that were not foreseeable to the rest of us, still less to a world in which our freedoms depend on the potentially harmful activities of whistleblowers.
This amendment seeks to ensure that, in this fast-changing world, in the plans for the future use of powers identified in the Bill, the rights of the individual are not only safeguarded but are put at the head of the agenda rather than considered as an afterthought. That is why we have used the framework of the Investigatory Powers Act to raise this issue. With regard to future changes or extension of powers, who is thinking of the rights of the individual? It is important that the Government, if they are unable to deal with this consideration in today’s group, return to this subject in future provisions.
This group is also about general safeguards. We have a number of amendments in this group about safeguards and how we ensure that they are maintained. How do we make sure that the regulations that we have seen in draft are proportionate? What about appropriate consultation? How do we guarantee sufficient time for a consultation? We are also ensuring that. I am sure that the Minister will return to the fact that the principles are contained in the original Data Protection Act. However, our concern is about the information being relevant to the individual.
We also have issues with the clause introducing a criminal offence of unlawful disclosure. Why does it not apply to HMRC? This is about being consistent in ensuring that there are proper safeguards. This is another of the issues that has come up.
Again, I note that the noble and learned Lord, Lord Keen, has referred to the Data Protection Act. The Bill sets out the need to comply with the DPA but overrides the common law duty of confidentiality. The BMA has asked what the justification is for that. We are keen to hear from the Minister. We know from the briefing circulated to noble Lords by the BMA that its view is that the provisions of Clause 33(7) could be used to override the existing common law safeguards for health data. The BMA is concerned, as is everyone, about the effect on the important relationship between doctor and patient. We need to ensure that that remains confidential.
We have seen the problems. We thought that we had appropriate data sharing with all the safeguards in place. However, in relation to the NHS using bulk data for research, last June it emerged that nearly a million people had opted out of the database because of their concerns. We know that reviews have examined this. However, this is why we have to understand better the Government’s intention in terms of consistency and ensuring that the appropriate safeguards continue. I am sure that other noble Lords will pick up some of the points that I have not covered. I beg leave to move.
My Lords, our amendments in this group add safeguards. The noble Lord, Lord Collins, referred to some of these: that sharing of information be minimal; that the authorised conduct be proportionate to the object of the exercise; that a privacy impact assessment be conducted; and that proposed measures be subject to public consultation.
In addition, we support the amendments advocated by the BMA. Amendment 89 would remove the subsection through which sharers of information are not bound by the principle of confidentiality. Amendment 93 is a further safeguard preventing an authorised sharer of information from disclosing identifiable health information. I look forward to the Minister’s response.
My Lords, in this group I tabled Amendments 100 and 196. Within this group we are debating data sharing and the putting in place of safeguards that make us confident in the next move to make life better for the majority of people. I have one or two direct questions, particularly on the level of data that will be supplied from one authority to another. For example, does the Bill intend that information be supplied on the number of households in a given postal area where child benefit is being claimed and/or where all adults are unemployed? Would it be up to the users of the data to extract a summary picture from details of, for example, names, addresses, whether benefits are received, whether householders are unemployed or any other data?
At any level of inquiry, I presume data will be transferred such as dates of birth and marital status that, were they to fall into the wrong hands, could be used to perpetrate private fraud. No one today has mentioned private fraud, but it can come about as a result of lack of security and safeguarding. Again, perhaps the Minister will indicate what relevant provisions there are. I am unsure whether I have missed some. At earlier stages of the Bill I mentioned the amount of fraud going on and it is horrifying. If the Bill can in any way tighten up on that, it would be an advantage.
For example, will personal information cover things such as whether an individual has a diagnosis of dementia or whether a family has been a cause of concern to the social work department in their own area? Who makes these judgments? At what stage are these activated? I may not have read the Bill carefully enough to find the missing answers. I pose these fairly simple questions to make sure that our safeguarding of this information is secure.
Amendment 100 is a probing amendment that seeks to complete the explanation of what information HMRC would disclose, providing examples of the circumstances under which it would be disclosed and a complete list of the groups or persons whose information would be handed over. This relates to Clause 30, of which we spoke earlier. Subsections (9) and (10) specify the well-being of persons or households and define well-being in terms of physical or mental health, contributions to society—which we have covered slightly earlier on and which is difficult; I should be glad of clarification on that—and emotional, social and economic well-being. The latter are easier to understand.
Clause 31 refers to people living in fuel poverty. Again, we debated this previously. Fuel poverty has been defined as,
“living on a lower income in a home which cannot be kept warm at a reasonable cost”.
Clause 32 also refers to people living in fuel poverty. I do not understand what is intended, nor what will be involved for those deemed to be affected. Defining well-being in terms of well-being suggests that definitions of those covered by this legislation could depend on the personal and political stance of those making those decisions. What is “lower income”? Within what limits do homes qualify under these clauses and who will rule that they cannot be kept warm at reasonable cost? What will be the limits of powers of such a decision-maker over, for example, someone who prefers to wrap up for three months of the year so they may enjoy their garden for nine; in other words, somebody who is living in a bigger house that costs more to heat? Will an individual be able to opt not to have personal information shared within local authorities and/or with gas and electricity suppliers?
Turning now to my Amendment 196 in this group, I do not pretend to know anything about the structure, organisation or responsibilities of HMRC. Hence, I do not understand whether an “official” is someone equivalent, say, to a board member in a quoted company. I fear, however, that that is unlikely to be the case. In this era of Facebook, Snapchat and the substitution of public opinion for demonstrable fact, I am unhappy—I do not know whether other noble Lords are—that perhaps a more junior member of HMRC could decide that disclosure would be in the public interest. In other words, where does the buck stop?
Disclosure of personal information, even supposedly non-identifying, should be done only on the authority of the head of the organisation. He or she presumably will have the knowledge, experience and breadth of understanding to be sure that it cannot be combined with other data to name individuals. He or she will also, presumably, be less likely to make errors of judgment, and of course a claim of ignorance of any such disclosure would not stand up to scrutiny, as they would obviously be at the most senior level.
My Lords, I will just pick up the noble Baroness’s last point about who is an official. There are examples, in other legislation, of references to “senior officials” and “designated officials”, which might be somewhere between the junior official she has in mind and the Permanent Secretary, but she is right to draw the issue to the Committee’s attention.
On an earlier group, the noble and learned Lord indicated that he was going to speak at greater length—I assume that may be on this group—on the reason for using the term “personal information” rather than “data”. Perhaps I may use my noble friend’s Amendment 213 to ensure that we get to share more of Government’s thinking. I understand the point about corporations, since in the one case, they come within the group covered, and in the other they do not. But I am still puzzled as to why such efforts have had to be made to deal with personal information and then to add in references to the Data Protection Act, rather than starting from the DPA—with any necessary exclusions—which would have taken us straight to the involvement of the Information Commissioner, the data protection principles and so on.
I wondered during the Statement whether to have a go at some alternative drafting for Report, but thought I had better wait for this discussion. But perhaps part of it boils down to a question on Clause 33(8), which says, in wording replicated elsewhere, that,
“nothing in section 30, 31 or 32 authorises … a disclosure which … contravenes the Data Protection Act”.
To look at it from the other end of that telescope, is there any personal information which is the subject of the Bill that would not fall within the DPA and therefore not be protected by that clause?
My Lords, I thought I would intervene to see if it might help the Minister. The code of practice does not make things any clearer. With reference to my noble friend’s very apt point about information versus data, paragraph 4 of the code says:
“The definitions of ‘personal information’ contained in the Bill are intended to ensure that the information shared through these powers is handled carefully”.
That does not sound like a particularly good legal answer to the question. It goes on:
“Though the definition of ‘personal information’ for the purposes of the Bill may differ from the definition of ‘personal data’ in the DPA, all information shared and used under the public service delivery, debt and fraud provisions must be handled in accordance with the framework of rules set out in the DPA”.
Where is that explicitly set out? It would be very helpful if the Minister, in answering, could advert to that as well.
My Lords, Amendment 81B seeks to place a duty on the Investigatory Powers Commissioner to ensure that the data-protection rights of citizens are considered and protected under the public service delivery power. The effect of this amendment would be to impose similar duties on the Investigatory Powers Commissioner as are already carried out by the Information Commissioner. It is for that reason that we do not consider that this amendment is necessary. I understand the points that the noble Lord, Lord Collins, has made in this context. We are all concerned to ensure that these powers are ring-fenced as far as is reasonably practicable and that any breach should be policed to the extent required. However, in our view, the Investigatory Powers Commissioner is not the appropriate party to deal with this matter. The Bill is not about investigatory powers, and accepting this amendment would result in a substantial and, as I sought to indicate earlier, confusing addition to the portfolio of the Investigatory Powers Commissioner.
We are of course concerned that there should be public confidence in the provisions of the Bill and in the whole body of data-sharing powers. I understand the observation of the noble Lord, Lord Collins, that the Investigatory Powers Act does everything possible to ensure security is there, so that only the given powers are exercised and that the rights of the individual are put at the head of any agenda, but that is clearly the intention of this Bill as well. That can be achieved by having regard to the position of the Information Commissioner in the context of the present provisions.
I understand and indeed admire the noble Lord’s suggestion that we should in some sense be seeking to future-proof the Bill. There are limits to our ability to do that, but I will return to that point in the context of the regulations that come into force in May 2018. We have already had regard to that in order to try to ensure that the provisions of the Bill will comply with imminent regulations, such as those I have just referred to.
The noble Lord also raised the question of confidentiality and the concerns that have been expressed by the medical profession in that context. Let us be clear that, as noble Lords will recollect, common-law obligations of confidentiality are rarely if ever absolute. We know that various common-law issues of confidentiality tend to be subject to one qualification or another. Concerns have been expressed over the interaction between the provisions of the Bill and medical confidentiality, primarily in respect of the statutory override within the Bill. The provisions of the Bill are clear that sharing data under the powers in the Bill does not breach any existing duty of confidentiality. That includes the common-law duty of confidentiality to the extent that it applies to patient information.
The use and processing of medical information is governed by common law, but also by the Data Protection Act 1998, by the provisions of the Human Rights Act 1998 and indeed by specific legislation which allows, requires or prohibits certain uses of such data. There is no blanket ban on the use of medical information outside the patient-doctor context, and it is not the case that every instance of sharing such information will constitute a breach of confidentiality. Indeed, the General Medical Council’s 2017 guidance expressly states personal information can be disclosed,
“without breaching duties of confidentiality”,
in particular circumstances, one of which is where the disclosure is,
“approved through a statutory process that sets aside the common law duty of confidentiality”.
So it is acknowledged by the General Medical Council itself that this may occur from time to time, and the provisions of the Bill are structured to reflect this. They override duties of confidentiality only in order to ensure that public authorities have clarity in terms of what they can and cannot share under the powers of the Bill. I hope that goes some way to meeting his concerns about confidentiality in that context.
Amendments 84, 87, 119, 138 and 213, which are also in this group and were referred to by the noble Baroness, Lady Janke, cover a broad range of suggested additional safeguards and restrictions on the use of the powers. They seek to introduce, among other things, an express data minimisation rule, a requirement to conduct and publish a privacy impact assessment and provisions extending the Information Commissioner’s powers in respect of enforcement notices. They also introduce a provision enabling data subjects to request that inaccurate personal data disclosed under the powers be amended. We are firmly of the view that while all of these requirements represent important safeguards on the use of our powers, they are already provided for in different ways under the Bill, the codes of practice or existing legislation, including in particular the Data Protection Act 1998. Indeed, under the DPA only the minimum personal data necessary may be shared to achieve the particular objective, and all personal data that is held must be accurate. I hope that that goes some way to meeting one of the points made by my noble friend Lady Byford about excess data being given to public authorities. That is simply not permitted in the existing legislation, particularly the requirements of the Data Protection Act 1998. Over and above that, the Information Commissioner already has a range of mechanisms to enforce compliance with the DPA. Amendment 213, which would insert a new clause on enforcement notices, would not add to those powers in any material way.
Further, Amendment 213 requires certain information to be gathered in respect of the benefits of data-sharing arrangements. Again, that is not necessary: bodies wishing to exercise the powers in these provisions must consider benefits as part of their privacy impact assessment. We acknowledge the importance of privacy impact assessments and, following discussions with the Information Commissioner’s Office, will look to return to this matter on Report to address concerns about public authorities’ adherence to the Information Commissioner’s specific guidance on privacy impact assessments, as well as privacy notices. I hope noble Lords will accept our willingness to return to that matter in due course.
Amendment 213 would bar the processing of personal information under the powers for particular purposes. With respect and understanding of what lies behind the amendment, our approach is simpler and more complete. There are specific limited purposes for which personal information can be disclosed under Part 5 of the Bill. Other than a few limited exemptions, the disclosure or use of personal information for other purposes is not permitted. Tough new criminal sanctions will apply to all unlawful disclosures.
Amendment 87 seeks to introduce a duty to review in the public service delivery power, akin to the existing duty in the debt and fraud powers. All data-sharing arrangements under the debt and fraud powers have to be piloted and reviewed after three years to ensure that the powers deliver demonstrable benefits. The public service delivery powers are different in kind, being more conventional data-sharing powers, constructed specifically to improve the delivery of services to citizens in cases of acknowledged need, such as assisting those suffering from fuel poverty.
On that point, my noble friend Lady Byford essentially raised the question of definitions—what do we mean by “fuel poverty”, “well-being” and “warm home discount”, as mentioned in Clause 31? All this is dealt with in Part 2 of the Energy Act 2010, which contains the schemes referred to in Clause 31(3)(a). I hope further consideration of those provisions of the Bill may go some way to meeting her concerns about those definitions.
On the question of private fraud, of course we are alert to the idea that where there is data sharing there may be data intrusion, and we are determined to guard against that. That is why we seek to ring-fence these powers in the way that we do in the Bill. We have not claimed that any system we introduce will inevitably be infallible; history tells us that where we ring-fence, people will seek to go under, over or through such a fence. However, we shall try to ensure that all data that are shared in this context are kept as secure as we reasonably and practicably can keep them.
Amendment 88 would change the definition of “personal information”, a point raised by the noble Baroness, Lady Hamwee. The point here is that in the current draft “personal information” includes “a body corporate”. The existing definition is intended to capture all persons, including all corporate bodies, to ensure that taxpayer information, including that of bodies corporate, is protected irrespective of the size of the organisation. Narrowing the definition would limit the protections for HMRC data under these powers, which would be likely to affect significantly HMRC’s willingness to make use of the powers. I am sure the noble Baroness is aware that the disclosure of data by HMRC is subject to additional statutory controls quite distinct from the provisions of the Bill, and these have to be factored in. This is where the term “official” comes into use because the existing statutory legislation uses that term in the context of data and disclosure. Therefore, for the purposes of consistency, that term is used in this context. It is not an attempt to suggest that the janitor, or anyone else, should be responsible for disclosing relevant information—certainly not the commissioners of revenue in isolation.
Amendments 87 and 93 are also in this group. Clause 33(7) provides that a disclosure under the public service delivery power does not breach any obligation of confidence or any other restriction on the disclosure of the information. This provision ensures that public authorities can be confident that their disclosure is lawful, provided that they comply with the strict requirements of this legislation. To remove that subsection would undermine a primary objective of providing authorities with the legal certainty required to ensure efficient and effective data sharing under these powers. In other words, where they satisfy the requirements of this legislation, they do not have to go back and worry about any aspect of the common law of confidentiality on individual occasions, which would effectively make the provision unworkable.
Amendment 93 seeks to expressly exclude health data from the public service delivery clauses. I have already touched upon this. The Government believe that this amendment, while well intentioned, is unnecessary and would lead to the kind of legislative barriers that the Bill is designed to overcome. As I have indicated before, the Government recognise the particular sensitivities around identifiable health information, and indeed this was highlighted in the National Data Guardian’s recent review of data security, consent and opt-outs. For this reason, health bodies in England are not included in the draft list of bodies that will be permitted to use the powers in the Bill. Health and adult social care information, however, could potentially be of considerable assistance in bringing benefit to individuals, as this power aims to do. I acknowledge that we may wish to bring such bodies within the scope of these powers in future, but we will form a view on this after the implementation of the National Data Guardian’s recommendations and public consultation on the issue. We believe it would be wrong to rule out that possibility until that debate has been concluded. However, I underline the point that at present health bodies in England are not included in the draft list of bodies that will be permitted to use these powers.
I turn to Amendment 100. Clause 34(8) provides that the prohibition on onward disclosure, and its associated provisions, do not apply to personal information disclosed by HMRC. The amendment seeks to remove that provision. There was a suggestion that someone was seeking consistency here. Throughout Part 5 of the Bill, in order to take account of HMRC’s statutory duty of confidentiality and maintain consistency with the existing statutory framework in respect of HMRC information, the Bill contains separate provisions for the disclosure of information by HMRC. Criminal sanctions apply to the disclosure of HMRC information, but it is all framed slightly differently in order to be consistent with earlier statutory provision. I refer in particular to the Commissioners for Revenue and Customs Act 2005, which already covers these areas. The effect of the noble Baroness’s amendment would be to create two regimes for disclosing HMRC information under this power. We suggest that that would undermine consistency between Part 5 of the Bill and the provisions that already exist under the Commissioners for Revenue and Customs Act 2005. I hope that that goes some way to explaining why HMRC, though not a special case, is dealt with slightly differently within Part 5.
The noble Baroness, Lady Byford, then referred to Amendment 196. Again, in the context of accountability for public interest disclosures of non-identifying HMRC information, the aim of Clause 65 is to enable Her Majesty’s Revenue and Customs to meet requests from external organisations to provide aggregate statistics or general information, which is what other government departments do. Safeguards for disclosure of personal information will continue to apply for the reasons I have already alluded to. This amendment, again, would be inconsistent with HMRC’s existing statutory framework which authorises officials to act on behalf of the commissioners of revenue. It would not be practicable for the commissioners of revenue to have to deal with each of these requests. Indeed, it would be an unnecessary use of public resources if that was the case.
The noble Lord, Lord Clement-Jones, raised a point that appears to have prompted a note from the Box which I have not yet read. I shall scan it now. And I will undertake to write to the noble Lord. On that occasion, I will use typescript.
In those circumstances, I invite noble Lords not to press these amendments.
My Lords, the noble and learned Lord may have already answered this, as his response was inevitably very full and quite dense, but on my question about Clause 33(8)—and the words are repeated in other clauses—although nothing in the sections authorises a contravention of the DPA, is there personal information within the Bill that would not be within the DPA and therefore not protected by that subsection?
I am obliged to the noble Baroness, Lady Hamwee. Although the definition of personal information differs from the definition of personal data in the DPA, all personal data shared and used under the public service delivery provisions must be handled in accordance with the framework of rules set out in the DPA, and in particular with the data protection principles, because the DPA is not overridden by this chapter. To the extent that the class of personal information is wider than personal data, although the DPA does not directly govern such information, we still expect that information will be handled in accordance with that framework because of the requirements of the codes of practice under Part 5. I hope that answers the noble Baroness’s question.
My Lords, I see an amendment at Report coming up.
My Lords, I thank the noble and learned Lord for his comprehensive response. Clearly, there is a lot in the codes of practice, so we await the response. I welcome, too, his commitment to come back to report on the issues that the Information Commissioner and we have raised.
Both the GMC and the BMA raised the issue of confidentiality and the common law. They obviously have legitimate concerns about the future impact. Confidentiality is not simply an issue of administration and protection administratively; it is a fundamental issue about the nature of the relationship between doctor and patient, where trust is absolutely vital for medical treatment, ongoing treatment and so on. We may have to come back to this issue at Report. In the meantime, I beg leave to withdraw the amendment.
Amendment 81B withdrawn.
Clause 30 agreed.
Amendment 82 not moved.
82ZA: After Clause 30, insert the following new Clause—
“Review of the collection and use of data by government and commercial bodies
(1) Within six months of the passing of this Act, the Secretary of State shall commission an independent review of the collection and use of data by government and commercial bodies and shall lay a report of the review before each House of Parliament.(2) The review under subsection (1) shall consider—(a) the increasing use of big data analytics and privacy risks associated with big data;(b) the adequacy of current rules and regulations on data ownership;(c) the collection and use of administrative data;(d) any other matters the Secretary of State considers appropriate.(3) In conducting the review, the designated independent reviewer must consult—(a) specialists in big data, data ownership and administrative data;((b) those who campaign for citizens’ rights in relation to privacy, personal information and data protection; (c) any other persons and organisations the reviewer considers appropriate.(4) In this section “big data analytics” means the process of examining large datasets to uncover hidden patterns, unknown correlations, market trends, customer preferences and other useful business information.”
My Lords, as one of my colleagues in the trade union movement used to say, there may be a sense of déjà vu: we are going to be repeating issues in these amendments. As we have said, transparency is a vital ingredient in building public confidence. If we do not have public confidence we will not have effective data sharing and therefore the aims and objectives of the Bill will not be met. That is why we are very keen to focus on the elements of how we build that confidence, with transparency as the vital ingredient. That is why we are proposing to have an independent review of the collection and use of data by government and commercial bodies. A report of that review would be put before Parliament.
Having spent a considerable part of the weekend reminding myself about the Data Protection Act—I was responsible in the trade union movement for elements of implementation of data protection—I was struck by how complex the law can be and how different elements impact on each other. That is where we need to do more to build public confidence. People are concerned, asking. “Why do they want it? How are they going to use it? Have they used it? Have they done it without my knowledge? Have I given consent? Shouldn’t I be allowed to give consent?” All those issues need explanation. That is why transparency provisions in the amendments are really important. Where there has been a breach it needs to be effectively reported and dealt with. Some of the episodes we have seen in the private sector are scandalous—breaches of data have occurred and nothing has been said for years, let alone weeks and months. Whether we like it or not, those breaches in the commercial and private sector will impact on people’s confidence about the Government’s ability to share data fairly. That is why we need to be open about how we are dealing with problems. I come back to the Minister’s point on infallibility. Of course we are not infallible; but whenever mistakes happen, we want to make sure we learn from them and minimise the risk of them happening again. That is what we seek to do in these amendments.
The more we move towards digital government, the more we need to ensure that all these issues are properly recorded. Again, that is why we are proposing mandatory transparency in the public register of data-sharing agreements. It is about building trust in the process, with people knowing they will have to be accountable for their decisions in this area.
Transparency must be central to the process, alongside privacy and security. It is one of the arguments that we would make strongly in this group of amendments. No doubt we will hear from the Minister about it being mentioned in the code of practice and how that will be vital. I agree that we have seen a lot of movement; what we want to do as we move forward is to receive reassurance that the principle of building confidence will be openness and transparency. I beg to move.
I am drawn to recall the words of the noble Baroness, Lady Buscombe, when she spoke on some of these issues. She said that the technology was moving so quickly that we need to be aware that things are changing—and that it would be important for the public to trust these procedures. A review of these processes is a good thing. Equally, government sometimes changes very slowly, so it may be a better opportunity to revisit some of the issues during a review. We would certainly support that. Again, it has been drawn to our attention by a number of data breaches that have not been notified, ever—so we certainly support the processes that have been outlined in the amendments about putting these on record to have the trust and confidence of the public. Our Amendment 111 in this group is to do with individuals being notified that personal data have been disclosed about them. Again, we feel that this is very important to engender public trust in the processes that we are introducing.
My Lords, I would like to speak to Amendments 213A to 213C, which explore the Government’s commitment to transparency and how people can know about information-sharing agreements that are in place and, looking to the future, how the equivalent of a subject access request could work, explicitly to assist with fraud detection.
I draw the Committee’s attention to the comment from the Delegated Powers and Regulatory Reform Committee at paragraph 52, which noted that, without even allowing for parliamentary scrutiny, the powers in Clause 39 as drafted are as “inappropriately wide” as those in Clause 30, and seem to be deliberately so. Those very wide powers are of great concern. As an increase in digital technology emerges, the public need to be informed to understand how to use the resources available to them—and they need to know how data on them, as citizens, are being used. They must have confidence in the safeguards in place, otherwise we will have a population that increasingly refuses to engage with any kind of data registration.
It is unclear where health issues sit in this Bill. I declare all my interests in relation to health, as in the register. The powers can include, in Clause 30(10)(a), individuals’,
“physical and mental health and emotional well-being”.
That suggests that health data must fall within the remit of this clause, whether held originally by the NHS or whether they are then held by other bodies. It was in an interview that the Government Digital Service director-general gave as an example the large databases between the NHS and the DWP, commenting that these are large databases of citizens’ records and that we really need to be able to match them, which would suggest a read-across between the two. So while there is a prohibition in the Bill on the use of health and social care data for research, the approach may not have a prohibition in relation to data otherwise disclosed. The NHS bodies, for example, hold the data and, although the Secretary of State is not currently listed in the regulations as published, it is difficult to see how the Secretary of State could not be added to regulations at a later point.
The DWP sometimes requires health data from people that it is dealing with and, effectively, compels them to require the NHS to provide their data. Once the DWP becomes the holder of the data or the data controller, it would fall within the clause as already written. So health information would no longer continue to be excluded from the powers, and the DWP policy, interestingly, although it asks for data from the NHS, does not seem to trust NHS assessments of patients—but I shall not go further down that road at the moment.
When we come to fraud and debt, the powers described in the codes of practice required by Clause 36 provide for partial accountability. The public service delivery powers defined in Clause 30, the single clause that affects most departments, have significantly reduced oversight and, effectively, transparency. Again, the concern was about these being inappropriately wide powers, as reported by the Delegated Powers and Regulatory Reform Committee.
Transparency has to be a fundamental principle when copying citizens’ data—and particularly when copying large portions of citizens’ data en masse. Therefore, it seems strange that it does not appear as a distinct section of the Bill; I ask the Minister to explain why the Government have not put transparency on the face of the Bill. The copying of data between different bodies would be covered by my amendments, as it would require all data-sharing agreements to be included in the public register. As with the NHS digital data release register, this register of data sharing would provide transparency and hence accountability. A code of practice is not enough, and it is not clear how non-adherence to any kind of code of practice would be detected. In Amendment 103, noble Lords have sought detail on a register of data disclosure. On that basis, I ask the Government to confirm that people will have one place where they can find details of the different data-sharing agreements. It is not enough to suggest that people can make a Freedom of Information Act request. Few people would do this, and it will allow organisations wriggle room. The problem is that once vast amounts of data have been shared, they cannot be unshared. A register of agreements would be far more open and would be accessible. After all, it is not how government says that powers will be used but how they could be used in future that causes public concern and hence the need for transparency.
The requirement for people to know their rights leads me to the second point. Can the Government confirm that a digital equivalency of rights will be in place, which will not require burdensome processes for the citizens? Digital equivalency means that government must make sure that people know that their rights are protected, in the same way as currently, in the much more non-digital world. The concern relates to the increasingly complex interdependent data on each person, which can be connected and used, whether to assist that person or otherwise.
My third point relates to the Government’s use of data in the future. It is difficult, or impossible, to foresee the future but we can be pretty sure that the way data are used in 100 months’ time will be similar to the way they will be used in, say, 98 or 99 months’ time. In other words, the best way to know how your data might be used next month is to see how they are being used in the current month or were used in the previous month. What we are talking about is, in effect, a form of subject access request, so I ask the Government to provide the same protections here as the Data Protection Act currently does for other forms of subject access request, and to create digital equivalency.
In health, there has been much concern around the secondary use of medical data, which do not differ fundamentally from the type of data anticipated here. As I explained, there can be a second holder of such data, and they will be desired by other bodies—both public and private. The problems that arose in 2014 with the care.data programme eroded confidence. It is worth noting that the latest Caldicott review calls for a continued, informed conversation with patients about their data. Although I believe the Government have said that Part 5 does not apply to health data, pending the outcome of their response to the review, there is, indeed, concern that health data could be transferred via a third party.
On data that could be used to detect fraud, there seems to be no reason why the standard declaration for this purpose could not cover all lawful anti-fraud activities. Law-abiding citizens could, as with the provision of bank or mobile phone statements, allow transparency here, and this could reduce the opportunity for people to cheat the system. People would then be able to better detect fraudulent activity themselves. Indeed, such an ability would be most helpful for the Office of the Public Guardian which has a large fraud department. It would allow it to directly access data concerning a subject’s finances, which is currently held by a court-appointed or person-appointed deputy, attorney or guardian. This would allow the fraud department to investigate much more effectively as it would not have to seek permission from that appointee, a situation which has allowed fraud to occur in the past. There have been notable examples of difficulties in detecting financial fraud. Amendment 213C may specifically help with such detection.
My Lords, the noble Lord, Lord Collins, should make no apology for revisiting the issues of transparency and public confidence because they lie at the heart of what this Bill is attempting to achieve and are contained in Part 5. It may be déjà vu again but that is perfectly justified by the circumstances. We are all concerned to ensure that there is such transparency within these provisions as to maintain, and perhaps even restore, public confidence in the use and sharing of data.
Amendment 82ZA proposes that, within six months of the Act coming into force, an independent review of the collection and use of data by the Government and commercial organisations is conducted. With respect, the scope of the review appears extremely broad and goes much further than the provisions of Part 5. The Royal Society and the British Academy are undertaking a review to consider the ethical and legal frameworks needed in the United Kingdom as data technologies advance. We intend to consider the findings of that review when it is published. In addition, I mentioned that the general data protection regulation will come into effect in the United Kingdom in May 2018. The implementation of that regulation will represent a significant change to the data protection legal framework for both the public and private sectors, including strengthening rights for individuals so that they have more control over their personal data. We intend to work with the Information Commissioner to explore how we can best meet these requirements, as well as to improve transparency in this space. As such, we do not see the value in commissioning a further major review of data ahead of preparing to implement the new data protection framework when the regulation comes into force in May 2018.
Amendment 103 also seeks to improve the transparency of data sharing under the powers in Part 5. As I have indicated, we support this intention as transparency, along with the protection of personal data, is clearly at the heart of all these proposals. There are, however, a number of real problems with the proposed new clause. Setting the requirement and contents in primary legislation would significantly restrict our ability to explore and consider the benefits and consequences of publishing a register. For example, there may be a need to exempt the inclusion of certain types of data sharing for reasons such as national security or commercial confidentiality.
Ahead of the 2018 regulation coming into force, we will work with the Information Commissioner’s Office and other interested parties to explore how we can best meet its requirements and improve transparency. In our view, the statutory codes of practice in the Bill are a more appropriate vehicle for setting out requirements to support greater transparency. We will run a public consultation on the codes of practice as well as the required statutory consultations and we propose, as part of that, to gather views on the type of information about data sharing that should be captured and made public, as well as the risks and benefits. In addition, the draft codes already contain requirements for privacy impact assessments to be prepared and published. Further, we are continuing to explore with the Information Commissioner whether more can be done in this Bill to ensure that his codes of practices on privacy impact assessments and privacy are fully considered when data are shared under Part 5. I hope to return to this point later in the proceedings.
Amendment 104 proposes an obligation for organisations to report data breaches and submit associated audit returns to the Information Commissioner’s Office. As I have indicated, the EU general data protection regulation will apply in the United Kingdom from May 2018. The new regime will introduce tough measures on breach notification, making it a requirement for all data controllers and data processors to report breaches to the Information Commissioner’s Office if they are likely to result in a risk to the rights and freedoms of individuals, and the individuals affected must also be notified where there is a high risk. The new regime will also allow tougher penalties to be imposed on organisations in breach of the rules. I believe these will be penalties of up to 4% of the organisations’ total global annual turnover, or €20 million.
Under current arrangements, the Information Commissioner’s civil monetary penalties guidance says that he can take into account what steps, if any, the person or organisation had taken once they became aware of the contravention, when determining the amount of the monetary penalty to be issued, so there is provision for those who delay or defer the reporting of data breaches. At this stage, we are confident that the Information Commissioner has the necessary powers to take action against those organisations that are in breach of the rules so, while I accept the spirit of the amendment and understand the need for transparency, I do not believe it is necessary as the new tougher rules under the EU regulations will apply from May 2018. As I stated, under the current regime, the commissioner can and does take into account what steps, if any, an organisation has taken in addressing breaches and in deciding penalties under the Data Protection Act.
Amendment 111 would require a secure audit record to be compiled specifying the personal information shared under the public service delivery power. This well-intentioned amendment is also considered unnecessary. The code of practice that has been drafted in support of the public service delivery provisions already requires an audit to be kept by data controllers of information shared under this power, and the Information Commissioner’s data-sharing code of practice similarly requires organisations to keep records of information shared. In addition, the EU general data protection regulation will apply to Part 5 and place further specific legal obligations on organisations to maintain records of personal data shared and of processing activities. Organisations will now make the necessary preparations to comply with that regulation.
For the benefit of the noble Baroness, Lady Finlay, I emphasise that the processing of personal data under the public service delivery power must already be in accordance with the Data Protection Act. The Information Commissioner is responsible for enforcing and promoting compliance with the Data Protection Act. The commissioner undertakes a programme of consensual audits across the public and private sector to assess their processing of personal information. The commissioner also has the power to conduct compulsory audits of public sector entities to evaluate compliance with the data protection principles. The commissioner has powers to obtain access to the information she may need to conduct those assessments.
I turn to Amendments 213A, 213B, and 213C. Amendment 213A would require that any agreement to share data under Part 5 be listed in a register of data-sharing agreements published in digital form. Our position on this amendment is similar to that with respect to Amendment 103. The statutory codes of practice under the Bill are a more appropriate vehicle to develop and set out requirements to support greater transparency. A public consultation on the codes of practice as well as the required statutory consultations will allow us to gather views on the type of information about data sharing that should be captured and made public, as well as the risks and benefits. Amendment 213C relates to the way in which given data sharing ought to be described in any public register. Again, this is a matter to which further thought can be given when a view is taken as to the nature of any such register.
Amendments 213B and 213C seek to confer additional rights on data subjects, not just in respect of these data-sharing powers but more generally, to exercise their rights via digital means, and to object to processing undertaken by a data controller, with an accompanying provision enabling the data controller to disclose certain information in respect of these objections. Again, I remind the noble Baroness, Lady Finlay, of the provisions of the Data Protection Act 1998, which already provides sufficient protections in all these areas, providing mechanisms and remedies for perceived mishandling of personal data, complaints and access to personal data, among other things. These provisions would cut across the existing data protection regime and would be potentially confusing. Such fragmentation could discourage appropriate data sharing for the public benefit.
We are committed to making it as easy as possible for citizens to understand what data are held about them and the purposes for which they are processed. The codes of practice rather than further primary legislation are the appropriate means for doing this. We are working with the Information Commissioner to ensure that our codes provide sufficient guidance to ensure that this approach is effective, and that there will be compliance with the data processing regulation when it comes into force in May 2018. We are aiming for that. That will be reflected in the approach we take to the codes of practice and consultation. For these reasons, we suggest that these amendments are unnecessary and I invite noble Lords not to press them.
I thank the Minister for his response. We await the revised and improved codes of practice, which will be a fundamental ingredient in building confidence in data sharing. If there are existing powers with regard to the requirement to report breaches, I think most people in this country will wonder why Yahoo was not picked up for failing for 10 years to report a breach which could have impacted on its confidential financial information. I welcome the fact that we will come back to these issues at later stages following consultation with the Information Commissioner. We know what is in the GDPR and what we are required to do. It will come into force in May 2018 and it is very important that the Government commit to the principles in it. We may have to come back to that issue at later stages of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment 82ZA withdrawn.
Clause 31: Disclosure of information to gas and electricity suppliers
Amendments 82A to 83 not moved.
Clause 31 agreed.
Clause 32 agreed.
Amendments 83A and 83B
83A: After Clause 32, insert the following new Clause—
“Disclosure of information to water and sewerage undertakers
(1) If the first and second conditions are met, a specified person may disclose information held by the person in connection with any of the person’s functions to— (a) a water or sewerage undertaker for an area which is wholly or mainly in England, or(b) a water or sewerage undertaker for an area which is wholly or mainly in Wales.(2) The first condition is that the disclosure is for the purpose of assisting people living in water poverty by—(a) reducing their water or sewerage costs,(b) improving efficiency in their use of water, or(c) improving their health or financial well-being.(3) The second condition is that the information is disclosed with the intention that it will be used by the undertaker in connection with provision in the undertaker’s charges scheme under section 143 of the Water Industry Act 1991 which is included in that scheme—(a) in compliance with regulations under section 143A of that Act which impose requirements within subsection (2)(d) of that section (power for regulations to require charges schemes to make special provision for particular classes of individual), or(b) by virtue of section 44 of the Flood and Water Management Act 2010 (social tariffs).(4) In the case of a person (“P”) who is a specified person merely because of providing services to a public authority, the reference in subsection (1) to the functions of a specified person is limited to the functions P exercises for that purpose.(5) For the purposes of this Chapter a person lives in water poverty if the person is a member of a household living on a lower income in a home which—(a) cannot be supplied with water at a reasonable cost, or(b) cannot be supplied with sewerage services at a reasonable cost.”
83B: After Clause 32, insert the following new Clause—
“Disclosure of information by water and sewerage undertakers
(1) If the condition in subsection (2) is met, a person to whom information may be disclosed under section (Disclosure of information to water and sewerage undertakers) may disclose information held by that person to a specified person.(2) That condition is that the disclosure is for the purpose of assisting people living in water poverty in England and Wales by—(a) reducing their water or sewerage costs,(b) improving efficiency in their use of water, or(c) improving their health or financial well-being.”
Amendments 83A and 83B agreed.
Clause 33: Further provisions about disclosures under section 30, 31 or 32
83C: Clause 33, page 32, line 13, leave out “section 30, 31 or 32” and insert “any of sections 30 to (Disclosure of information by water and sewerage undertakers)”
Amendment 83C agreed.
Amendments 84 and 85 not moved.
House resumed. Committee to begin again not before 8.37 pm.
Question for Short Debate
To ask Her Majesty’s Government what assessment they have made of the impact of Brexit on the transport sector in the United Kingdom.
My Lords, across the world trade normally takes place most intensively with our neighbours. There are exceptions to that, of course—not much passes between North and South Korea, for example—but, setting aside countries with major ideological and diplomatic differences, it is obviously sensible to concentrate on trade with your neighbours. Distance costs time and money.
Even the vote of 23 June did not totally undermine those basic truths. It was possible for us to leave the EU while remaining in the single market, leaving intact the basic principles of successful international trade. However, the Government have decided to go for a very hard Brexit dressed in the clothes of bold internationalism. We are turning our back on Europe and seeking friends across the other side of the world.
Whatever the agreements made for trade in goods or services with the remaining EU and the rest of the world, trade will grind to a halt if we can no longer transport our goods or personnel. Our international trade stands on the shoulders of our airlines, HGVs, shipping and ports and our railways, so transport agreements must be prioritised. We are part of EU transport agreements which will have to be unpicked and hopefully replaced. There is a host of agreements with countries beyond the EU to which we belong as EU members, and these too will have to be replaced. That is the first step to stay where we are at the moment. The transport industry’s economic impact underpins all the rest. Get this wrong and nothing functions properly, from the City of London to the car industry in Sunderland.
I start with aviation, worth £52 billion a year to our economy. We have the third-largest aviation network in the world, and 54% of scheduled commercial flights from the UK go to the EU. The single aviation market has revolutionised the way people travel, with the advent of cheap flights. Airlines can have a base in one member state and operate on a cabotage basis between other member states. Therefore, easyJet can fly not just between the UK and Italy but between Germany and France or between airports within Italy, for instance.
Obviously, airlines want to carry on doing this. Post Brexit, they want the UK to become part of the European common aviation area, but this would require acceptance of EU aviation law. They also want us to remain a member of the European Aviation Safety Agency. Unless our airlines continue to get unfettered access to EU markets, they warn of inevitably rising air fares. They need to continue to employ staff from across Europe, with current employment rights protected. There is a host of other issues, such as security, repair and maintenance arrangements, pilot licensing, the availability of slots, air traffic management and so on.
Then there is the open skies agreement between the EU and the US. We are a member by virtue of being an EU member. We are part of a single airspace block with Ireland, which will of course remain in the EU. Therefore, continuing as a part of the open skies agreement will require obvious compromise, as it will involve sharing competence with EU institutions.
The road haulage industry has a similarly complex reliance on an open EU market. Even our domestic road hauliers will be impacted by withdrawal from the EU because 60,000 EU nationals now work in UK domestic transport. Any EU operator with an international operator’s licence can transport goods between any EU countries. EU rules underpin much of the regulatory regime for the road haulage sector, covering qualifications and licensing, drivers’ hours and tachograph standards, vehicle standards, roadworthiness and so on. There is significant co-operation between enforcement agencies across Europe, and safety on our roads is dependent on EU agencies and EU standards.
The main concern of the industry is that new certificate of origin rules, permits or quota systems would lead to delays at ports and add to the cost of goods. It points out that our ports have physically developed without the space or systems to allow significant amounts of paperwork to be processed. To transport a lorry load of goods from London to Milan in 1988 required 88 separate documents; it now requires one. I think that that says it all. UK ports handle 95% of imports and exports by weight. About half our maritime trade is with the EU. The British Ports Association estimates that, based on current trade levels, HMRC will have to process about 300 million additional customs declarations each year. There is a major fear of bottlenecks and disruption at ports.
I come now to railways, where there is concern about the bedrock of staff employment rights, passenger rights and safety. Mostly, of course, trains run entirely within our borders, but the obvious exceptions are Eurostar and the freight trains running through the Channel Tunnel. The tunnel carries a quarter of the UK’s trade in goods with the EU. Of course, the dream of the Channel Tunnel is far older than the EU, but it has been built and run as part of the EU. The possibility of tariffs and quotas will have the same impact on its operators as it will on the ports. Eurostar is a UK company and its whole purpose is to link us with Europe. It has thrived on the free movement of people. The EU directive establishing a single European railway area, with common rules and principles, has opened up markets in Europe. The costs are reduced by mutual recognition of qualifications and a consistent approach to safety. Eurostar wants to continue to recruit strongly from within the EU and to work closely with rail operators in Europe.
The themes I have spoken of are echoed by the bus and coach industry. It too wants to be able to trade freely with the EU—to take passengers without needing a visa and to bid for contracts in other states. It too values the simplicity that the EU has brought and the rights of access to those markets.
I want to make a final point on infrastructure development and the Trans-European Transport Network. It developed a transnational approach to infrastructure development and is a vital source of funding. It was expected to provide between 4% and 6% of the overall cost of HS2, for instance—a significant black hole for the Government now to fill.
There are some recurring themes: free access to markets with no tariffs or barriers; free movement of labour; a common and consistent approach to maintaining security, safety, regulation, employment rights and consumer rights; the right to invest on equal terms throughout EU member states; and common environmental standards. I have not had time this evening to explore the need to work together across the European Union on vehicle standards in order to improve air quality.
Those are not my demands; they are all taken from statements made by the major transport trade bodies and companies. The transport industry wants the future to look as much like the present as possible. It believes that the EU has in general enabled its businesses to expand and thrive. I have no doubt that the Minister will talk this evening of alternative markets—a big, bold, beautiful Brexit, with Britain trading with the US, China and Australia. However, I am not comforted by last week’s White Paper.
I have no doubt that major shipping companies and the big airlines will adapt and prosper over time, but there are huge parts of the transport industry which cannot do that: the markets of HGV operators have to be among their close neighbours; for ferry companies, long-distance options are not possible; markets in China are no use for bus operators which currently take tourists down the Rhine valley; and for Eurostar and the Channel Tunnel, trade with Europe is their whole purpose. For all of them, the Government’s decision to leave the single market cuts at the roots of their business.
My Lords, rising as though from the Bench of Bishops, I take as my text this evening what the Latvian Prime Minister, Mr Maris Kucinskis, said during the weekend summit in Malta:
“What is most important is to think about a beneficial partnership … Every member state is looking to build the best possible trading relationship with the UK and I think that the whole Union will also benefit from a strong trading relationship”.
Those remarks certainly apply, as the Prime Minister of Latvia said, to transport as to everything else economically. He represents the new generation of younger, realistic EU leaders—still, small voices of calm who should be listened to very carefully.
In the end, my assessment of the impact of Brexit on the transport sector is that it will not be very great. That is because I think that the European weather is changing. Increasingly, grown-up voices, also since Christmas, have been urging the need for a change in the European weather, urging amicable separation, and no one more economically grown up—and, to me anyway, personally more admirable—than the brave German Finance Minister, Dr Wolfgang Schäuble. He was saying just that at Davos, as well as in a very carefully worded interview over the weekend in Tagesspiegel. He said that the euro was overvalued in relation to the German economy, continuing:
“We want to keep Britain close to us. London’s financial centre serves the whole European economy. London offers a quality of financial services that are not to be found on the continent”.
I respectfully agree with the man who has been German Finance Minister so successfully since 2009. What he says is critical for UK transport and much else in other economic sectors post Brexit. Flows of capital into and out of the City, where I work, are critical to the domestic economy. Had Dr Schäuble said the opposite, panic would probably have set in in the media overnight, and I think it is strange that the good news of his very positive views going forward have not yet been any more than scantily reported.
For the generality of people in the country at the moment, although the noble Baroness, Lady Randerson, made her points so well, the transport matters following from Brexit are not of much concern yet—perhaps they will be later. People are more concerned about the chaos on British railways and on the Underground. That really need rapid attention. TfL and the mayor need to get going and sort out what is going on in London Underground. Above all, we need to bring about existential changes in industrial relations in the transport sector.
That said, the biggest benefits for the transport sector, by comparison, are not to be found in detailed Brexit negotiations but by our remaining stalwartly open to foreign direct investment, in a way largely unknown to most of our current EU partners. They do not necessarily welcome FDI in the same way as we do. Take the 1 February announcement of UK manufacturing figures for January 2017. It was a cracking start to the year in transport and other sectors—as my noble friend the Minister will know—and where German and French companies have long been players. We rightly regard our transport infrastructure and services as vital, but we do not protest against foreign direct investment and instead welcome it into this country. We do not adopt a protectionist attitude, unlike the French a few years back when they declared their yoghurt manufacturer, Danone, a strategic asset when it was receiving possible takeover attention from foreigners. We take a much more enlightened approach. The US has well-developed institutions governing the transport sector, and the professional consensus is that market liberalisation is well developed compared with many other member states.
Following Brexit, foreign direct investment into transport should be welcomed, whether in manufacturing or indeed service provision. Take rail services and the bidding for franchises: public procurement arrangements and international trade rules operate on the reciprocity principle. In these changing times, both sides will wish to see UK operators in the UK mirroring the treatment of EU operators wanting to win franchises in this country. It is totally mutually self-destructive not to do that. In the EU, all rail franchises must be competitively tendered in the 2019 to 2022 period, so all that is needed is for operators to continue to comply with regulations concerning safety and technical standards—ditto for UK operators wishing to compete outside the European Union, for the UK will remain an active member, and I welcome that, of the Intergovernmental Organisation for International Carriage by Rail.
I move to a second and last example, from rail to road transport. The noble Baroness, Lady Randerson, in the closing words of her very important and interesting speech, raised the issue of vehicle standards and emissions. In my closing words, I agree with her. Here, I think Brexit will allow us to show leadership to the rest of Europe on the approval processes and procedures for vehicles and their emissions. Not only is the UK happily one of the world leaders in car manufacture, but our companies have played it straight throughout on emission measurements in this country. They have certainly played it very straight compared to the emissions scandals affecting some German and French manufacturers, which are an utter European disgrace. I think the world’s consumers will look very favourably on any additional UK approvals as backing up the global reputation of our motor manufacturers. We can take a leadership role in honesty, which will be a great selling point for the UK, its cars and transport sector and so many other areas of transport policy.
My Lords, the noble Lord, Lord Patten, has a very overoptimistic view of the position. I agree that transport is likely to be one of the sectors least affected by Brexit, but the hope for a positive mood among the politicians of Europe, which was certainly still there after the initial shock two or three months ago, has been sadly disappointed by the way in which the Prime Minister’s definition of the UK’s bargaining position has excluded us from any form of membership of the single market and any form of real participation in the customs union. Both of those seriously affect the transport sector.
I thank the noble Baroness, Lady Randerson, for introducing this interesting debate. She and I are both members of the same sub-committee of the EU Select Committee, which has been looking at trade. When we looked at the options for trade, at that point we still considered partial membership of the single market at least as a potential option, as with at least temporary continued membership of the customs union. We have received evidence from and talked to, formally and informally, representatives of manufacturing and of goods and services, and we are now looking at services in more detail, including transport services. The initial reaction of those industries, after the shock of the referendum vote, was panic, and then they came back with the view, sector by sector, that, “Okay, we are where we are, but we could do a sectoral deal on this front and still retain all the key issues of membership of the single market”. I am afraid the Lancaster House speech, followed by the White Paper and the Statement with the White Paper last week, have cut off that possibility.
As the noble Baroness pointed out, transport has been hugely integrated across Europe for the past 40 years—not totally but to a significant degree. A regulatory structure applies to the whole of European transport, including on issues of safety, ownership, routes and vehicle standards, as has been said. These are all easy to deal with within the single market; they become much less easy outside the single market.
In aviation, there is probably greater scope for doing a bespoke deal than there is for the other sectors. European airspace already extends to some extent beyond the European Union—to Norway, Iceland and some of the Balkan countries—but it is very important that we establish early on in the negotiations that aviation is dealt with as a one-off. Not only does it define the use of European airspace and our access to European airspace, which at the moment also includes issues of establishment and whether UK-owned airlines or UK-domiciled airlines can operate effectively in other countries and within other countries, but it also defines our relationship with the rest of the world, including the open skies agreement with the United States. We need to retain that. That can probably be dealt with in a separate deal. Whether it could be dealt with in a separate deal entirely within a free trade agreement—which appears to be now where we are in terms of narrowing down our options, which we have, unfortunately, done over the past couple of months—is not entirely clear.
If we were to take the jump off the cliff, concluding that no deal is better than a bad deal, and go to WTO standards, we would still probably be able to do a separate deal on aviation, but that would require a lot of negotiation, hard bargaining and recognition of what the key British interests are in terms of retention of routes, slots, airline establishment and so forth. Aviation is somewhat different from the other modes of transport. Its regulatory system is very much an EU responsibility and competence.
I could argue that, if we reverted to control of the rail system with renationalisation of the railways, which I think is still the Labour Party’s policy, that would be more easily achieved outside the EU. It is not completely banned by the fourth railway package that we are currently negotiating, but it would be more difficult were we to remain members of the EU. However, the through routes to which the noble Baroness referred, such as the Eurostar and the large amount of freight that is carried by railways and so forth, all affect the railway sector. That is an essential part of the single market mechanism, and we will be outside the single market mechanism.
In road transport, there are a whole range of regulatory structures involving driver hours, vehicle standards, vignettes and cabotage arrangements and so forth. Drivers are an international workforce, so getting control of migration may limit the degree to which British operators and foreign operators trying to trade import and export from the UK have access to a skilled workforce. Once again, road transport arrangements are a key part of the single market, and we will be outside the single market.
On shipping, a lot of shipping is between ourselves and Europe and there will be arrangements on safety, standards and routes that are part of the single market. But the far more important aspect of the maritime situation is ports. It may be beneficial for the owners of UK private ports, which are by and large privately owned within the UK, to be free of the regulatory structure that exists within Europe, which is largely geared to publicly owned ports. The problem for ports is not ownership or regulation but that, outside of the customs union, we will face all sorts of additional responsibilities on port administration, port space and the cost at the port level. If we are to be outside of the customs union, the movement of people and goods through our ports will be a much more complex issue. It will require space to check, and it will require administration and bureaucracy. Some of it can be subject to electronic arrangements these days, but much of it cannot. In the end, because of the configuration of most UK ports, it will be difficult to extend the time, parking space and so forth which, even under the current arrangements, have been under some considerable strain, as we have seen particularly in Dover, over recent years. The need for additional space, checks and bureaucracy and the delays in shifting goods by road, rail through our ports and through our shipping will significantly increase.
All that is because we have taken a decision in principle that we will move away from the customs union. The ambiguous words in the Lancaster House speech have now been whittled down to mean that any continued co-operation is on administrative arrangements. Desirable as those may be, they will not stop all the pressure on our ports, our roads, our shipping and our rail systems. The narrowing down of the options by the Lancaster House speech has put a greater burden on transport than looked like being the case a few weeks ago.
My Lords, I will add some burdens to the Minister in his reply by mentioning other factors that must be taken into account. I will talk about the British bus building industry. It is one of our great successes, with Wrights of Ballymena, Alexander Dennis in Scotland and Optare in Leeds. They are world leaders in the manufacture of buses. When we talk about buses, we always talk about all the components that go into building buses. I want to know that these people will be able to trade with countries in Europe on the same basis as they do now. If they are not, it will immediately deal a blow to employment prospects here. There are plenty of other people waiting to fill the gaps that we create for bus purchases.
Secondly, I am concerned about road safety. Figures published in the last couple of days show that serious road casualties of children are going up again, quite steeply. In statistics published by the Department for Transport, little coloured markers show each road user—pedestrians, cyclists, motorcyclists and cars. But lorries are missing. The need to keep the strictest control on lorries is vital if road safety is to be enhanced. Most serious casualties involve one or more heavy goods vehicles. Any race to the bottom that may be envisaged to allow the road haulage market to be liberalised must be balanced very carefully with the damaging effects of that on road safety and on the environment.
The existing railway franchise competitions, which when the railways were privatised were envisaged as something quite separate from the state, are now populated heavily by not only European Governments but foreign Governments. To that extent, I suppose they are nationalised. However, if they withdrew from competitions, which is a possibility, there would be very little competition left in the British market. Very often, they are one of two bidders, or two out of three, for franchises. They mostly run the trains very well and bring a lot of experience, but if we cut ourselves off, that element of competition will not be available to us.
Lastly, I turn to the position of Airbus. It is a joint venture between France, Germany, Britain and, I think, Italy. A huge number of skilled workers in Cheshire depend on Airbus for their living. If the Airbus consortium were broken up in any way, Cheshire could lose out very heavily because there are manufacturers on the continent of Europe that will willingly step into the void left by our withdrawal, and there will be tremendous casualties. That applies in a lot of other areas besides transport. A lot of employment depends on our remaining in the European Union. The examples that I have cited involve transport—I have tried to stick to this particular debate—but I am sure there are many others in many other areas.
My Lords, I am grateful to the noble Baroness for securing this debate because there are interesting and important issues that we have to discuss. The noble Lord, Lord Patten, mentioned the leadership of the UK on emissions. He may or may not be right, but when it comes to the production of emissions, which is the dirty air that we breathe in our major cities, the European Union has launched infraction proceedings against the British Government because we have not cleaned up the air that we should have under European regulations. There are two sides to this. On so many environmental things, I do not believe that our Governments—of whichever party—would have done as much as they have or should without pressure from European legislation.
I declare an interest as chairman of the Rail Freight Group. I am also on the board of United Kingdom Trade and Investment in Europe, which is a small group of companies and people in Brussels whose aim is to facilitate the knowledge of what UK organisations need to work in the European Union generally. Now, of course, they are also trying to get a feel for what the position of the European institutions might be when it comes to negotiations. The first comment from there—which I quote often as I am sure it is right—is that the White Paper, which many noble Lords have discussed this evening, will be seen in Brussels and many other national capitals as the UK Government picking and choosing from a menu and wanting to retain access to the single market while gaining more control over migration. I am sure Angela Merkel will remain unwavering, as she has said on many occasions that Europe’s four freedoms are inseparable.
When it comes to transport, the White Paper helpfully shows on page 53 that 40% of our exports are to the European Union. It is as well to remember that this is not just a one-way export, because over the last 40 years with the single market, freight has gone backwards and forwards many times in the course of its manufacture or distribution. As other noble Lords have said, it generally moves without too much obstruction and it has become extremely efficient in the way that it has been done.
I find it surprising that the White Paper does not mention rail, maritime or ports. It mentions air and road, and the problems might be much the same, but perhaps the solutions are not. If we think that one of the important issues is for our freight operators to be able to operate across Europe, we need to recall that it was only 25 years ago that cabotage was abolished, which was particularly enforced in France and prevented our own hauliers bringing back loads from France to the UK. That was abolished as part of the negotiations on the Channel Tunnel, on which I worked, and is not something we want to go back to.
Turning briefly to railway legislation, as noble Lords have said, it is very important, if we are to use railway traffic across Europe from here, which I hope we will continue to do, that the standards of the legislation are Europe-wide. I recall about five years ago, a manufacturer of some excellent railway wagons in this country wanted the wagons to be able to operate in France. Because they had to be approved by the French standards agency, many things were found wrong with them and they never went there. If they had been manufactured in France, I am convinced there would have been no problem at all. One of the successes of the European work in the last few years has been the creation of the European Railway Agency, which now has the ability to approve rolling stock on a Europe-wide basis. That is incredibly useful for our manufacturers and I hope it will continue.
As other noble Lords have said, the biggest problem will come on the frontiers themselves. I understood from a colleague today that, if there were a 24-hour traffic jam at Dover, it would stretch up the M20, the M2 and the A2, and round the M25 as far as Stansted airport. This is the importance that we must attach to getting the traffic through Dover on time and as freely as possible. The noble Baroness mentioned 390 million filings a year, and she is absolutely right, but how is this to be done? I am told that the French customs authorities already employ three times the number of staff that we do. We get delays. The incredible thing is that the number of units of freight going through Dover has increased by 32% in four years. Depending on what happens to our trade generally with the rest of the European Union, that might not matter very much; it may not go on. The free flow of the documentation—it all seems to go through Dover at the moment, apart from what goes through the Channel Tunnel—is vital for our future trading and prosperity.
The biggest problem—which is not identified in the White Paper, although other noble Lords may have referred to it—is the uncertainty. Companies, operators, exporters, importers and forwarders want to know what is happening, when it will happen and how much it will affect their business. Do they have to change their manufacture or distribution from the UK to France or somewhere else? All the big sheds that have been built around this country for distribution might have to go back; perhaps there will be more in France. I hope the Government will tell us very quickly what is going to go on, what is happening and when, for the sake of our industry.
My Lords, I appreciate the opportunity to speak in the gap on this particular issue. Many will know that, over the years, I have asked many questions about road traffic accidents and so on along the A55 in north Wales. The proposal, if we leave the European Union, that we will have different road regulations leads us to think that the situation is even more worrying and causing more concern than it has in the past.
When we consider the borders of the European Union, we speak of the border between the south and the north of Ireland, a border that does not seem to be causing a great deal of anxiety—and yet, who knows? But there is another border; that of the Irish Sea. It is the border between Holyhead and Haverford West and the Irish ports. The Irish Sea will be a border. How will we tackle that border? We have large vehicles coming from, say, Dover. They will be under different regulations, European regulations, up to Dover; and then from Dover to Holyhead they will be under UK regulations. I suggest that the regulations from Europe have saved many serious accidents along the A55 and other roads affected.
When we consider the overloading of lorries, the length of drivers’ hours, poor roadworthiness and other abuses of regulations, these are all regulated from Europe. VOSA staff have the power to stop a lorry if the driver has exceeded his allotted hours, or the lorry is overloaded or in poor mechanical condition. Many serious accidents have been avoided because of these European regulations. Will the Minister tell the House how these arrangements with the European regulations are working at present and what traffic arrangements will apply if we leave the European Union?
I thank the noble Baroness, Lady Randerson, for securing this debate on an issue that is not necessarily at the top of the list when we consider the implications for this country of leaving the European Union, despite the fact that transport plays a critical role in supporting our economy. For that reason, there needs to be some clarity over what we are seeking to achieve in the forthcoming negotiations on our exit from the European Union in respect of each of the major sectors of our transport industry. The priority should be, at the very least, to avoid any adverse impact on jobs, the economy and living standards. Are those the Government’s priorities or do they consider other objectives more important? If so, what are those different priorities?
Our aviation sector is the largest in Europe and the third largest in the world, supporting some 1 million jobs. Airlines that operate from within the UK are able to rely on the EU single aviation market, which allows any airline owned and controlled by nationals of EU member states to operate freely anywhere within the EU without restrictions on capacity, frequency or pricing. Additionally, EU carriers are able to take advantage of the traffic rights contained in the many air services agreements that the EU has negotiated on behalf of all member states with non-EU countries.
At present, we are a de facto signatory to these agreements as an EU member state. When we leave the EU, and if we do not retain any form of European common aviation area membership, our airlines will need to negotiate new rights, from outside the EU, to operate freely within the EU and to operate transatlantic routes. What are the Government’s objectives in relation to protecting, or not protecting, the existing rights of our airlines over where they can fly under existing European aviation agreements? The Government’s White Paper is not as clear as it might be on this point, referring in paragraph 8.32 to,
“a clear interest for all sides to seek arrangements”.
Between 2011 and 2015, a quarter of all European Investment Bank lending to the United Kingdom was for transport projects. Transport for London, for example, borrowed £1 billion from the EIB to part-finance Crossrail. In addition, the European Commission provides direct funding for transport infrastructure projects. Half the cost of the ground investigation works for phase 1 of the HS2 route between London and the West Midlands was funded from Europe, and potential EU funding formed part of the Government’s case for giving HS2 the go-ahead. Will the Government confirm that they will make up any shortfall in investment in the rail network arising from the loss of direct EU funding or loans from the European Investment Bank? Will the Government also say what they estimate that shortfall in investment is expected to be?
The main European Union legislation as it relates to railways is contained in the three railway packages that have been passed, and in the latest fourth railway package. The individual pieces of legislation which make up these packages are wide-ranging and include prescribing how railways can be structured, financed and run. To what extent do the Government see these packages, and the measures they contain, as relevant and applicable to our rail industry beyond the immediate term, once we have left the European Union? On road haulage, will the Government seek to ensure, as part of the Brexit negotiations, the continuation of the practice that enables British hauliers to carry goods between EU member states? Or do the Government not see this as a priority once we have left the European Union?
Will the Government also seek to ensure that British driving licences will continue to be exchangeable with those of EU member states after we have left the EU, so that UK nationals, for example, who migrate to a country in the EU will not have to take another test in the new country? Or will this issue not be a priority for the Government? More than one-fifth of UK international trade involves transport by ship to and from EU countries, and more than 90% of UK trade in weight is handled by ports. If it is the Government’s expectation that we will no longer be part of the single market and the customs union, what guarantees can the Government give that this will not involve establishing new customs checks on imports and exports, which could cause considerable congestion at UK and mainland European ports and will potentially have an adverse impact on maritime trade and our maritime transport sector, as well as on road, rail and airline freight traffic?
However, it is not just the movement of goods that could be an issue following Brexit. The main transport sectors have been affected by the movement of people across mainland Europe seeking to come to this country. One unauthorised method of trying to reach this country has been through seeking to travel undetected on a heavy goods vehicle. Certainly until recently, some leading figures in the road haulage industry considered that the number coming to this country in this way ran into the tens of thousands per year despite, for example, the checks undertaken, and co-operation given, at ports on the other side of the English Channel.
Can the Minister indicate what the Government’s estimate is of the number of people gaining unauthorised entry to this country per year, and how they intend to address this situation during the negotiations on our withdrawal from the European Union, bearing in mind the current impact on our transport industry despite the checks and co-operation, and the potential impact after we have left the European Union? Will our withdrawal from the European Union lead to the need for more extensive and time-consuming checks at our own ports to control and stop unauthorised entry into this country, or is it envisaged that the existing co-operation and support we receive from adjacent mainland European countries over checking for unauthorised entry to this country will continue after we have left the European Union?
If that existing co-operation and support is less likely to be offered when we break away from, and cease to be part of, the European Union, what do the Government consider could be the consequences for border checks at our points of entry and for those sections of the road haulage, rail and maritime transport industries in this country that are involved in the international carriage of goods and passengers?
There are other potential impacts of Brexit on the transport industry in this country that I have not touched on, including impacts in the fields of the environment and health and safety. I hope, however, that the Minister will be able to provide some answers to the questions I and other noble Lords have raised in this debate about the potential impact of Brexit, and the Government’s objectives and priorities for the different sectors of our transport industry in the forthcoming negotiations on our withdrawal from the European Union.
My Lords, I join other noble Lords in thanking the noble Baroness, Lady Randerson, for this opportunity to discuss the important issue of the UK’s exit from the European Union and related transport matters. I am also grateful for the chance to respond to the points raised during this debate, and if there are questions that I am unable to answer within the time limits I shall write to noble Lords about them.
First I will address the general points raised. It is the Government’s very strong view that, as my right honourable friend the Prime Minister herself articulated in her speech of 17 January, we should be “a truly global Britain”. What does this mean? As she explained, it means a “stronger, fairer, more united” country, one that is outward-looking, open for business and a magnet for international talent. It will be,
“an ambitious country that goes out into the world to build relationships with old friends and new allies alike”.
The noble Lord, Lord Whitty, made the role of the single market quite clear. He is right: as the Prime Minister has made clear, Britain will not be a member of the single market. As EU leaders have themselves made clear—it was also a point made by two noble Lords during the debate—staying in the single market would mean accepting the four freedoms and a role for the European Court of Justice. In the Prime Minister’s words:
“It would to all intents and purposes mean not leaving the EU at all”.
The noble Lord, Lord Rosser, in the various questions he raised, asked about the priorities, and I agree with him that transport is vital in realising this vision of a global Britain. These principles will inform our approach for transport in the negotiations ahead.
There have been a number of points about how different modes of transport will be affected by Brexit. As we all acknowledge, transport providers move huge numbers of passengers by air, road, rail and sea, and our logistics providers ensure that vital goods are moved efficiently. Let me be clear: we want them to continue doing that with minimum hindrance. Of course, I acknowledge that when we leave the European Union our relationship will be different. As the Prime Minister has explained, when we leave the EU we will leave the internal market. Our focus as we discuss our future relationship with our EU partners will therefore be on finding sensible ways to allow transport operations to continue. I am sure that noble Lords will accept that it is too soon to say precisely what those arrangements will look like, but I believe that all citizens and businesses in Europe have a shared interest in finding arrangements that work for us here in the United Kingdom and for the remaining members of the European Union.
I will address the point raised by the noble Lord, Lord Berkeley, in his contribution on the White Paper and its specifics on different modes of transport. He acknowledged that air and road haulage are mentioned, but he should not infer from that that other modes have been forgotten, namely sea and rail transport. We are making thorough preparations for negotiations covering all modes. As I have said to noble Lords during Questions, we continue to meet practitioners and industry representatives across all modes of transport to ensure that their priorities are reflected in the negotiations with our European partners.
If I may address this issue sector by sector, I will start with my own portfolio as Minister for Aviation. The UK aviation industry is of course world leading. As noble Lords have acknowledged, our airports service the third-largest aviation market in the world and the largest in Europe. Demand for flights continues to grow and UK airlines have seized opportunities globally, including those offered through European aviation markets. The Prime Minister made it clear, as did last week’s White Paper, that we will seek new strategic partnerships with the European Union, including wide-reaching, bold and ambitious free trade agreements. Aviation should be a part of that, so that citizens in the UK and the EU can continue to access air travel as they do now.
I assure your Lordships that the Government are working closely with the aviation industry to ensure we understand its priorities and needs as we start discussions with the EU. I have attended very constructive, pragmatic and positive meetings with representatives from across the aviation industry, along with my right honourable friend the Secretary of State for Exiting the European Union, David Davis. We stressed the point then that our air connections with Europe are important, but we also have an opportunity to widen our horizons. Leaving the European Union gives us more freedom to make our own aviation agreements with countries beyond Europe. Last year, after my appointment as Aviation Minister, I signed a deal with China that will more than double the number of flights operated between our two countries, boosting trade and tourism.
The noble Baroness, Lady Randerson, talked within the aviation context about the importance of the European Aviation Safety Agency, or EASA. As she will be aware, the UK has played a pivotal and active role in developing air safety standards. Our expertise is valued and recognised. We therefore hope and expect that all sides will value our continued participation—a sentiment which my noble friend Lord Patten reflected in his contribution.
Britain is open for business and open to the rest of the world. The connectivity provided by aviation is essential to making this happen. Whether it is new agreements such as that with China, our support for a third runway at Heathrow or the new aviation strategy, we will do what is necessary to support our future prosperity and growth. I assure the noble Lord, Lord Bradshaw, that this includes ensuring the prioritising and protection of jobs. He mentioned the example of Airbus, a corporation which we continue to work with not just in the UK but across Europe to ensure its presence on the global market.
If I may turn to road haulage, I mentioned the importance of the logistics industry in my opening comments. We are of course very much dependent on road hauliers. The noble Lord, Lord Berkeley, makes sure that we are fully aware of the importance of road haulage across many areas when we discuss it in this House. It should not be understated as, without those hauliers, our shops would be empty and our industry would grind to a halt. The logistics industry plays an important role by doing a first-class job in transporting goods to where they need to go.
The vast majority of lorries on our roads undertake domestic deliveries and never leave the country, yet a number make international journeys. Over 80% of these lorries are owned by European firms, not UK ones. Both the UK and the EU will want sensible arrangements in the future that allow goods to flow freely from and to the UK. I also want to ensure that UK hauliers have fair opportunities to win international business. I assure your Lordships that we are working hard on this objective as we prepare for negotiations.
The noble Lord, Lord Bradshaw, raised the important issue of lorries and strict controls on road safety, as did the noble Lord, Lord Roberts, on the particular issue that he raised about the A55. I assure both noble Lords and the House that, as the Government have stated before, the great repeal Bill will act as the basis for ensuring that all EU legislation is transposed into UK legislation. The transition will ensure that those kinds of safety regulations are sustained and maintained.
The maritime sector has been operating successfully for many centuries, as many noble Lords noted, trading freely between ports across the world long before the European Union came into being. There is no reason why that will not continue after we leave. The UK has always been a leading maritime nation, and we will continue to build on this, taking a higher profile in the International Maritime Organization. Of course, as noble Lords will know, that is based in London. We will be facilitating international maritime trade, helping attract more maritime business to the UK and promoting the UK flag. The Government and industry have been working together to identify a shared goal of continued growth over the coming year and beyond. Given our exit from the EU, we will drive forward this work through the maritime growth study.
I turn briefly to railways. The creation of the EU internal market for rail services has been slower than for other modes, but the past 20 years have seen the opening up of international services. The British railway network is essentially a domestic network, so the effects of leaving the EU will be limited. However, we of course have one international connection with continental Europe—the Channel Tunnel. Let us not forget the Belfast-to-Dublin link too. We will focus on ensuring that these services can continue as now. I say to the noble Baroness, Lady Randerson, that we will ensure that, in everyone’s interest.
Across the transport sector we are determined to agree the best arrangements for Britain. The Government will continue to listen to our transport industries as their views develop. The noble Lord, Lord Bradshaw, raised the issue of rail franchising. We will not want to limit EU bidders in bidding for franchises. That will be part of the message to ensure that we are truly open for business.
We have world-class expertise in this country across many sectors, as my noble friend Lord Patten noted—in the automotive sector, in aerospace, in logistics, in transport engineering and much more. We must be confident in offering this to the world. We have every reason to be confident. Anyone who has seen the work on Crossrail—and I am proud to be the Minister for Crossrail—in this city will know that this country is capable of world-class engineering. It is recognised internationally. Country delegations visiting the UK want to see what Crossrail is all about.
Our departure from the EU is an unprecedented opportunity to shape our future. We must take advantage of all the opportunities it offers. We will get out into the world and do business right across the globe. Yes, I say to the noble Baroness, it is a bold and ambitious vision. The message we take to the world is this: the UK remains open for business. We are the same positive, pragmatic, outward-looking, globally minded nation we always were. We will continue to strengthen our role and our international partnerships on the global stage.
Digital Economy Bill
Committee (3rd Day) (Continued)
86: Clause 33, page 32, line 31, leave out from “behaviour”” to end of line 33 and insert “means conduct that—
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
My Lords, this group consists of mainly technical amendments to make sure the Bill works in the way it is meant to. Although they are technical, they are important. They fall into four broad subject areas: whistleblowing and journalistic freedoms; the meaning of “anti-social behaviour”; references to the Investigatory Powers Act; and the description and powers of devolved authorities.
In relation to whistleblowing and journalistic freedom, the first series of amendments relates to the new criminal sanctions for unlawful disclosure of personal information disclosed under the powers. Concerns were raised that the clauses as drafted could criminalise disclosures made by whistleblowers and journalists making disclosures in the public interest. This was never the Government’s intention. These amendments make sure that disclosures made by whistleblowers and journalists will not be subject to criminal sanctions.
There is a distinction here in terms of how the amendments address HMRC information and non-HMRC information. In respect of non-HMRC information, the amendments introduce additional exemptions to the general prohibition on further disclosure to cover “protected disclosures” under the Employment Rights Act 1996, which will protect whistleblowers pursuing the proper channels for disclosure. Disclosures made for the purposes of journalism are also removed from the criminal sanctions, provided that the disclosure is in the public interest.
There are already separate provisions in each of these chapters for personal information disclosed by HMRC. These amendments make clear that the criminal sanction for unlawful disclosure applies only to an official who wrongfully discloses HMRC information outside the permitted scope of the information gateways in Part 5 of the Bill at Chapters 1, 3, 4 and 5. This brings the provision into line with HMRC’s statutory regime in the Commissioners for Revenue and Customs Act 2005 and its other statutory information gateways.
I am conscious that the noble Lords, Lord Stevenson of Balmacara and Lord Collins of Highbury, have two amendments that relate to this section, Amendments 138A and 146A. I suggest that I reply to those amendments separately after hearing from noble Lords.
The second series of amendments concerns the definition of anti-social behaviour. Chapters 1, 3, 4 and 5 of Part 5 all contain a general rule restricting the use of information disclosed under these powers to the particular purpose for which it was shared and a general prohibition on further disclosure. There are a number of exceptions to these rules. A previous amendment added an exception enabling disclosures made for the prevention of anti-social behaviour. The definition as currently drafted needs to be adjusted to work in Scotland and Northern Ireland. These amendments provide a revised definition that works across the UK.
In relation to reflecting the enactment of the Regulation of Investigatory Powers Act, the third series of amendments is also minor and technical in nature. The public service delivery, debt, fraud, research and statistics clauses provide that information cannot be disclosed under these powers if that would contravene the Data Protection Act 1998 or if it is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000—commonly known in your Lordships’ House as RIPA. The Investigatory Powers Act 2016 received Royal Assent last December and will replace RIPA. These amendments replace the references to RIPA with references to the equivalent provisions in the IPA, with a provision for RIPA until that Act is fully in force.
Regarding devolved public authorities, the final series of amendments facilitates information sharing across the United Kingdom, including by and with public authorities in devolved Administrations. The amendments broadly fall into two categories, which I will take in turn. The first category provides personal information disclosed by Revenue Scotland and the Welsh Revenue Authority with equivalent protection to that given by Clause 60 to personal information disclosed by HMRC. In order to protect information relating to taxpayers, these two new clauses provide, as is the case for personal information disclosed by HMRC, that persons who are processing Revenue Scotland or Welsh Revenue Authority information cannot further disclose that information without the consent of Revenue Scotland or the Welsh Revenue Authority, as applicable. Secondly, reflecting the Government’s amendments to Clause 60, the amendments provide that persons who receive Revenue Scotland or Welsh Revenue Authority information under Clause 57(1) also cannot further disclose that information with the consent of Revenue Scotland or the Welsh Revenue Authority, as applicable.
Amendments 171 and 172 are consequential amendments to those tabled separately in respect of preventing unlawful disclosures under the research power. The first of these amendments is necessary to ensure that the separate safeguards regime for HMRC that has been maintained throughout Part 5 also applies to the criminal offence as amended. The second ensures that the separate arrangements for HMRC will be mirrored in respect of Revenue Scotland and the Welsh Revenue Authority.
The second category ensures that the definition of “Welsh body” in Part 5 is consistent with the definition of “devolved Welsh authority”, as will be enacted by the Wales Bill. The amendments will ensure that no devolved Welsh authority will be inadvertently excluded from the relevant Part 5 powers. The amendments also provide for Welsh Ministers to commence the provisions which relate to the disclosure of information by the Welsh Revenue Authority. This reflects the fact that the Welsh Revenue Authority is not yet operational. I beg to move.
My Lords, I thank the Minister for a very well-read response to the questions we all had about these technical amendments, although some of them were not quite technical of course. In terms of the four categories, I listened to three very carefully, and I will read what she said in Hansard, but we have no further comments to make on them at this stage.
She touched on the issue in relation to which we have two amendments down. I am grateful to the Government for responding so quickly to the discussion in another place on this issue, because as originally drafted, the Bill would have criminalised disclosures by whistleblowers and investigative journalists revealing matters of legitimate public interest. The point was picked up and discussed at some length, and had attracted interest from a wide range of people such as Sir Peter Bottomley and Helen Goodman, who raised it. The Minister in another place undertook to take it back, and we have now had the amendments put forward.
Those of your Lordships who have bothered to read the amendments in Clauses 50 and 51 will recognise that the wording is very similar in both cases. The difference, narrowly put, is that the amendment that we were advised would take the trick in this area included not just print journalism but also broadcast journalism. I am not certain whether that is necessary or not, but the Government have come forward with a slightly narrower point of view. I think we agree the aim, and it may just be a question of the correct wording, so unless there is any particular issue, we can do this either by correspondence or perhaps in a quick meeting, and I do not think there is anything on this point that need detain the Committee further. We are agreed and are delighted that the Government are making the move. It is just a question of trying to use what time we have to make sure that we have absolutely nailed it down completely.
Having said that, what has proved difficult in other pieces of legislation is how one defines whistleblowers. There is no attempt to do that here; the test is simply whether or not what has been disclosed was in the public interest. Again, there might just be something around that where we might look at other discussions and come back on it. But for the moment, I will leave it.
I thank the noble Lord for that. The opposition amendment makes specific reference to broadcast transmission when the government amendment on this topic does not. However, the word “publication” in our view can be construed sufficiently broadly to cover broadcast media. Section 32(6) of the Data Protection Act 1998 provides that:
“For the purposes of this Act ‘publish’, in relation to journalistic … material, means make available to the public or any section of the public”.
The ICO guidance on this indicates that publication for these purposes would therefore cover broadcast. As a result these additional changes are not necessary.
It is quite an interesting point. The world has moved on since those original drafts, and we have to think a bit more carefully about what happens on YouTube and whether disclosure on social media will be covered by this. I do not dissent from what is being said but would just like to be certain that we have used this opportunity, which may not come again, to make sure we have this nailed.
I thank the noble Lord for what he has said and absolutely understand where he is coming from.
Amendment 86 agreed.
86A: Clause 33, page 32, line 35, leave out “or 31” and insert “, 31 or (Disclosure of information to water and sewerage undertakers)”
Amendment 86A agreed.
Amendment 87 not moved.
Amendment 88 had been withdrawn from the Marshalled List.
88A: Clause 33, page 32, line 44, at end insert “or (Disclosure of information to water and sewerage undertakers)”
Amendment 88A agreed.
Amendment 89 not moved.
Amendments 89A to 91B
89A: Clause 33, page 33, line 7, leave out “section 30, 31 or 32” and insert “any of sections 30 to (Disclosure of information by water and sewerage undertakers)”
89B: Clause 33, page 33, line 12, leave out “section 30, 31 or 32” and insert “sections 30 to (Disclosure of information by water and sewerage undertakers)”
90: Clause 33, page 33, line 15, leave out from “by” to end of line 16 and insert “any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.”
91: Clause 33, page 33, line 16, at end insert—
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (8)(b) has effect as if it included a reference to that Part.”
91A: Clause 33, page 33, line 17, leave out “Section 30, 31 or 32 does” and insert “Sections 30 to (Disclosure of information by water and sewerage undertakers) do”
91B: Clause 33, page 33, line 18, leave out “that section” and insert “those sections”
Amendments 89A to 91B agreed.
Amendments 92 and 93 not moved.
Clause 33, as amended, agreed.
Clause 34: Confidentiality of personal information
93A: Clause 34, page 33, line 20, leave out “section 30, 31 or 32” and insert “any of sections 30 to (Disclosure of information by water and sewerage undertakers)”
Amendment 93A agreed.
Amendment 94 not moved.
94A: Clause 34, page 33, line 25, leave out “section 30, 31 or 32” and insert “any of sections 30 to (Disclosure of information by water and sewerage undertakers)”
Amendment 94A agreed.
Amendment 95 and 96 not moved.
97: Clause 34, page 33, line 35, at end insert—
“( ) which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),( ) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,”
Amendment 97 agreed.
Amendment 98 not moved.
99: Clause 34, page 33, line 43, leave out from “behaviour”” to end of line 45 and insert “means conduct that—
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
Amendment 99 agreed.
Amendment 100 not moved.
100A: Clause 34, page 34, line 22, leave out “or 31” and insert “, 31 or (Disclosure of information to water and sewerage undertakers)”
Amendment 100A agreed.
Clause 34, as amended, agreed.
Clause 35: Information disclosed by the Revenue and Customs
Amendments 100B to 102
100B: Clause 35, page 34, line 25, leave out “or 31” and insert “, 31 or (Disclosure of information to water and sewerage undertakers)”
101: Clause 35, page 34, line 25, leave out “(“P”)”
102: Clause 35, page 34, leave out lines 26 and 27 and insert “by that person”
Amendments 100B to 102 agreed.
Clause 35, as amended, agreed.
Amendments 103 and 104 not moved.
105: After Clause 35, insert the following new Clause—
(1) The Companies Act 2006 is amended as follows.(2) After section 416 insert—“416A Contents of directors’ report: cyber-security(1) The directors of a company must prepare a cyber-security report for each financial year setting out measures the company is taking to address cyber-security risk.(2) This report should include—(a) cyber-security audits undertaken by the company,(b) details of breaches notifiable under the General Data Protection Regulation,(c) measures in place to ensure the confidentiality and integrity of data processing systems, and(d) processes in place to test and evaluate data protection measures and information technology systems.(3) Cyber-security audits must be undertaken by organisations accredited by the Secretary of State.(4) The cyber-security report must be approved by the board of directors and signed on behalf of the board by a director or the secretary of the company.(5) If a report is approved that does not comply with the requirements of this section, the directors commit an offence.(6) A person guilty of an offence under this section is liable on summary conviction to a fine.””
My Lords, I draw noble Lords’ attention to my interests in the register, particularly to the fact that I am chairman of the Information Assurance Advisory Council, chair of the advisory board of Thales UK and a member of the advisory board of IRM, among other cyber-interested companies.
This Bill is about the digital economy, but it contains very little mention of security. Yet cybersecurity is essential, both to the proper functioning of the internet, on which we so rely, and to the trust we place in the digital economy. Global research has been done by the Information Systems Audit and Control Association of the United States of America, and I am indebted to it for its help on these amendments. That research has shown that two-thirds of chief executives of major corporations do not have confidence in their workforces to deal with anything beyond the simplest of data breaches. We all know that there has been no shortage of high-profile data breaches on both sides of the Atlantic over the last 12 months. That has damaged the economic performance of companies and their stock price, and has significantly reduced consumer and business confidence.
I congratulate the Government on making real progress in this area. They have introduced Cyber Essentials, which has been helpful in boosting implementation of cyber controls. I suggest, though, that the uptake of Cyber Essentials has been disappointing. It is not always a requirement that companies observe even the relatively low level of assurance that Cyber Essentials suggests. I use the word “suggests” because of course it is not compulsory. Equally, the new cybersecurity strategy has brought £1.9 billion into developing a capability across the whole of society to address everything from the biggest companies to individual citizens. The Minister of State for Digital and Culture recently indicated in another place that the Government intend to implement the General Data Protection Regulation in full. That is a good thing, but I very much doubt that businesses—and probably even government departments—are anywhere near ready for the GDPR, nor as far along as they really should be by this stage.
In view of the existential nature of our reliance on cyber nowadays, I therefore suggest that we need to go further. Consumers, investors, executives and government alike all need confidence that businesses are taking appropriate steps to safeguard their data and their IT systems—and those of their supply chains as well—from malicious activity. So, I have decided to be helpful. I propose these amendments, which introduce the notion of a cyber audit. They are probing amendments: their wording creates obligations that are perhaps more imperative than I would like to see, because I believe we should start with encouragement rather than requirement.
Everyone is now accepting of, and accustomed to, the notion of external independent financial audits, which have become the norm throughout the world. I believe that a similar approach now needs to be followed in relation to cybersecurity. My suggestion is that we should undertake cyber audits—perhaps as part of financial audits, or perhaps separately; it does not really matter. Those audits could be based on standards that could be evolved by industry, rather than by government, because government legislation never manages to keep up with the astonishing pace of technological change. These cyber audits should include external stress tests of a company’s cybersecurity in areas such as email, and possibly even in relation to a company’s products.
I think the entire House knows that, in 2013, the Target chain of 1,800 stores in the United States of America was hacked by people who broke into its air conditioning system, which was supplied by a third party. Everybody knows about last autumn’s botnet attack by rogue webcams. So if we did this and went for cyber audits, we could gradually begin to address the issue of cybersecurity, so that over time no longer would it create quite the existential threat that it does now. It would need to start on a voluntary basis and be driven by business, not by government, but, in time, I believe it would spread internationally, so that the United Kingdom would not be disadvantaged in competitive terms. It would also ensure that the United Kingdom was in the vanguard of global best practice. I beg to move.
I expected more people to be inspired by the contribution of the noble Lord, Lord Arbuthnot, and to join in the debate. I am rising to give my support to Amendments 105 and 106 and to thank the noble Lords, Lord Arbuthnot and Lord Carlile, for highlighting this simple failure in company policy, which can lead to much bigger dangers and threats. As the noble Lord said, it can have commercial implications, personal privacy implications and, ultimately, national security implications. While we all have a part to play setting the highest standards of data protection, it is true that all too often we put the focus on national Governments without recognising the equal responsibilities of the private sector and private companies to play their part. This is particularly vital, given the number of private sector organisations which access data for government contract work. However, it also extends into other realms of commercial activity, such as commercial personal profiling, in which companies build vast data banks of our shopping habits, our friends, our movements—literally, where we are moving around in cities and towns—and our vulnerabilities, all of which have huge value both in their own hands and in the hands of cyber-thieves. These are issues which we have also flagged up in other amendments tabled today, and we have tried to build in more safeguards. My noble friend Lord Collins has said that we believe that individuals should have the right to know what information is being held about them, for example. They should have the right to be able to withdraw permission for the data to be held, and they should have the right to know immediately if a data breach has taken place.
We welcome the amendments, which would begin to address some of our concerns, by putting a straightforward obligation on companies to prepare a cybersecurity report each year, detailing the measures being taken to ensure that data are being kept safely. It is a simple ask, and it should not really be necessary, but the all too frequent security breaches taking place underline why a legal requirement has to be imposed. An Institute of Directors report last year showed that companies tend to keep quiet when there has been a security breach. As a result, there are no accurate figures on the extent of this crime, or the extent to which companies are being held to ransom. A survey of business leaders found that only half had a formal strategy in place to protect themselves and just 20% held insurance against an attack. Yet we also know that companies are also losing confidence in their encryption systems, their staff capabilities and awareness and the ability of their software to withstand a deliberate assault.
This is a huge issue. Of course, we have a vested interest in sorting this out, as often it is our personal data which are being stolen. But on a wider sphere it impacts on everything from company finances to sensitive market data and research and development. So we very much welcome the initiative set out in these amendments, and agree with the noble Lord, Lord Arbuthnot, that they are helpful. In itself, they will not completely solve the problem, but they represent another small step in getting companies to act responsibly in managing the data that they hold.
My Lords, Part 5 of the Bill requires public authorities and specified persons to specify and meet specific legislative conditions and controls on the handling of personal information. As I have said on a number of occasions this evening, these provisions will be underpinned by codes of practice setting out data security requirements, including cybersecurity. A body that fails to meet these could be prevented from using the data-sharing powers. That is the context in which I turn to Amendments 105 and 106.
Amendment 105 would require all but the smallest of companies to conduct audits on their cybersecurity and to report annually on it and their data protection measures. Clearly, the Government recognise that effective cybersecurity risk management is important to the success of the economy and, indeed, to ensuring the safety and integrity of private citizens’ data. The Government conducted the Cyber Security Regulation and Incentives Review in 2016 to consider whether we need additional regulation or incentives to boost cyber risk management in the wider economy and it showed strong justification for regulation to secure personal data.
The Government will seek to improve cyber risk management through our implementation of the EU general data protection regulation in May 2018. Its requirement to report breaches to the Information Commissioner and individuals affected, and the fines that can be issued under it, will represent a significant improvement. These will be supplemented by a number of measures to more clearly link data protection with cybersecurity, including through closer working of the Information Commissioner and the National Cyber Security Centre. However, we will not seek to pursue further general cybersecurity legislation for the wider economy as would be required by Amendment 105.
We believe that mandating the inclusion of cyber risk information in annual reports, or the introduction of legal provisions for cyber audit, is unlikely to be an effective way of encouraging large-scale change in cyber risk management. Instead, the National Cyber Security Centre plans to work with stakeholders to develop guidance for investors. The long-term aim of the organisation is to include cybersecurity in the guidance it provides to businesses on the kind of information it wants to see in an annual report, and in the reports it provides to investors each year on every listed company.
Amendment 106 is very broad in its aims and, as such, could have unintended consequences for the diverse range of grants that the Government fund each year. The supporting audit and insurance regime would be costly and challenging to enforce given the diversity of grant recipients, including those from voluntary and research communities. Furthermore, this amendment is unnecessary as many of these checks are in place as a matter of routine. The level of cybersecurity risk in grants will continue to be monitored and consideration given to how recently launched grant standards could be used to strengthen guidance in this area. This provides a far more flexible and proportionate solution than legislation.
With respect to subsection (2) of the proposed new clause in Amendment 106, the Government are already taking tangible steps to reduce the level of cybersecurity risk in their supply chain. As of October 2014, suppliers of central government contracts that involve the handling of personal data or the supply of IT products and services must demonstrate they have met the technical requirements set out as part of either the government-owned Cyber Essentials scheme or a suitable equivalent. The scheme was developed jointly with GCHQ and industry to support organisations of all sizes and across all sectors in getting a good, basic level of online security in place. In response to my noble friend Lord Arbuthnot I would observe that, as of the end of December 2016, nearly 5,500 certificates had been issued under the scheme, and we have a strategy in place to significantly increase the adoption of the scheme over the coming year. With that explanation, I hope my noble friend will withdraw his amendment.