House of Lords
Monday 30 October 2017
Prayers—read by the Lord Archbishop of Canterbury.
Retirement of a Member: Baroness Paisley of St George's
My Lords, I should like to notify the House of the retirement, with effect from today, of the noble Baroness, Lady Paisley of St George’s, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Baroness for her much-valued service to the House.
My Lords, it is too early to predict the impact of flu this winter. As part of the Government’s preparedness, every trust has developed plans for the coming winter season. The seasonal flu vaccination has been offered to those at particular risk of flu, and to all health and social care workers. A nasal spray vaccine will be offered to all children aged two to eight years old to help to protect them and their families.
I thank the Minister for his response. Last week’s Healthwatch report showed an alarming increase in the number of hospital readmissions, which have risen by nearly a quarter in four years. The survey also showed a rise of 29% of people readmitted to hospital as emergencies within 24 hours. Does not this raise huge concerns about patients being discharged unsafely and before they are medically fit in order to meet the Government’s empty beds targets, not to mention the trauma and upset caused to the patients themselves and their carers and families? Do the targets take account of readmissions? What additional funding and contingency plans are in place across NHS trusts and local authorities, if there just are not enough beds to cope with the winter flu crisis? Is not the Government’s flu preparedness in urgent need of review?
The NHS has never been better prepared for winter and, indeed, for flu. There are something like 21,000 people eligible for free flu jabs this year, including, for the first time, care workers in the independent and voluntary sector. So that is good progress. Of course, we do not know how exactly it will play out.
On the point about readmission, the head of Healthwatch said that the data raises some big questions—and we would agree with that. Some work needs to be done on the quality of the data, and NHS Digital has been asked to look at it. One issue is having the right care settings for patients to be discharged to, which is why I am sure the noble Baroness will welcome the data published last week showing a £500 million-plus increase in health and social care spending on precisely that kind of provision.
My Lords, a few weeks ago, I read an excellent letter by a doctor in a newspaper which said that, as well as having the flu jab to protect ourselves, we have a responsibility to those around us who are more vulnerable. I was shocked last year, when I went to the excellent drop-in centre that we have every year, to discover that one of the most vulnerable groups to influenza is pregnant women. Would my noble friend agree that that message of responsibility to others is a very powerful one, and one that should make us all stop, think and then be immunised?
My noble friend is absolutely right. I fear that the Westminster flu clinic had run out of jabs when I went, unsuccessfully, to get mine, but I did have one last week. Her point was about super-spreaders and this is one of the reasons why young children aged two to eight—who are most likely to live in families with pregnant women—are now getting the nasal spray at nursery and in school. This is precisely to protect the families of those who are most vulnerable.
My Lords, I am sure that the possibility of people getting vaccinations in places such as Sainsbury’s and Boots while they are doing the shopping is a very good thing. I talked about this to a doctor friend at the weekend and was told that the pharmacists in those places get paid more for these vaccinations than doctors in their surgeries. Can the Minister confirm whether this is the case? If it is, it is a bit unfair to the NHS people.
I was not aware of that particular fact, but I will look at the issue of the tariffs. Vaccinations are available in a range of settings: nurses, schools, shopping centres, even the Houses of Parliament—and, of course, community pharmacies, which have a critical role to play as one part of the strategy. Something like a million people have already been vaccinated in them so far this year. I will write to the noble Lord with the specifics on the tariff.
My Lords, the Minister has, quite rightly, said that community pharmacies are a really important place to seek one’s flu jab. However, the owner of Lloyds Pharmacy, Celesio UK, has announced that nearly 200 of its local chemist’s shops will cease trading. What assessment have the Government made of the potential clinical impact of this decision? What pressures will follow next winter as a result?
I agree with the noble Baroness about the role of community pharmacy. It is worth bearing in mind that some 88% of people are within a 20-minute walk of a community pharmacy, which is accessible for the vast majority. There are also 20% more pharmacies than there were 12 or 13 years ago. Pharmacies have a critical role to play and are there in the community, but companies come in and out all the time.
My Lords, I talked to a very senior NHS consultant this morning. To my absolute amazement, he said that the latest research showed that compulsory flu jabs for NHS staff provide no significant improvement at all in patient health. This is rather striking and a bit unexpected. Does the Minister have any different research evidence?
My Lords, the World Health Organization recommends what strain of vaccine should be developed, nine months to a year ahead. This happened before the Australian epidemic which affected the elderly and killed many people. Will the Minister confirm that the vaccine which has been developed here in the UK is both effective and relevant and that the young and elderly people do need to access it?
My noble friend is absolutely right. Back in September, Simon Stevens, the head of the NHS, warned about the impact of the flu epidemic in Australia and New Zealand. The feedback on that was that the particularly vulnerable groups were the over-80s and five to nine year-olds. We have talked about helping younger children through school-based immunisation. We also have the highest uptake in Europe of over-65s getting flu jabs. There is clearly more to do because around one-third of people still do not.
My Lords, will the Minister reconsider his statement, in answer to the Question, that the NHS has never been better ready for a flu outbreak? The problem with viral infections, like pandemics, is that they are completely unpredictable and often hit in a way that we never expect. They remain one of the biggest single threats to humanity. I hope he understands that this unpredictability is a very real issue with all these infections, including influenza, as history has shown us.
The noble Lord is, of course, quite right: we cannot know what will hit us. However, we can prepare in advance as much as possible. That was the sense I meant to convey—namely, that a huge amount of preparedness has gone on for not just flu but the winter. That work started in the summer—earlier this year than ever before. The flu vaccination on offer covers the strains that Public Health England thinks are most likely to come, but, of course, we cannot predict exactly what will happen.
Public Parks: Funding
My Lords, the Government recognise the value of parks in providing vibrant and inclusive locations for local communities to enjoy. We welcome the Select Committee’s inquiry on parks and have established a parks action group across Whitehall departments and with experts from across the parks sector. We have also committed £500,000 to support the group’s work on building the sustainability of parks.
I thank the Minister for that reply. Going right back to the Victorians, it was recognised that public parks benefit our physical and mental health as well as the environment and biodiversity. Is the Minister therefore concerned by the deterioration of our parks? There have been reports of huge cuts to the maintenance budgets with the loss of trees, shrubs and flowers, which are often replaced with bare soil, and, along with that, increased graffiti and vandalism. Does he agree that the rise of privatised open space in our cities is not the answer to that? What we need is green open space available to everyone. Therefore, I urge the Government to take a lead on reinstating our parks as the national pride that they once were, rather than passing the problem down to local authorities and voluntary organisations, which are doing their bit but simply do not have the resources available to reverse that decline.
My Lords, I am afraid I do not recognise that picture of doom and gloom painted by the noble Baroness opposite. Indeed, the Select Committee report recognised the valuable work done by local authorities over time. In addition, there are the royal parks, supported by DCMS, and national parks. The noble Baroness is right about these having thrived since Victorian times, but they are still thriving. An immense amount of good work is going on. We have established a parks action group, which is looking at this, and have accepted the majority of the Select Committee’s recommendations, as the noble Baroness will know.
My Lords, I hope that many of your Lordships would agree that public parks have been important for centuries, not only for human enjoyment and wildlife protection but as a vital filter for pollution. With the present awareness of escalating mental health and stress problems, never have these precious green havens been more important. Does the Minister agree that they should be properly cared for and financed? Would the Government support a countrywide volunteering scheme, perhaps teaming up with Country Life magazine, the best campaigner for serious like causes?
My Lords, I know that my noble friend has taken an interest in parks for a considerable time. The parks action group, about which I spoke, is doing work across government. We recognise the value of this work across government so the group includes representatives from, for example, the Department of Health and the Home Office and other organisations such as the National Trust. The LGA is represented, as is Keep Britain Tidy. This work is important for all the community and contributes massively to our national well-being. We look forward to the work of the parks action group.
My Lords, the noble Earl raises an important issue. The parks action group will look at all these issues at its first meeting in November. We expect it to consider whether it will do that work and then draw conclusions from it. I look forward to seeing how the group’s first meeting goes. We will, of course, ensure that the House is kept in the picture on how that is progressing.
My Lords, Natural England estimates that the NHS could save £1 billion a year in mental and physical health costs if every household had equal access to parks and green spaces. Is the cross-Whitehall group specifically looking at this saving, as well as the potential pooling of budgets, where one department saves and another can benefit, to look at equal access to parks and to bring about better health and well-being?
The noble Lord raises an interesting and germane point about the importance of the parks sector to the whole community, not just in economic terms. We do not want to prejudge the work that will be done at the first meeting of the parks action group, but it is a broad-based committee that will look at this. As I say, we will ensure that the House is updated on how that work is going forward. However, it is clearly an interesting and important piece of work.
My Lords, I hope that both noble Baronesses will agree to give way appropriately. We have time to hear both if they are brief.
My Lords, my question relates to sport, which we do not talk enough about in this House. Public parks have been incredibly important in the provision of sporting facilities, from tennis courts to football pitches. They are indeed the grass roots of sport. Why is there such a reduction in courts and pitches? It is important that this is halted. What action are the Government taking to provide more facilities, not fewer?
Right next door to this House, Victoria Tower Gardens—a beautiful piece of parkland—is threatened with being overrun by the Holocaust memorial. The Holocaust memorial is a great cause and very worthy, but it must be more sensible for it to be sited at the Imperial War Museum, which desperately wants it. Otherwise, we will lose a rare piece of parkland, slap bang in the middle of London.
My Lords, noble Lords around the House will have differing views on this. First, we are not losing parkland but gaining an important monument in central London, which I think is central to the thoughts of all parties and people in the country. I am sure that there will be ample opportunity to discuss this, but I am also sure that the House will want to welcome the winning design and be behind this important national monument.
Benefit Rate Freeze
My Lords, we currently provide people below state pension age with over £95 billion a year in welfare support. The benefit freeze is part of a package of welfare reforms that is designed to ensure that the system remains sustainable and to incentivise claimants into work. These reforms are working, and we have not had a lower unemployment rate since the 1970s. The changes we have made to the benefits system allow us to target the support we provide to those who need it most.
I take it from that reply that the Government have not done an assessment. However, independent assessments of the four-year freeze indicate losses of over £800 a year for many two-child families in or out of work, and significantly worse poverty—especially child poverty—inequality and homelessness. My question to the Minister is simple. Do the Government care about the harmful impact of this policy on people who already have so little—yes or no?
My Lords, we do care, and that is why we are incentivising people into work. All our research shows that workless families are most likely to drive children into poverty. In terms of our reforms, we introduced 15 hours of free childcare for working families. From September this year, we have doubled that from 15 to 30 hours a week in England, worth on average up to £5,000 a child. Since April 2016, the universal credit childcare element has covered up to 85% of eligible childcare costs compared with 70% with working tax credits.
My Lords, these benefit freezes are not reforms; they are simply a cut. Benefits used to rise in line with inflation every year until the Government decided that in future they would not. They have been frozen in cash terms, so all that happens is that people have the same amount of money to pay for food and rent in 2020 as they did in 2015 while inflation goes up. That simply cannot be right. These are people who are too sick to work, who have small children or who are in work but cannot earn enough to pay for the running costs of their household. Therefore, I ask the Minister again: do the Government care about the poorest in our society? If they do, what are they going to do about it, because fine words butter no parsnips?
My Lords, as I have said to noble Lords opposite, we do care, but we are absolutely clear that work is the best way to get children, in particular, out of poverty. That is why we want to incentivise work, which is the best route, but we need to focus on making sure that people see their wages rise and take home more of their pay packet once they are in work. Our reforms include increasing the national living wage for workers aged 25 and over, cutting income tax for over 30 million people and extending free childcare for working parents.
My Lords, the Government never anticipated that inflation would be double what it was when they originally introduced this freeze on working-age benefits. If they are prepared to look again at public sector pay, why will they not look at working-age benefits?
I think I said that we are already spending over £95 billion on benefits for people of working age, but we have to ensure that that is fair also to the taxpayer and that it encourages people into work. Before we brought in the Welfare Reform and Work Act, the inflation rate, for example, for most working-age out-of-work benefits, such as jobseeker’s allowance, went up by 21% between 2008 and 2015, while earnings rose by 12%. We want to incentivise work, which we know is the best route out of poverty.
My Lords, does the Minister agree that incentivising people back into work and supporting the poorest in our society, including children, are not mutually exclusive? Will she comment on the ways of doing the second alongside the first? Will she also set out the Government’s plans to remedy the current situation, in which the poorest of the poor are falling further behind?
I absolutely understand where the right reverend Prelate is coming from, but I want to make it clear that we are doing all we can to help those most in need and, for example, maintaining payments for people with additional needs. That is why we will be spending a further £2.5 billion this year to support pensioners and carers and to maintain the value of payments to people faced with the extra costs of disability needs. In addition, we are giving extra support to lone parents and children.
My Lords, can the Minister comment on the intergenerational difference? Many pensioners pay 40p in the pound in tax and get significant rises because of the triple lock, whereas some of the poorest families who have been referred to recently are having their income reduced in relation to inflation?
My Lords, it is true that the state pension and benefits for pensioners are exempt from the benefit freeze, but this is because they are generally for people who have permanently left the labour market, meaning they have less ability to increase their income. We are committed to the triple lock for the remainder of this Parliament, but pensioner poverty continues to stand at one of the lowest rates since comparable records began—and we want to keep it that way.
Child and Adolescent Mental Health Services
My Lords, the Government are committed to making sure that 70,000 more children and young people each year will receive evidence-based mental health treatment by 2020-21. Since publishing Future in Mind, the Government have made an additional £1.4 billion available to improve children’s mental health. Key mechanisms for delivery are local transformation plans, which cover the full spectrum of mental health, and the upcoming children and young people’s mental health Green Paper, which will contain proposals for further improving access to services.
My Lords, does the Minister agree that early intervention is essential to prevent escalation into crisis and lifelong problems? Is he aware that the number of CAMHS psychiatrists fell by 6.6% between 2013 and this year, while demand for their services rose? The number of qualified doctors who go into psychiatry is 2.6%, the lowest of any specialism, and some universities do not send any. Will he consult Health Education England to find out what it is doing about this, because the pipeline is drying up?
The noble Baroness is quite right to highlight the fact that we need more staff to meet the mental illness burden in society, which is sadly growing. I hope that she will have seen that Health Education England has announced that there will be 21,000 more mental health staff by 2021, of which 13,000 will be qualified clinical staff, including 700 more doctors. The warning she has made has been heard loud and clear and those changes have been made.
If I may, I would like to use this opportunity to say that I made a mistake in my previous answer, when I talked about there being 21,000 people eligible for flu jabs. If that really was true, that would be a poor place to be. It is actually 21 million, which is slightly more reassuring.
My Lords, I would like to ask the Minister about the 700,000 young carers, who often have severe mental health needs because of the stress of the duties they undertake, as he will know. We had high hopes of specific action for young carers in the refreshed carers strategy, but I understand that this is being rolled up into the consultation on the social care Green Paper. I am concerned and would like to be reassured that the Government have not abandoned the long-awaited carers strategy. If we are waiting for the social care consultation, how will he ensure that the mental health needs of young carers are urgently addressed?
I know that the noble Baroness cares passionately about this group of people. My understanding is that those policy issues are being considered in the round with the social care consultation. I shall write to her to clarify that point. She might like to know that, in the upcoming Green Paper on children and young people’s mental health, there will be an expansion of some of the work that has already gone on around providing mental health first aid and various other things in schools, which will capture some of the young people that she is talking about.
I declare an interest as having members of the family who have used child and adolescent mental health services. Does the Minister not agree that the fundamental principle of the NHS is free treatment at the point of need? Does he also agree that one of the major failures in CAMHS—it has been well evidenced by academic studies over the last two years—has been that, because of the shortage of resources, only those with the most critical needs are treated at all, and the early intervention which would help prevent needs becoming critical has been deeply neglected owing to an absence or lack of specialised therapies, particularly talking therapies? Will he confirm that the work on the most critical side is going to be extended so that children and adolescents can get care earlier and more effectively, saving the state money and fulfilling the purposes of the NHS?
Yes, I wholeheartedly agree with the most reverend Primate. We are making up for lost time, unfortunately, with children and young people’s mental health care and there is a lot to do. He will be pleased that the additional funding being provided is helping with the rollout of the children and young people’s IAPTs—the talking therapies. As I said, the intention of the extra funding is to be able to treat 70,000 more young people, on top of those who have already been treated, by 2021—so more young people are being seen. That will increase the 25% of the potential caseload currently dealt with to 35%. Obviously that is better but it is not the whole way.
That is an incredibly important point because good relationships are very influential on young people’s mental health, and the Green Paper will look at the role of family conflicts. My noble friend will be pleased to know that the Department for Work and Pensions is launching a programme to reduce parental conflict in conjunction with the Early Intervention Foundation. I hope that it will have some positive benefit in reducing parental conflict, which is, of course, one of the causes of mental illness.
The noble Lord is right about variation, sadly. We had the CQC thematic review on mental health provision at the end of last week, which showed that 80% of specialist in-patient care is good or outstanding but that that is true of only two-thirds of community care provision, with around a third either requiring improvement or inadequate. That is clearly not good enough. Patchy provision is absolutely one of the things that we need to deal with. The best way of doing that is by expanding both the number of children being treated and the size and quality of the workforce, to help us to meet our targets.
According to a Guardian article last month, English CAMHS is struggling to satisfy the rapidly growing demand of referrals. We all know this. Within the past decade, 68% of admissions into hospital because of self-harm were girls under the age of 17. What are the Government doing to decrease the number of young girls inflicting self-harm?
Again, this is one of the most difficult issues. Two hundred thousand people a year are admitted into the health service with self-harming injuries. Twenty per cent of young women under the age of 24 have said that they have self-harmed at some point in their lives—that is one in five. There are now NICE guidelines on self-harm and its treatment and there will be a new care pathway by 2019. However, I do not underestimate how difficult it is to crack this problem.
Data Protection Bill [HL]
Committee (1st Day)
Relevant document: 6th Report from the Delegated Powers Committee, 6th Report from the Constitution Committee
Clause 1: Overview
1: Clause 1, page 1, line 5, at end insert—
“( ) Section (Right to protection of personal data) makes provision for a general right to the protection of personal data.”
My Lords, in moving Amendment 1 in my name I shall speak also to Amendment 4A, which I hope the Government will agree is consequential. We now commence seven days in Committee on the Bill in your Lordships’ House with a simple amendment. It sets out a principle that we think is important enough to ensure that it is at the heart of the Bill. As in all Committee debates, Her Majesty’s loyal Opposition hope to engage the Government on issues of both principle and detail, and thereby improve the Bill by the time it leaves this House. As witness to our willingness to work with the Government, we have been reading the rather florid statements that the Government put out over the weekend and have tabled an amended version of our Amendment 4 in manuscript, which I gather significantly reduces the gap between us and the Government on a number of key points. But we will not resile from ensuring that the principles which underpin this Bill are securely in place.
As we made clear at Second Reading, we broadly support the Bill but we cannot ignore the fact that if the European Union (Withdrawal) Bill receives Royal Assent as it currently stands, it will remove rights which the people of this country currently enjoy, care deeply about, and are essential to UK business going forward. We think that the status quo has worked well for the UK up until now, so if it is not broken, why change it? I hope that the noble Lord has a convincing argument to make on this point when he comes to respond.
Much has already been said in your Lordships’ House about how complicated this Bill is. It has to deal with a fast-growing and crucial part of our economy and the pace of technological change will create services that we cannot even imagine today. Legislating for this is complicated, but getting the principles right is the key here. It gets even more complicated. The Bill deals with the situation that will obtain after the general data protection regulation is implemented across Europe on 25 May 2018. It provides for the period from that date until such time as the UK leaves the EU and it covers the period after that when what is called the “applied GDPR” will become the law of the land. It has been remarked on that all this is happening without Parliament actually scrutinising the basic text. I suggest again that principles are the key.
One of the key principles which underpinned earlier data protection legislation is Article 8 of the EU Charter of Fundamental Rights. It is indeed the basis of much of what is in the GDPR and applies to the whole of the EU, but when we try to find references in the Bill to the right to privacy and to the protection of personal data which Article 8 guarantees, they are not mentioned explicitly. We believe that the Government approach is wrong for three reasons. These principles matter and have been the subject of recent decisions in the courts, not least the one mounted by the Secretary of State for Exiting the European Union when he was David Davis MP, along with Tom Watson MP. Secondly, the removal of the right to protection of personal data risks weakening, or being perceived as weakening, UK data protection post Brexit. That may have significant consequences for UK data processing businesses, a point that I want to come back to.
The third reason is a broader point, one that the Government do not seem or perhaps do not want to get: rights and specific law act together to make a whole that is greater than the sum of the parts. If we were continuing in our membership of the EU, the fact that the Bill does not explicitly cover our rights to privacy and protection of our personal data might not matter because the EU Charter of Fundamental Rights would continue to be in force and individual data subjects such as Mr Davis and Mr Watson could rely on it if required. But while the EU withdrawal Bill currently in another place contains thousands of provisions that will be converted into our law, only one provision has been singled out for extinction—the EU Charter of Fundamental Rights. This omission from the Data Protection Bill really does matter because as well as underpinning personal rights to privacy, the wording of Article 8 will in effect be right across the rest of Europe and underpinning the legal framework permitting the free flow of data across European borders. It is the removal of the references to Article 8 that will provide a significant and totally unnecessary risk when the time comes for the EU to assess whether our regime is essentially equivalent to the rest of the EU, because that will be the test.
It is common ground among all the parties that it is essential that immediately after Brexit, the Government should obtain an adequacy agreement from the Commission so that UK businesses can continue to exchange personal data with EU countries and vice versa. If we are unable to reach such an agreement with the EU, there will be no legal basis for the lawful operation of countless British businesses and there will also be a significant question of whether EU companies will be able to trade with us if we do not enjoy the Article 8 protections that they will have. That, in fact, is double jeopardy. The Government seem to have forgotten that the frictionless transfer of data is critical to the functioning of our economy. Roughly 70% of the UK’s trade and services is reliant on the free flow of personal data. The EU’s data economy is expected to be worth £643 billion by 2020 and millions of UK citizens regularly share their lives online. To operate, UK businesses require clarity on the legal basis for data transfer post Brexit, but so do EU companies.
The rights outlined in our Amendment 4A are at the cutting edge of global data protection law and are essential for our tech industry in the UK. Indeed, the wording of the amendment was suggested to us by techUK, which is the industry voice of the UK tech sector, representing more than 950 companies, which collectively employ more than 800,000 people. That is about half of the tech jobs in the United Kingdom. If compliance with the Charter of Fundamental Rights is required to secure regulatory harmony and thus business confidence, the Government’s commitment to jettison these references in the charter appears rather odd.
Finally, concerns have been raised as to whether the amendment, even as redrafted, cuts across the GDPR. This is not the intention. The amendment does not undermine the role of the GDPR or the derogations to the GDPR set out elsewhere in the Data Protection Bill, which we support.
We will listen very carefully to the debate. I make it clear that we hope the Government will agree that the principles we outline in these amendments are important and will offer to work with us to make sure the Bill is amended on Report to achieve the objectives I have outlined. I beg to move.
My Lords, I am also pleased, as co-signatory, to support the amendment, the purpose of which is to retain in domestic law wording from the European Charter of Fundamental Rights concerning data protection. This is for the benefit of British citizens and to help ensure that vital data flows for business and law enforcement can continue if we Brexit.
The specific article in the EU charter, Article 8 on data protection, is stronger in this respect than the older non-EU European Convention on Human Rights, which deals with privacy only under the rubric of protection of family and personal life. The Government plan that the charter should cease to be part of UK domestic law after Brexit in Clause 5(4) of the European Union (Withdrawal) Bill. This broader issue will be considered as part of the scrutiny of that Bill, and there is a cross-party amendment tabled in the House of Commons and led by Dominic Grieve MP to remove that clause such that the charter continues to apply domestically in the interpretation of retained EU law. Liberal Democrats strongly support that amendment, but it seems appropriate not to wait for or depend on the success of that broader effort and at least effectively to embed the thrust of the charter as it concerns data protection in this Bill, which largely concerns EU law.
This is extremely important because if we Brexit, the UK will seek from the European Commission an adequacy decision on UK data protection so that transfers between the UK and the EU can continue smoothly—an objective the Prime Minister has singled out for mention. If we leave, EU states may no longer be able to share data with us unless our legal regime on matters including state surveillance powers aligns with EU requirements. The adequacy assessment will be wide-ranging, taking in all aspects of law and practice in the UK. The embedding of the charter’s data protection right in this Bill would be an important safeguard for business continuity—especially for tech companies, which depend crucially on the free flow of data—as well as ensuring that essential cross-border police and intelligence co-operation is not disrupted.
I, my noble friends Lord McNally and Lord Paddick, and other noble Lords raised at Second Reading the need for measures to protect us from threats, not to undermine our civil liberties. We are used to the European Court of Human Rights ruling on privacy issues, several times finding the UK in breach of the convention, but more recently in the digital age it is the European Court of Justice—the EU court—that has come into play as EU law on protection of electronic communications and the provisions of the Charter of Fundamental Rights has begun to bite. The Snowden revelations brought heightened sensitivity about the extent of the legitimacy of the activities of our intelligence services.
The EU data retention directive—the EU law on mandatory mass data retention—was pushed through Brussels in 2005 when the UK had the presidency of the EU by the then UK Home Secretary in an expert piece of lobbying after the London bombings of that year. In a landmark 2014 judgment, the court struck it down as incompatible with the right to respect for private life and data protection under Articles 7 and 8 of the charter. Then, as mentioned by the noble Lord, Lord Stevenson, the judgment on DRIPA last December—technically, the Tele2/Watson case, although initially also involving the then Back-Bench David Davis MP—continued in the same vein, declaring that mass data retention was “disproportionate” to citizens’ rights to privacy. Its implications for the Investigatory Powers Act and the question of whether bulk collection of communications data could be permitted to infringe privacy on the grounds of pursuit of serious crime or threats to national security may be ascertained by the reference to the European court made by the Investigatory Powers Tribunal in September. Certainly, the wide range of powers in the Investigatory Powers Act might look vulnerable to being found in conflict with EU law. The Independent Reviewer of Terrorism Legislation, Max Hill, suggested that it was unclear whether the ruling in the Watson case on safeguards for data retention regimes could be interpreted as applicable to national security.
It is true that while in the EU the national security exemption from EU competence applies but, as was brought out at Second Reading, if we were outside the EU the arrangements for our intelligence agencies would go into the whole mix that is assessed for compliance with EU standards. The court’s decision in July, rejecting the legality of the EU agreement with Canada on the transfer of passenger name record details, provides a salutary lesson in how the court approaches third-country transfers. It struck down the agreement because several of its provisions were incompatible with EU fundamental rights. It is therefore crucial that we embed the wording of Article 8 of the charter.
The Labour Opposition have tabled an amended version of Amendment 4, namely Amendment 4A. This is an interesting variation and I look forward to learning a bit more as we progress about exactly how the new wording would work. As I understand it, the safeguards in subsection (1) of the proposed new clause and the first part of subsection (2), which are replicated from Amendment 4, would and should still govern the,
“provisions, exceptions and derogations of this Act”,
otherwise, the point of writing in safeguards is undermined.
I wonder about the reference to,
“purposes as set out in the GDPR”,
since the GDPR is concerned only with the processes for data manipulated in accordance with purposes set down in other instruments. I am slightly unclear about that.
I believe that there has been concern about a conflict with press freedom. Of course we are suffering here from the fact that we have only a partial bite from the charter, which contains a firm provision on freedom of expression and information as well as on the right to security. When we succeed in retaining the whole charter in domestic law via the EU withdrawal Bill, the whole balancing exercise will become more apparent than with this snapshot. In the meantime, we have to proceed with entrenching this partial aspect of the charter as concerns data protection.
My Lords, the problem with Amendment 4 is that it would not incorporate the charter provision relating to personal data. The reason for that is that it addresses the prima facie right to the protection of personal data, but not the limitations and exceptions recognised by the European charter itself. Article 8, like all the other rights in the European charter, is subject to the limitations stated in Article 52. That says that there can be limitations on protected rights if they are provided for by law, are necessary and meet,
“objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.
It is because there has to be a balance between this prima facie right and exceptions and limitations that the Bill contains a very large number of exemptions which cover a whole range of circumstances in which the rights of the data subject have to give way to other considerations, such as national security, the detection of crime, taxation, judicial appointments or confidential references for employment. There are many such exemptions.
The Bill contains exemptions because there are other interests in this area, and other rights, which conflict with the right to protection of personal data, and a fair balance is required. The Committee will want to debate the scope of those exceptions and limitations and be satisfied that the balance has been struck correctly. But Amendment 4 suggests that there is some absolute right to the protection of personal data. That is simply wrong. That is why, I imagine, the noble Lord, Lord Stevenson, has tabled manuscript Amendment 4A, which attempts to address the defect in Amendment 4.
I would have wished for more time to consider Amendment 4A, which I understand was tabled only this morning, particularly if the noble Lord, Lord Stevenson, intends to divide the Committee today. I am concerned that Amendment 4A poses two difficulties of its own. First, the value of including Amendment 4A is not clear to me. The Bill already sets out in considerable detail the domestic implementation of the charter obligation; that is, Article 8 read with Article 52. I fear that including Amendment 4A in the Bill would be likely to cause legal confusion and uncertainty in an area where precision and clarity are essential—and, indeed, are provided by the substance of the detailed provisions in the Bill.
Secondly, I fear that the purpose of Amendment 4A is to confer some special, elevated legal status on Article 8 rights concerning personal data for the future, as subsection (4) suggests. I think that would be very unwise because, as I have said, Article 8 rights often conflict with other rights—whether it is freedom of expression, which we heard about, or the right to property—or other interests. The detailed provisions of the Bill illustrate the difficult choices that have to be made in this area.
Amendment 4A seeks to give a special legal status to one charter right in isolation and that is simply inappropriate. For those reasons, I hope that the noble Lord, Lord Stevenson, will not divide the Committee on Amendment 4A. If he does, I will vote against it.
My Lords, this is a complex Bill—necessarily so as it balances the need to access data and the need, in appropriate circumstances, to protect data from access, as the noble Lord, Lord Pannick, said. Most of the amendments in the Marshalled List seem to me to be about fine-tuning the provisions to alter the balance a little, one way or another. However, Amendment 4A—charmingly introduced as it was by the noble Lord, Lord Stevenson—seems to be in a different category. It seeks to incorporate the provisions of the Charter of Fundamental Rights into the Bill by including the wording of Article 8.
I do not claim particular expertise in data protection, except to say that every business and every professional is or should be aware of their obligations in this area. I do, however, have considerable experience of the interaction of detailed legislative provisions and rights instruments. My experience stems from legal practice and as a former Minister in the Ministry of Justice. A particular focus of my attention was the European Convention on Human Rights and, to a lesser extent, the charter.
There is always a difficulty in marrying up detailed legislative provisions and broad-based charters or conventions, which are inevitably framed in generalisations. I have always thought that a combination of our Parliament and our courts should be capable of protecting citizens’ rights. However, to help in that pursuit we have the Human Rights Act, which incorporates the European convention into our law and gives the Strasbourg court a significant role.
The charter, unlike the European convention, is a relatively new development and it is a particularly EU document, as opposed to one stemming from the Council of Europe. When it came into being, there was concern that it could create a flood of new court actions, which could overturn British laws. However, the country was no doubt much reassured by Keith Vaz, the then Minister for Europe, who said that the charter would have no greater standing before EU judges than a copy of the Beano or the Sun. He specifically said that it did not,
“establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Union”.
The noble and learned Lord, Lord Goldsmith, who I am glad to see in his place, expressed himself in far more lawyerly terms when giving evidence to the European Scrutiny Committee, as one would expect. He explained that the UK Government’s objectives in the charter convention negotiations were to be careful that the charter did not create new rights and, in particular, not to make economic and social rights justiciable where they were not already justiciable.
Tony Blair, the then Prime Minister, assured the House of Commons, which was concerned about the implications of the charter:
“It is absolutely clear that we have an opt-out ... from the charter”.—[Official Report, Commons, 25/6/07; col. 37.]
He referred to Protocol 30 of the treaty. Unfortunately, the European Court of Justice took a different view of the effect of Protocol 30 and even though the charter applies only when member states are acting in the scope of EU law, the ECJ has rather inevitably read this phrase expansively.
In view of its previous attitude to the charter, it is therefore surprising that the Labour Party has now evinced such enthusiasm for it. For those of your Lordships who, like me, very much regret that we are leaving the EU, one of the only clear benefits for our law is that we will no longer be confused—or at least potentially confused—by the fact that the charter has some role as yet not clearly defined in our law. Clause 5(4) of the European Union (Withdrawal) Bill makes it absolutely clear that the charter will have no continued life after Brexit. This amendment, on the other hand, would hardwire the charter, or at least Article 8, into our law and of course would give the ECJ, as the ultimate arbiter of EU law—and this is EU law—a continued role after Brexit.
All this is very good news for lawyers, for whom complexity is the stuff of profit. But how will it help in protecting rights? It is expressed as an absolute right—not its position in EU law, as the noble Lord, Lord Pannick, said. This is to be compared with Article 8 of the ECHR, a right which has caused some difficulty but is nevertheless a qualified right. How will the two work together? This would be an absolute, unqualified and free-standing right. How on earth are the courts to apply it, superimposed as it will be on other provisions in the Bill and existing concurrently with the European convention? There are distinct dangers that it will be relied upon by those whose data should be accessed, such as terrorists. I fear that we have as yet received no clear explanation of the justiciability of the provision and how it will work in practice, in particular in what circumstances it will provide protection which would not otherwise be provided by the detailed provisions of this Bill. It follows that this amendment is, in my view, incoherent, unnecessary and even potentially dangerous—but that is a charitable view.
Another view is that this is a cynical piece of politics. It has nothing to do with data protection and everything to do with Brexit. It is not without significance that the charter, as we have heard from the noble Baroness, Lady Ludford, is the subject of various amendments in the House of Commons in relation to the European Union (Withdrawal) Bill. Is this the first shot in the war to destroy that Bill? Surely it would be more appropriate for the Opposition to hold their fire, rather than undermine this valuable legislation.
The Liberal Democrats have of course made their position clear. They do not think it appropriate to respect the result of the referendum without asking the public to think again. It follows, I suppose, that they will have no compunction in undermining the coherence of this Bill in pursuit of their objective of frustrating Brexit. There are so many of them that, combined with the Labour Party, they can probably defeat the Government on this issue. I wonder how a party which is so insistent on the proper workings of democracy can justify by their disproportionate representation in this House playing such a destructive role, particularly when they are unelected.
The noble Lord, Lord Stevenson, is rightly respected in your Lordships’ House. I suspect he has his riding instructions. This amendment is at best a bad idea; at worst, it is a piece of unworthy political manoeuvring. I suggest your Lordships have no truck with it, and I hope the Committee will vote against it.
My Lords, one of my many character defects is party loyalty. That has led me in the past even to vote against my own amendment, which I will never do again. Today, I have the misfortune to disagree with my party. I will explain briefly why I cannot possibly support the original amendment, which is constitutionally illiterate, or the attempt to rescue it in the manuscript amendment.
The Minister has rightly put on the front page of the Bill his opinion that the Bill is compatible with the convention rights. Those rights include the right to free speech in Article 10 and the right to respect for privacy in Article 8. The Minister could certify in that way because the Bill rightly carries forward from the previous Act journalists’ rights—for example, to protect their sources—which you can find buried away in Schedule 2(5). The Minister was able to do that because we have the Human Rights Act, which requires him to do so, and the European convention, which strikes a balance between free speech and privacy.
I do not understand what on earth the charter has to do with that. As the noble Lord, Lord Faulks, rightly explained in the better part of his speech—the first part—the charter is there as a shield against the abuse of power by EU institutions. Maybe he did not say that, but he would like to have done, I am sure. It is not intended to be a source of rights in parallel with the European convention. The amendment in its original form, and its amended form, seeks to give legal force to one bit of the charter. It squints. It looks at Article 8 of the charter on privacy and data protection, but it does not look at the other bit of the charter that deals with free speech. Then, because it is obvious that the original version was constitutionally illiterate, the manuscript amendment seeks to repair that by saying that it is subject to the exceptions and derogations in the Bill. That is not good enough because it then seeks to give fundamental importance to the right of data protection, as though it were in the Human Rights Act and the European convention, and then it completely fails to explain how on earth any court is meant to reconcile the amendment, if it became law, or the amended amendment, if that became law, with what we already have in the European convention.
I agree with every word of my noble friend Lord Pannick’s speech, and I agree with the first part of the speech by the noble Lord, Lord Faulks. I am afraid I cannot possibly support this amendment. I very much hope that it will be a probe and nothing more at this stage. We are at the beginning of Committee stage. We need to think about some of these issues carefully. If we were now to divide the House and vote to incorporate either version, we would be doing an injustice to the arguments and intelligence of the House.
When I first joined the House, I remember Lord Alexander of Weedon saying to me, “Anthony, you must remember that the House of Lords is not a Court of Appeal; it is essentially a jury”. He was right about that. Most noble Lords, including me, will have understood only half of what was said in some of the original speeches. What is surely clear is that we would be failing in our duty today if we were to amend the very beginning of the Bill at this stage, rather than consider it properly and come back to it at Report.
My Lords, it is a daunting thing to have to follow such an enjoyable speech. I simply say that, as I read Amendment 4 alongside Amendment 4A, it appears that the original opposition amendment had the unintended consequence that it destroyed all the exemptions already contained in the Bill. So Amendment 4A must be an improvement, but I am unclear precisely what is the purpose of Amendment 4A, because it expressly adds the principle of its being subject to all the general provisions of the Bill, so it adds nothing. I hope that we will not be pressed to a Division.
The amendment raises an important question of principle, and one which this House will have to consider further when we scrutinise the European Union (Withdrawal) Bill. One reason why the charter was brought into being was to give visibility to rights which existed elsewhere. As at least some noble Lords will know, I speak with some experience, having spent a number of months involved in the negotiation and conclusion of the European Charter of Fundamental Rights. It was a key aim behind the decision of the European Council at Tampere and Cologne to bring together a group of people to set out in the charter the rights which would affect them, largely in their relations with the EU institutions.
I emphasise the word “visibility”, because the point just made by the noble Lord, Lord Lester, about laypeople not understanding what lawyers say is all too familiar to those of us who are lawyers. It is a very good reason why we should attempt, when we are saying things which are important, to say them in a way which is clear and comprehensible. Both amendments—I shall come to the difference between them as I see it—start by saying that we all have the right to protection of personal data concerning ourselves. That is a very important principle, and one which is very reassuring, whatever the exceptions, derogations and limitations on it may be. That is what the charter sought to do: to make these things clear to everybody.
What are the objections to the amendments? The first is that they do not allow for the exceptions and reservations which apply. The noble Lord, Lord Pannick, referred to the provisions of the charter, which state that all of the rights in the charter, with almost no exception—although there are one or two—can be subject to exceptions and limitations. I agree with the noble Lord about that; that is the position taken in the charter, and rightly so. There is a balance between different rights of different people and of different rights between the citizen and the state.
That is what I understand that Amendment 4A is intended to correct, by making it clear that the general statement of principle, which I still believe is important, is none the less subject to certain exceptions and derogations set out in the Bill. The Bill in Clause 13 and the regulation-making power under Clause 14 provide for the ability to make exceptions, reservations and derogations. I sympathise with the noble Lord, Lord Pannick, when he says that he is not sure, in the time available, whether this will achieve the objective of turning something which he was concerned appeared to be too absolute into something which works. There are ways to deal with that and ensure that further time is available or—this is not for me to say—if my noble friend Lord Stevenson moves the amendment and it is passed, it can be corrected afterwards. But that is a point of timing, albeit an important detail. With respect, it appears to me that what matters is for us to give a clear statement that this principle of data protection applies to all of us.
It is then asked, “Well, what about other provisions in the charter?”. No doubt that is a debate that we will have when we come to the withdrawal Bill. Will those other provisions also be allowed to stand? That will be a matter for this House and the other place when the Government bring forward that Bill. However, there is a need for visibility and for reassurance to all that there will still be a principle of data protection that we will uphold. For that reason, while it is apparent from what I have said that my preference is for Amendment 4A as opposed to Amendment 4, I think that that amendment ought to receive the support of this House.
My Lords, I appeal to the noble Lord, Lord Stevenson, not to rush the House on this matter. The amendment is clearly deficient. This morning I was with the director of the Victoria and Albert Museum, Dr Tristram Hunt, who urged me, if I possibly could, to say something briefly this afternoon. He gave me a brief that I have not had a chance to master, but it is quite clear that all the directors of our great national museums and galleries have real misgivings about Amendment 4 and, from what I have heard, would have similar misgivings—or most of them—about Amendment 4A. There is no constitutional need for us to divide this afternoon. Shortly after I came into your Lordships’ House, I remember that the late Lord Jenkin of Roding said, “We don’t normally vote at Committee stage in our House. It’s better to air the arguments and then to come back to them on Report”. That was wise advice and the House should heed it today.
My Lords, I suspect that this is going to be a shorter debate than perhaps was at first imagined, but I feel it is important that I add one or two words. When I was Minister at the Ministry of Justice, preceded by the noble Lord, Lord Faulks, I met a distinguished American lawyer. I said to him by way of introduction, as I regularly did, “Now, I’m not a lawyer”. He looked at me and said, “Then I’ll speak very, very slowly”.
I feel a bit like that after all the howitzers have been rolled out this afternoon—the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, along with a more helpful contribution from the noble and learned Lord, Lord Goldsmith. I intervened because it would be very wrong, or very misleading, if Ministers were to take this mini-debate as an escape from a real problem. I was, although the post may have been slightly misnamed, Minister for Data Protection for three and a half years. Between 2010 and 2013 I had the job of going across to Brussels for negotiations on a lot of the issues that we are now discussing. What struck me there was how much influence we had in bringing together legislation that met the concerns mainly of western Europeans about a light-touch form of regulation and the concerns mainly of eastern Europeans who had fairly recent experience of how state abuse of power could be used against the citizen and the individual.
The point that I want to leave with Ministers is that, whatever fault our legal experts have found with the amendment, it underpins a real concern, which the noble and learned Lord, Lord Goldsmith, picked up: the layman, the ordinary citizen, wants to be assured that by the end of the Bill’s passage, on which we are only just starting, it will very much protect civil rights, civil liberties and individual freedoms. One of the great challenges we face is that this extraordinary change in the structure of our society, brought about by this fourth industrial revolution based on data, really calls into question a lot of the protections that we thought we had.
I hope the Minister will take and grab hold of what was said in introducing this Bill. We are attempting in these amendments, particularly in Amendment 4A, to meet a real and genuine concern of ordinary people who are perhaps not as clever as the noble Lords, Lord Pannick, Lord Lester, and others, but who have a concern about the abuse of power. There has been no sense of shame or regret. I understand and have been passionate all my life about the defence of the freedom of the press, but I wish that the press did not rush so quickly to scream, “They’re trying to curb the freedom of the press”, when all that the press has done since Leveson is try to sabotage any proper press regulation. I worry about saying, “Well, it will stop various parts of our society using this new data”, without seeing and recognising the huge amount of evidence already of massive abuses of data which impinge on our very democracy. I felt it worth saying, even if I had to listen to the lawyers, that the layman also has a voice in this, and we have a real duty to make sure that this legislation is up to the task presented by the new data world.
I realise that, in rising to speak on this particular part of the Bill, I depart slightly from the purpose of the noble Lord, Lord Stevenson—but I thank him for raising the issue all the same.
Of course, we are dealing with the overview of the Bill. The noble Lord, Lord McNally, almost wrote my introduction. What has worried me for some considerable time, notwithstanding the Bill’s provisions that provide for data subject to error correction, is the manifest inclusion of data in the data processing function, which is broadly drawn—namely, the inclusion of information that is knowingly false or recklessly included in that process, and which can affect the life chances of individuals. We know of significant and high-profile circumstances in which false information has been included and has either affected a significant class of people or has seriously damaged the life prospects of individuals.
Given that the collection of data is part of the processing function, it seems to me that very little is being said about responsibility for those sorts of errors—in other words, the things that one could or should have realised were incorrect or where there was a disregard for the norms of checking information before it got into data systems. We heard at Second Reading how difficult it is to excise that information from the system once it has got in there and been round the virtual world of information technology.
Could the noble Lord, Lord Stevenson, or the Minister in replying, say whether there is anything apart from the Bill—I do not see it there at the moment—that enables there to be some sort of sanction, for want of a better word, against knowingly or recklessly including data that is false and which affects the life chances and prospects of individuals because it is capable of being identified with them and can be highly damaging? That is something that we may need to look at further down the line. If I am speaking in error, I shall stand corrected.
My Lords, I say to my noble friend Lord McNally that it is even worse having people say to you, “You’re a lawyer, you must understand this”, when too often you do not.
I have a question for the Minister. Am I right in thinking that the Charter of Fundamental Rights will apply to all member states after Brexit? Is it not the objective that we are on all fours with them as other users of data and, therefore, if there is no provision such as the ones that we have been debating contained in the Bill, how will that affect the adequacy arrangements?
My Lords, I want to say a couple of words about privacy. A very important basic point has been raised here. I am not going to argue with lawyers about whether this is the right way in which to do it, but the right to privacy is something about which people feel very strongly—and you will also find that the Open Rights Group and other people will be very vociferous and worry about it, as should all of us here. When we go out and do things on the internet, people can form some interesting conclusions just by what we chance to browse on out of interest, if they can record that and find it out. I became very aware of this, because I have been chairing a steering group that has been producing, along with the British Standards Institution, a publicly available specification, PAS 1296, on age verification. It is designed to help business and regulators to comply with Section 3 of the Digital Economy Act, which we passed just the other day, which is about protecting children online. The point is to put age verification at the front of every website that could be a problem. We want it to be anonymous, because it is not illegal for an adult to visit sites like that; if it was recorded for certain people in certain jobs, it could destroy their careers, so it must be anonymous. So a question arises about trying to put in the specification a right to privacy.
One thing that we have to be very careful about is not to interpret laws or regulations or tread on the toes of other standards. Therefore, when this Bill and the GDPR are passed, we must make sure that people processing any of that material ensure that any data is kept completely secure, or anonymised, or is anonymous in the first place. Websites, first of all, should not know the identity of a temporary visitor when they get verified—there are ways of doing that—so that there are rights to privacy. The thing about the right to privacy is that it is a right that you, the individual, should have. The GDPR and this Bill are about how you process data; in other words, it is about what you do with the data when you have it. The legislation builds in lots of safeguards, but there is nothing that says, when you decide what data to keep or whatever it is, that people should have a right to know that it will not be revealed to the general world.
The question is where we should put it in. People used to think that Article 8 of the European Convention on Human Rights covered them, but I realised just now that it covers only your relationship with Governments. What about your relationship with other corporates, other individuals or ordinary websites? It should cover everybody. So there is an issue here that we should think about. How do we protect ourselves as individuals, and is this the right place to do it? I think that this is probably the only place where we can put something in—but I leave that to the very bright lawyers such as the noble Lord, Lord Pannick, to think about.
My Lords, I remind the Committee that this is an intensely practical issue. We have managed to lure many of our learned noble Lords from their chambers today—so clearly it has been a fairly expensive afternoon. I am only a humble solicitor and I tend to focus on what is practical and necessary for those whom we advise. The fundamental basis of these amendments is the concern in many sectors—manufacturing, retail, health, information technology and financial services in particular—that the free flow of data between ourselves and the EU continues post Brexit with minimum disruption. With an increasingly digital economy, this is critical for international trade.
We have been briefed by techUK, TheCityUK, the ABI, our own Lords EU affairs sub-committee, and the UK Information Commissioner herself. They have persuasively argued that we need to ensure that our data protection legislation is ruled as adequate for the purposes of permitting cross-border data flow into and out of the EU post Brexit. The first question that arises is: will the Government, even before any transition period, start the process needed to obtain an adequacy decision from the EU before we arrive at the status of a third country for EU data adequacy purposes?
However, as the Committee has heard today, if an adequacy ruling is to be sought, a major obstacle has been erected by the Government themselves in the European Union (Withdrawal) Bill, which makes it clear that the European Charter of Fundamental Rights will not become part of UK law as part of the replication process. Many noble Lords have spoken of their fears about the interaction with Article 8 of the charter, yet this article, relating to the protection of personal data, underpins the GDPR. How will we secure adequacy without adhering to the charter? Will the Government separately state that they will adhere to Article 8? We are not trying today to confer “special status”, in the words of the noble Lord, Lord Faulks, on Article 8. The wording of the amendment reflects Article 8, but it is designed to create certainty, post Brexit, for the sectors of business which I mentioned earlier.
Let us not forget that the EU Select Committee heard from witnesses who highlighted the ongoing role of the European Court of Justice and the continued relevance of the Charter of Fundamental Rights in relation to adequacy decisions. The amendment is not frivolous: it is essential to underpin an adequacy decision by the EU post Brexit. Does the House really want to put that decision at risk? I am sure that it does not. Whether now or in the future, we need to pass this kind of amendment. I look forward to hearing what the Minister has to say, which will determine whether or not the House divides.
My Lords, when I came into the Chamber, I had not the faintest intention of speaking in this debate. I do so, above all, for one reason: not because I am opposed to the amendment, although I am, very substantially, for the reasons given by the noble Lord, Lord Pannick. I do so because, in my experience, it is very unusual nowadays to vote at the outset of Committee stage on so fundamental a question as that raised by the amendment. It is surely yet more unusual—spectacularly so—to do so on a manuscript amendment filed this morning, which none of us has had sufficient time to deal with, on a very tricky area of the law, which so fundamentally alters the original amendment. As we have heard, that amendment was completely hopeless. The noble Lord, Lord Lester, described it as “constitutionally illiterate”. At least this one tries to introduce the concept of a balanced right which previously was missing.
It is true that I come from a different tradition where you do not vote on anything or decide anything unless you have heard the arguments. I rather gather that there may be a whipped vote on the other side, so the amendment is going to be voted on by noble Lords who have not heard the arguments of the noble Lords, Lord Pannick, Lord Faulks and Lord Lester, and who do not recognise the difficulties and the fundamental importance of this amendment. I seriously urge that it is not pressed to a Division today.
My Lords, I am grateful to all noble Lords who have spoken, many of whom do not appear to support these amendments. I particularly thank the lawyers in the House, who have instructed us on the legal position. I feel slightly like the lay person who was talked about, which I am, I hasten to add.
On a political view, it is important to remember that only three weeks ago at Second Reading it was clear that the Bill was widely supported across the House. Many noble Lords highlighted areas where further scrutiny and perhaps improvement were desired, but the House was unanimous in the view that data protection laws needed updating, that the general data protection regulation standards were the right standards, and that we must do everything to maintain future free flows of data. We shared those conclusions because we understand the role and value of data in our digital world and how it is the basis of delivering education, social mobility and economic advantage. That is why it is so sad that in this first group of amendments, on the first of seven days of Committee, for a Lords starter Bill, the opposition parties have threatened to suspend the usual business arrangements whereby we can debate in Committee, meet subsequently outside the Chamber and often come to agreement before the Bill leaves our House—an arrangement which does not prevent votes when they are needed, but which has worked well in the past. I urge noble Lords not to put this at risk. The Data Protection Act has stood the test of time because it was not a partisan piece of legislation, and we must not allow this Bill to become one.
Many noble Lords have said that these amendments are made in good faith to ensure that the UK is given a data protection adequacy agreement by our largest trading partner. This is the right ultimate objective, but it is the wrong route to get there. Contrary to the charge of the noble Lord, Lord Stevenson, we have not forgotten the importance of a free flow of data. In fact, ensuring we maintain a free flow of data is our number one priority, and we want to achieve that from the moment of Brexit, not wait to become a third country and then start the application process for adequacy. I direct those remarks especially to the noble Lord, Lord Clement-Jones. That is why last year we committed to ensuring that the UK adopts GDPR standards. That is why in August we published our plans and ambitions for the free flow of data once we leave the EU. That is why we have presented this House with this Bill: a Bill which builds a comprehensive regulatory system for personal data that covers everything that could be scrutinised in future adequacy negotiations, including areas which are not currently subject to EU jurisdiction. That answers the question of the noble Baroness, Lady Hamwee, on adequacy and the point made by the noble Lord, Lord Clement-Jones.
In the past, 12 countries have negotiated adequacy agreements with the EU Commission, including Canada, Israel, New Zealand and the USA. None of these was forced by the EU Commission to put the charter into their law in order to obtain adequacy. It is not a requirement and it is peculiar to suggest that it will be. It is a myth that we need this amendment to secure a future agreement. Why is that? The GDPR itself, which will become part of our law, says in Recital 4:
“This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data”.
Recital 173 says:
“This Regulation should apply to all matters concerning the protection of fundamental rights and freedoms vis-à-vis the processing of personal data”.
The noble Lord, Lord Stevenson, was reported over the weekend to be claiming that the Government were scaremongering. We were not. We were deadly serious about the risks, so I am delighted that the noble Lord has now recognised that Amendment 4 needs further thought. What a pity, therefore, that he was unable to discuss it with the Government.
I listened to the noble Baroness, Lady Ludford, who addressed the original Amendment 4. The problem, which I think has been alluded to, is that subsection (3) of the proposed new clause creates an absolute unqualified right to data protection. As attractive as that sounds, it is fatal, for two reasons. First, data protection is not an absolute right, as many noble Lords have said, and the GDPR says it explicitly, too:
“The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality”.
Secondly, both the GDPR and the Bill create a number of exemptions from data rights, which we will debate over the next few weeks. However, while we may disagree on some exemptions, I think that we all agree on the important ones. Terrorists must not be given unrestrained access to information held about them by the security services. Scientists must not usually be prevented from advancing research and furthering understanding. Therefore, the original Amendment 4 creates a risk at precisely the time we need reassurance.
However, Amendment 4A is a welcome improvement. We received this amendment just before noon today. Data protection is not the simplest area of our law, and at Second Reading many noble Lords commented on the complexity of the subject. It would be irresponsible of the Government to accept an amendment of this sort with just a few hours to consider it. What does it mean for future data flows and trade? How does it interlock with the rest of our legislation on information rights? What will the courts make of it?
At best, Amendment 4A is unnecessary or may not achieve what it seeks to achieve. Two particular problems with it were mentioned by the noble Lord, Lord Pannick. First, it has no value, and it only creates legal confusion. Secondly, subsection (4) of the proposed new clause is unwise. Rights often conflict; the Bill and the Human Rights Act manage those conflicts, while subsection (4) does not. At worst, as my noble friend Lord Faulks, outlined, it may have unintended consequences which nobody has been able to consider. Our initial analysis is similar to that given by the noble Lord, Lord Pannick, that Amendment 4A probably does very little. It does little other than summarise what the Bill does. The Bill protects personal data rights, and Amendment 4A reminds us of this. None the less, with so much at stake, we must give this amendment full and careful legal analysis.
The noble Lord, Lord Stevenson, has been placed in a difficult position. Labour is in a muddle over this. But that is exactly why we do not usually vote in Committee. This stage is for resolving muddles and for understanding the issues. It is not the stage for tabling amendments on the day and voting on them hours later, without even discussing it with the Government. I cannot see how this is a service to the House, which prides itself on careful reflection.
The noble Lord, Lord Stevenson, reminded us at Second Reading about the number of Bills that he and I have worked on together. He said that this was the sixth. I pay tribute to the careful, detailed—and sometimes even enjoyable—scrutiny he has given. We have had many useful meetings. Today is the first day in Committee and the first group of amendments on the Bill. We should continue with the positive spirit that we have built together, setting out our arguments and concerns. We can continue to meet outside the Chamber, and I and the Bill team are always happy to listen to and meet other interested noble Lords. On Report, we can reflect and, where we disagree, we can divide.
Therefore, I hope that noble Lords will see that now is not the time and these are not the amendments on which we should divide at this stage. They are unnecessary and they may be deficient. This Bill is essential for our social and economic future, and we risk wrecking it at the first hurdle. I therefore ask the noble Lord to withdraw the amendment.
My Lords, I thank all those who have contributed to this debate—at some personal cost, I understand. There are points that we will certainly reflect on as we read Hansard.
I shall start with a slightly unusual point. I want to commiserate with the Minister for the unfortunate loss of his data just before he came into the Chamber this afternoon. His speaking notes and apparently much other data were stolen from him. That just shows the sorts of difficulties that one has with data, privacy and the issues that we have been talking about. I am surprised that he did not mention it, but he did not and I can only assume that things have worked out all right. However, if he wants help in drafting the personal victim statement, we will be very happy to meet him outside the Chamber on a number of occasions if that will be of assistance.
I do not have much luck with my drafting. I seem to recall being in this place only a few months ago and being coruscatingly attacked by a Cross-Bencher who thought that I had got a lower second with an amendment that I put forward to the higher education Bill. Mind you, I had quite a good result on that Bill. It was amended on the first day in Committee and that seemed to concentrate the minds of Ministers rather effectively. Therefore, I do not agree with those who have felt that this is a constitutional absurdity. In this House we have always reserved the right to vote “inappropriately” at any point, and Committee is one of those occasions. I am not saying whether we will do that today; I am just saying that it is not barred and it often has a purpose to serve.
However, the general tenor of the responses has been that we should not rush this. I was particularly pleased that the Minister suggested that we should meet outside the Chamber to discuss this issue, possibly reach agreement on it—those were his words—and perhaps come back on Report. I should remind him that Amendment 4 was tabled three weeks ago and no invitation to such a discussion reached my ears, so I am a bit surprised. The amendment was published and was available, and it could have been discussed. The fact that we are not going to move it today is slightly irrelevant but it raises all the issues that we are now engaging with. Indeed, at the meeting only last week, we did not really get on to the discussion about what we are about—we talked about other matters.
However, I do not want to fall out with the Minister because I enjoy working with him. Six Bills may seem a lifetime to many people but it has been a time enlivened by the ability to talk inside and outside the Chamber and to reach agreement. I hope that that is a genuinely meant proposal and, if it is, I will consider it very carefully.
My noble and learned friend Lord Goldsmith pointed out a really important issue. As I said in my speech—he picked it up and exemplified it—in order to achieve what the Government want to do, we need a combination of the rights that exist and the statutes that deliver the particularities of the issues concerned. I take on board all the points that have been made about drafting and the inability to do so, and I will reflect on those. However, if we have the right objective, which is to ensure that that balance is available to the people of the United Kingdom and that it will support our businesses in the future, surely we have a duty to make sure that it is delivered to a final conclusion and, if necessary, voted on.
In passing, I observe that it is interesting that the Minister had to resort to the recitals to the GDPR to be convincing about the fact that the GDPR has the effect of bringing the rights in the charter into the discussions about data processing. That is amusing because one very striking thing about the regulation, apart from the fact that we do not have it in front of us to discuss it, is that, in the form in which it will appear in law in the United Kingdom at the end of this process, the recitals will not be part of it. Therefore, his reliance on them is ironic to the point of being rather difficult to accept, but he made points of substance, so I think we will move over that.
Despite the rightful criticisms, there is a general feeling across the Committee that we need to do a bit more work on this. I think that we are on to something that is important enough to spend time on, and we are prepared to do that. We do not think that we are in a muddle on this—we think that there is an issue—but I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Clause 1 agreed.
Sexual Harassment in Parliament
My Lords, with the leave of the House, I will now repeat in the form of a Statement the Answer given by my right honourable friend the Leader of the House of Commons in response to an Urgent Question. The Statement is as follows:
“As you know, Mr Speaker, I was very keen to come to the Chamber and make a Statement today, but I am delighted to respond to the right honourable lady, and grateful to you for inviting me to provide a full response. It is absolutely right that the House must address the urgent issue of alleged mistreatment of staff by Members of Parliament. These allegations make clear that there is a vital need to provide better support and protection for the thousands of staff members working in Westminster and in constituency offices across the country. In tackling this problem, we also need to recognise that we have interns, work experience placements, House staff, clerks and civil servants, who all deserve to be afforded our care and our respect.
I can confirm that the Cabinet Office is urgently investigating reports of specific allegations of misconduct in relation to the Ministerial Code. I am well aware that the public rightly expect MPs to display the highest standards. As the Prime Minister outlined in her letter yesterday, there can be no place for harassment, abuse or misconduct in politics. Your age, gender or job title should have no bearing on the way you are treated in a modern workplace. Nobody is an exception to that.
As the Nolan principles outline, as public servants we must demonstrate accountability, openness and honesty in our behaviour. Regardless of role or position, a new approach will need to cover everyone working for Parliament. If someone is made to feel uncomfortable, or believes that others have acted inappropriately toward them, they should be able to contact an external, independent, specially trained support team via phone, the intranet or face to face, so that any issue can be raised confidentially, and appropriate advice and support can be given. Everyone in this House must be clear that whenever a serious allegation is made, the individual should go to the police and be supported in doing so. However, it is clear that the current system is inadequate. It is for Parliament to come together to resolve this, but the Government believe there should be some guiding principles.
First, as in any other workplace, everyone in Parliament should have the right to feel at ease as they go about their work, irrespective of position, age or seniority. Secondly, while we have had a confidential helpline in place for several years, it must now be strengthened as a dedicated support team, made more accessible, given more resources, and its roles and responsibilities highlighted to all who work here. Thirdly, the support team should have the ability to recommend onward referral of a case to ensure appropriate investigation and action takes place. Fourthly, the support team should recommend specialised pastoral support for anyone who is experiencing distress as a consequence of their treatment in the workplace. Fifthly, the support team should strongly recommend reporting any allegations which may be criminal directly to the police. Sixthly, and in addition, there may be further action which government and political parties themselves can take to ensure high standards of conduct and that inappropriate behaviour is properly dealt with. This is the very least we can do.
As the Prime Minister outlined yesterday in her letter to party leaders, we must establish a House-wide mediation service, complemented by a code of conduct and contractually binding grievance procedures, available for all MPs and Peers, and their staff, irrespective of their party banner. This will reinforce to those who work here—and to the public—that we are serious in our treatment of wrong doing and support for those who suffer it.
I know all party leaders will work together with the House to reach an agreement and get these changes in place as soon as possible. As Members of Parliament, our constituents will be rightly appalled at the thought that some representatives in Parliament may have acted in an entirely inappropriate way towards others. These reports risk bringing all of our offices into disrepute.
I know this is an issue of great concern to you, Mr Speaker, and I know that you will do everything you can to tackle this issue. I know that Members from all parties will want to work alongside you—to investigate every claim, provide the right support in the future and ensure this never happens again.
It is a right, not a privilege, to work in a safe and respectful environment. These plans will ensure that Parliament takes a zero-tolerance approach. Parliament must take action in days, not weeks”.
My Lords, I thank the noble Baroness for repeating the Answer to the Urgent Question today. It is clearly unacceptable and offensive to their office and to individuals for anyone, whether or not in a position of power, to act inappropriately towards another in a workplace. Such sexual and sleazy behaviour and abuse is highly intimidating for the person on the receiving end and it affects their colleagues.
This is not a party-political issue: it is a human and workplace issue that must concern us all. The workplace, especially here in Parliament, should always be one where the individual can give their best. No staff member or colleague should have to cope with or manage such inappropriate behaviour and no one should be frightened to speak up or make a complaint to do with any kind of harassment, bullying or sexual intimidation.
That means that the mechanisms for complaints, advice and support have to be in place. I welcome today’s Statement as a first step on this road. However, the third point of the guiding principles states that,
“the support team should have the ability to recommend onward referral of a case—to ensure appropriate investigation takes place”,
but I am not clear on how that will happen and what mechanisms the Government are suggesting or putting forward. Clearly the most serious complaints are a matter for the police but does the Leader of the House agree that, in dealing with any such complaints, the key has to be a process of good employment practices embedded in the whole culture of Parliament?
Does she further agree that it would be helpful for all political parties and the parliamentary authorities to publish their complaints procedures, so that anyone who finds themselves having to make a complaint can do so with the confidence of knowing how that complaint will be dealt with? Any such process has to be explicitly clear, sensitive and robust. I advise all staff and colleagues to be members of a trade union, which are experts in processes and procedures and are able to give advice.
Recent press reports of Ministers or ex-Ministers abusing their positions by behaving inappropriately damage not only those individuals but the institution of Parliament as a whole. From talking to colleagues I know that most parliamentarians treat their staff and colleagues with respect and decency and are appalled that such allegations have been made. However, there are those few who fail to meet appropriate standards. Parliament has always to aim for the highest standards.
I thank the noble Baroness for her excellent comments. She is absolutely right that this is not party-political but a human and workplace issue. Certainly her tone shows that we can and want to work together to ensure that we tackle inappropriate behaviour and that Parliament is an enjoyable place where people can come to work and feel safe.
She is right that the key will be the mechanisms and process. That is why we have set out the direction of travel today but we will need to work through the commissions with the House authorities, at speed, to ensure that we get a robust—and legally robust—procedure so that when people come forward with these kinds of allegations, which can be extremely difficult, they know that they will be treated fairly and properly, and that their comments will be properly reflected and action taken.
I assure her that I am looking forward to working with leaders across the House, the commission and, of course, our colleagues in the Commons. We have been very clear that this needs to be two-House-wide, working together. We need to come together as Parliament to ensure that we get the right processes in place.
My Lords, I too thank the noble Baroness the Leader of the House for repeating the Statement and indeed for the speed with which the Government have responded to the allegations that were reported over the weekend. As the noble Baroness, Lady Smith, has said, this is not a party -political issue and it is not even an issue for one House versus the other. The key line in the Statement with which we would all agree is, “There can be no place for harassment, abuse, or misconduct in politics”.
The truth is that political parties over a long period have been slightly slapdash in how they have dealt with staff and volunteers. They often operate under great pressure, so people have tended to look at inappropriate behaviour in a less serious light than they might have done in some other professions. I am pleased that the proposals include establishing a House-wide mediation service, although I hope that that means a Parliament-wide service, along with, “a code of conduct and contractually binding grievance procedures”.
My only questions concern process. I think that the noble Baroness said that as far as this House is concerned, the body that will take this forward is the House of Lords Commission. I should like to check whether that is indeed the intention. Also, has any thought been given to what dealing with this in a speedy manner might mean?
Again, I thank the noble Lord for his constructive comments. It will involve many of us working together. Our House of Lords Commission will need to be involved. I believe that the House of Commons Commission is meeting later today and this issue will be a key item of discussion. All of us on the commission will want to make sure that we can be involved in and oversee discussions, and of course the House authorities will also play a part. However, this will be very much a matter of cross-House working and it may be that we have to establish ways to ensure that dialogue can take place quickly between the two Houses, so that we move things along in a way that sometimes does not happen. I would not like to give the noble Lord an exact timetable because I do not have one at the moment, but I hope it is clear from the Statement that there is an urgency to this. We all agree on that and we will work together to move forward in a constructive way; that is certainly what we will be looking to do.
My Lords, if we are to have a procedure that results in adverse findings against an individual, perhaps I may ask my noble friend to ensure that we have due process. That involves having a proper appeal process where there is a re-hearing on the merits, preferably under a senior judicial figure. Does my noble friend remember the case of Neil Hamilton? I was in the House of Commons at the time and I am very far from certain that the process we had in place then was in any way fair.
My noble friend is absolutely right that it has to be a fair process for all involved so that we can be confident in the results. I am not aware of the details of the case he talked about, so I shall obviously bear that in mind. However, I can assure him that we want the process to be robust for everyone involved so that staff, MPs, Peers and the public can be confident that we are looking into these matters properly and dealing with them. I can give him that assurance.
My Lords, I am sure that the noble Baroness will agree that we should be careful not to reinvent the wheel. I was the chair of ACAS for seven years, and we did a lot of work on the issue of power relationships, which is what this is about. It was something I was used to in the universities where I worked; namely, the power relationship between academics and students. Similarly, it has to be said that it would happen in the old days in the trade union movement. There is nothing new under the sun about this issue, but what is shocking is that our procedures are so primitive. The noble Baroness has said herself that it can be extremely difficult for someone to complain. It is difficult to do so even under a good procedure, so where it is not good, it is important to foster a climate of support so that individuals feel supported when they make a complaint. After all, in many cases it is they who will be sacrificing their rather junior careers. Will the Minister go to organisations which have experience of this, and confirm that we should attempt to create a climate of support, so that complainants feel they are not alone?
I entirely agree. We do not want to reinvent the wheel and we should draw on best practice. That is certainly something we will look to do. I entirely agree with the noble Baroness about culture; that is extremely important. We need to be leaders in helping to bring that culture change about. One of the other principles we mentioned was that support teams should recommend specialised pastoral support to anyone in distress, because having support during this time is extremely important. That is one of the elements and principles we will try to include in any new process that is developed.
My Lords, like many noble Lords in the Chamber I have worked in and out of this building for the last 40 years, but unlike most I was a very young PA when I started. I was regularly approached by what one might call the usual suspects, who are well known to most of us. I very much welcome the measures set out today. Forty years ago there were only 27 women MPs, totalling I think 4% of Parliament. My guess is that today it is a better environment than it was, although I am not denying that there is inappropriate behaviour. Across Parliament there are more than 200 women MPs, or about 30% of the total. Does my noble friend agree that a better gender balance will help to normalise the work environment and will lead to better behaviour, culture and decisions across the board?
I thank my noble friend and I pay tribute from this side of the House to the work she has done on this. She is absolutely right to point out the changing gender balance in both Houses. This House is a leader in this regard, with two female Leaders of the House, a lot of female representatives on our Front Bench and two female Speakers. As a House we can be proud of the work we have done on gender balance. We have more to do, but we can be a very good influence around this building.
My Lords, the Statement referred to the fact that a Minister has been referred to the Cabinet Office to see whether he has violated the Ministerial Code. Will the Leader of the House tell us which provision of the Ministerial Code is in play here?
I cannot go into the details of the investigation, but the Ministerial Code is clear that one of the things Ministers have an obligation to do is protect the integrity of public life, so we shall have to wait until the investigation concludes.
My Lords, will my noble friend explain what the relationship of the proposed new mediation service will be with the current HR provision? At the moment, any side, working for either the employer or employee—but particularly the employee, who is in a vulnerable position—can raise a grievance against their employer. How will this mediation service play into that existing system? What provision will be made against any potentially malicious allegations that may be brought on political grounds?
The details of the interaction are obviously something we will need to look at, but we are absolutely clear that we do not want a confused system. It must be clear where people with specific allegations or concerns should go, and that will need to be looked at. My noble friend’s point links to that made earlier by my noble friend Lord Hailsham. We need a robust system that both sides feel does the job well and properly, so we can all be clear that the decisions made have the trust of everybody involved in the process.
I strongly support this approach. It is long overdue. Having tried to deal with it before, I have a lot of sympathy with it. We are engaged in a very complicated process involving not just Members of both Houses, but members of political parties and relationships between parties and Members. On top of that, you have the complication that every Member—particularly in the House of Commons, but also here—is also an individual employer. There is not necessarily a clearly drawn-up contract of employment; it varies immensely. Going down the road of having a contract, which I am not unsympathetic to, has payment implications, which opens up a whole can of worms. I really want to support this as it is very important, but there is a complex set arrangements here that we need to tackle right the way through.
The noble Lord has highlighted exactly the complexity. It is critical that we get it right, which is why I did not want to give a false timetable. We cannot rush this, only to get it wrong, but we want to move along because we consider it important. I have been in a number of meetings today, and the points the noble Lord has raised are certainly things we are all well aware of. We will work across the House and across parties to make sure we have a robust system in place that Members, staff and the public can have faith in.
Do my noble friend and her colleagues think that standards of conduct have fallen, or that we are now facing up to the way things have always been and taking some action? Would these arrangements have any effect on relationships between Ministers and their officials? After all, I think we can all remember one rather notorious case—indeed, the noble Lord involved in it is not present today, I am not surprised to say—when certain things went on in a pretty blatant way during working time, paid for by the taxpayer.
My broad point is that we are determined to protect staff who work for MPs and Peers and want to make sure that people who work in the two Houses are treated properly and fairly. That is what we intend to do. We want to maintain the highest standards of behaviour within Parliament—I think everyone agrees with that.
Order. As noble Lords will know, there are supposed to be only 10 minutes of questions and we should try to get our business back on track. That is not because I want to interrupt this particular process, but I think we should go back into Committee to continue with the Bill, as the Statement that is to follow has not yet been started in the other place.
Data Protection Bill [HL]
Committee (1st Day) (Continued)
Clause 2: Terms relating to the processing of personal data
2: Clause 2, page 2, line 4, at end insert—
“( ) In this Act, unless the context otherwise requires—(a) “obtaining” or “recording”, in relation to personal data, includes obtaining or recording the information to be contained in the data, and(b) “using” or “disclosing”, in relation to personal data, includes using or disclosing the information contained in the data.”
My Lords, right from the outset, I had better declare that this is a probing amendment. I shudder to think of another chastisement from the noble Lord, Lord Ashton —that would be too terrible to contemplate. Chastisement from the noble Baroness? Even better.
The amendment is about whether we should put the Bill on all fours with the Data Protection Act 1998. Personal data is defined in Clause 2(2), and then Clause 2(4) goes on to talk about “processing” of data, in terms of requiring the personal data to be recorded in order that it can be subject to,
“an operation … performed on personal data”.
It follows that, if the information is not recorded, it is not capable of being processed under the Bill as it cannot be subject to an operation.
Where I am slightly confused is looking at article 5(1)(f) of the GDPR, which talks about personal data being,
“processed in a manner that ensures appropriate security”,
which means that security obligations apply to recorded information about an individual and perhaps not to unrecorded information, which may be, for instance, disclosed in a conversation. If a controller fails to control his staff and a staff member discloses information in an unrecorded form, is that controller in breach of the security principle?
It would have been crystal clear in the Data Protection Act 1998 because Section 1(2) of the DPA closes that kind of loophole. That is exactly the wording that has been adopted in the amendment. Perhaps the Minister can explain whether we are incapable of using that definition because it is the GDPR or simply because we have failed to incorporate and bring forward equivalent provisions from the 1998 Act. I beg to move.
My Lords, I support the amendment in the names of the noble Lords, Lord Clement-Jones and Lord McNally. I will speak also to Amendments 3 and 9 in this group. This is a wide-ranging, rather stretching group covering a lot of detail, and I am sure the noble Baroness the Minister, who is making her first appearance on this Bill, will be able to cope with it with ease and will not have to resort to having meetings outside or anything; it will be a straight answer. I mean no disrespect to the noble Lord the Minister who spoke earlier.
Amendment 3 is a probing amendment. I make that absolutely clear, like the noble Lord, Lord Clement-Jones, did. It is about the rather disputed issue, as I understand it, of the status that many of the big tech companies that operate in the United Kingdom have in relation to the Act. Are they, as I think I have heard in other meetings, data controllers in the sense that the Bill sets out to achieve; in other words, are they responsible for all the elements that will be raised in the Bill and in the GDPR in relation to that issue? I am looking for a clear and straightforward answer on that, because it seems to me that there has been too much evasion and difficulty in pinning down some of the definitional points that this issue raises.
Having established that they are data controllers and that the material and data that they go through are subject to the Bill in its entirety—and, by implication, the GDPR—in which territory will this power exist? Obviously, that has relevance both pre and post Brexit. For instance, I asked the representatives of a large company who came in to brief us about their concerns about the Bill the very same question and received the answer that they regarded themselves as being European data controllers, which was a strange combination of thinking, and that they had selected, because it seemed appropriate at the time—again, I would be interested in having more information on that if it is available—that the Irish Information Commissioner would be responsible for any activities that were regulated under the Act and they would look to that body. Irrespective of whether or not that is true, and I suspect it is, that leads to a question about the role the Information Commissioner in the United Kingdom has in relation to companies which choose a European domicile and have a responsible information commissioner who is not in this country and therefore not subject to any regulatory or statutory provisions provided by this Parliament. There is no particular reason why this should be wrong. I am not in any sense making accusations that would arise from that, but it is important that we have on the record a very clear narrative on this point because it will raise a lot of questions if we do not.
Amendment 9 has already been referred to in the debate on Amendment 1, in relation to where the recitals that accompany the GDPR are going to end up. Reflecting on what was said by the Minister in that debate, I found that very helpful in answering the questions that Amendment 4A raised. Therefore, it poses another question about why the Government decided—well, they have no choice—to have an arrangement under which the GDPR comes into play, as required, on 25 May 2018. However, at that point the recitals will not be brought into effect. I understand that the recitals do not have statutory power in the GDPR, but it is quite clear, from reading around on this subject and hearing of cases already raised in relation to data processing, that they are helpful to those who have side issues arising from the GDPR. The recitals help them to understand what the legislation actually means and, without them, there may well be a problem, at the least, in getting a consistency of approach across the EU. It is therefore important that we should know where the recitals are going to end up. If they are not being brought in, to what extent can they be relied on and, if so, by whom?
My Lords, I am grateful to the noble Lords, Lord Clement-Jones and Lord McNally, for the opportunity to explain the meaning of data processing. As the noble Lord, Lord Clement-Jones, has explained, Amendment 2 would import words in relation to this term from Section 1(2) of the Data Protection Act. It might be helpful if I explain that the definition in Clause 2(4) of the Bill is taken directly from article 4(2) of the GDPR. Importantly—the noble Lord, Lord Clement-Jones, was right to mention this—the extent to which we can redefine or reinterpret it is therefore limited.
Having said that, the current definition of data processing already refers to,
“any operation or set of operations which is performed on personal data, or on sets of personal data”.
That is a very broad term. If somebody obtained, recorded, used or disclosed all or any part of the data relating to individuals, I have no doubt and am confident that it would be covered by the existing definition.
I go on to the amendments in the name of the noble Lord, Lord Stevenson, who I thank for his kind words about us being together at the Dispatch Box. I greatly look forward to it, too. As he explained, Amendment 3 aims to clarify that the processing of data includes processing undertaken by information society services, such as commercial websites. Article 4 of the GDPR and Clause 2 make it quite clear that the term processing applies to any automated and certain non-automated processing. There is no doubt that this would include information society services.
I am sorry to interrupt so aggressively and early in the Minister’s response, but a word was used that I did not understand and I therefore need to come back. In films, we often find that if you talk to an American film executive about whether a film is successful, compared with what happens if you talk to a British executive in a similar situation, they will use “quite” in completely different senses. Britain uses “quite” to mean, “That’s okay”. But if Americans say, “That film was quite successful”, it means, “Blimey—you really have hit the box office”. In which sense was the Minister using it?
I am using it in the English sense. The noble Lord interrupted me, but I wanted to go on to say that, because of this, we can see no reason to distinguish information society services from any other type of data controller or processor.
Additionally, the definition of controller in the GDPR requires a case-by-case analysis to determine who the controller is, but it is likely that social media companies are controllers. Although the person posting personal data online is a controller, social media companies control personal data: in the context of activities which involve collecting such data; in retrieving, recording and organising it for indexing purposes; in storing it on their services; and in disclosing and making it available to users in the form of lists of search results. The Information Commissioner has also published guidance on this matter suggesting that, if a social media site’s operator has a moderating role over the site’s contents, then it is likely to be a controller.
In respect of Amendment 9, the recitals to the GDPR do not have normative effect—they are more akin to Explanatory Notes—and there is no requirement for the UK to enshrine them in legislation. In some places in the Bill we have adopted some language in the recitals to aid with clarity. For example, in Clause 8 we borrow from the recitals to make it clear that the consent of the holder of parental responsibility should not be necessary in the context of preventive or counselling services offered directly to a child. We will return to this later in Amendment 17 in another group. It is important to say that recitals do not contain substantive law, nor can they override the express language of a regulation. I hope my clarification on this issue is sufficient, and I urge the noble Lord to withdraw his amendment.
My Lords, I was hesitating as I thought perhaps the noble Lord, Lord Stevenson, might want to come back. I must admit that that was one of the most interesting answers in the light of what the noble Lord, Lord Ashton, said in the previous debate. He prayed in aid two recitals to the GDPR and yet they do not have “normative effect”, which is extremely interesting. I feel another amendment coming on in due course—at the appropriate time, of course. The noble Lord, Lord Ashton, was not in his place when I said I feared another chastisement from him, but that is why I emphasised that my amendment is purely a probing amendment.
Returning to what the Minister said about that, I think she is really saying that the GDPR is wide enough in article 4 to cover conversations, casual disclosure of information and so on and that the information does not have to be structured or in recorded form. That is a very useful explanation that people will rely on when they come to look at the Act in future years. I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Amendment 3 not moved.
Clause 2 agreed.
Deaths in Police Custody
My Lords, with the leave of the House, I will repeat a Statement made in the other place by my honourable friend the Minister for Policing and the Fire Service.
“With permission, Mr Speaker, I would like to make a Statement to the House on the publication of Dame Elish Angiolini’s Report of the Independent Review of Deaths and Serious Incidents in Police Custody, and the Government’s substantive response to the report and its recommendations.
In 2015, the right honourable Theresa May met with the relatives of Olaseni Lewis and Sean Rigg, who had died tragically in police custody. The families’ experiences left her in no doubt that there was significant work to do—not only to prevent deaths in police custody but also, where they occur, to ensure that the families are treated with dignity and compassion and have meaningful involvement and support in their difficult journey to find answers about what happened to their loved ones.
I know that everyone in this House will want to join me in expressing our sympathy and sorrow for all those families who have lost loved ones who have died in police custody.
It is essential that deaths and serious incidents in police custody are reduced as far as possible and, where they occur, that they are investigated thoroughly, agencies are held to account, lessons are learned and bereaved families are provided with the support that they need. I know that the House will want to join me in acknowledging the incredible efforts of our country’s police forces and officers, the vast majority of whom do their jobs well, to give substance to the Peelian principle of policing by consent. However, when things go wrong, policing by consent can have meaning only where swift action is taken to find the truth, to expose institutional failings, and to tackle any conduct issues where these are found.
It is for these reasons that in 2015, the Government commissioned the independent review of deaths and serious incidents in police custody, and appointed Dame Elish as its independent chair. Earlier this year, Dame Elish concluded her review and today, having carefully considered the review and its recommendations, the Government are publishing both her report and the Government’s response.
The report is considerable in scope and makes 110 recommendations for improvement covering every aspect of procedures and processes surrounding deaths and serious incidents in police custody. It is particularly valuable in affording a central role to the perspective of bereaved families and demonstrating beyond doubt that their experiences offer a rich source of learning for the police, investigatory bodies, coroners and many others with a role to play when these tragic incidents occur.
In terms of the Government’s response, I stress to the House that the issues identified in Dame Elish’s report point to the need for reform in a number of areas where we have begun or set in motion work today. But her report also highlights complex issues for which there are no easy answers at this time. The Government response which I outline today is the start of a journey: a journey which will see a focused programme of work to address the problems identified.
As the House will understand, I do not intend to go into the detail of the Government’s response in respect of all of the report’s recommendations. Instead, I will highlight key areas of concern and our approach.
The first relates to inquests. These are intended to be inquisitorial, to find out the facts of a death, and should not be adversarial. Despite this, Dame Elish finds that inquests currently involve legal representation for interested persons, particularly those connected to the police force, and little or no help for bereaved families. The Government recognise that in some circumstances, legal advice and representation may be necessary in the inquest process. That is why we have protected legal aid for advice in the lead-up to and during inquest hearings.
However, it is also clear that the system needs simplifying, so that legal representation is not necessary in all cases, and the Government will investigate how we can meet this ambition and take this forward in the coming months.
As an initial step towards addressing these concerns and ensuring that the bereaved can have confidence in the arrangements, the Lord Chancellor will review the existing guidance so that it is clear that the starting presumption is that legal aid should be awarded for representation of the bereaved at an inquest following a non-natural death or suicide of a person detained by police or in prison, subject to the overarching discretion of the Director of Legal Aid Casework. It will also be made clear that in exercising the discretion to disregard the means test, consideration should be given to the distress and anxiety caused to families of the bereaved in having to fill out complex forms to establish financial means following the death of a loved one. This work will be completed by the end of the year.
As a next step, the Lord Chancellor will also consider the issue of publicly funded legal advice and representation at inquests, particularly the application of the means test in these cases. This will form part of the upcoming post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to be published next year.
However, while there are cases where legal support is required, we believe that we can go further towards building a non-adversarial inquest system which is better for all involved. The Lord Chancellor will also consider, to the same timescale as the legal aid review, reducing the number of lawyers who attend inquests, without compromising fairness, and making inquests more sympathetic to the needs of the bereaved.
This country is proud to have a world-leading police force. The police put themselves in harm’s way to protect the public with honesty and integrity, upholding the values set out in the policing code of ethics. Police integrity and accountability are central to public confidence in policing, and a system that holds police officers to account helps to guarantee this. The Government must ensure that the public have confidence in the police to serve our communities and keep us safe.
When things go wrong, swift action is needed to expose and tackle any misconduct. Action must be open, fair and robust. The Government will therefore implement legislation later this year to extend the disciplinary system to former officers so that, where serious wrongdoing is alleged, an investigation and subsequent disciplinary proceedings can continue until their conclusion, even when an officer has left the force. We will also make publicly available a statutory police barred list of officers, special constables and staff who have been dismissed from the force and are barred from policing.
The Independent Police Complaints Commission has undergone a multiyear major change programme that has seen a fivefold increase in the number of independent investigations that it opens each year, compared to 2013-14. On Friday 20 October we reached another major milestone in reforming the organisation with the announcement of the first director-general of the new Independent Office of Police Conduct. The new director-general will start in January 2018 when the reforms to the IPCC’s governance are implemented and it is officially renamed the IOPC.
The Government are strengthening safeguards in the custody environment. It has been clear that police custody is no place for children. Provisions in the Policing and Crime Act 2017, shortly to be brought into force, will make it unlawful to use a police station as a place of safety for anyone under 18 years of age in any circumstances, and further restrict the use of police stations as a place of safety for people aged 18 and over.
The work of the College of Policing and the National Police Chiefs Council to improve training and guidance for police officers and staff in this area is to be commended. Drawing also on learning from the IPCC’s independent investigations, this has contributed to a significant reduction in the number of deaths in custody in recent years.
In other areas, however, improvements require us to tackle entrenched and long-standing problems that cut across multiple agencies’ responsibilities. The Government will not shy away from the long-term collaborative work that that requires. That is why we have commissioned the Ministerial Council on Deaths in Custody to play a leading role in considering the most complex of Dame Elish’s recommendations: those relating to healthcare in police custody, inquests and support for families. The ministerial council is uniquely placed to drive progress in these areas and has been reformed to ensure an increased focus on effectively tackling the issues that matter most. It brings together not only Ministers from the Home Office, the Department of Health and the Ministry of Justice but leading practitioners from the fields of policing, health, justice and the third sector. In addition, its work is informed by an independent advisory panel that brings together eminent experts in the fields of law, human rights, medicine and mental health. This will introduce necessary oversight and external challenge to ensure that lessons are learnt. In my role as co-chair of the ministerial board, I am personally committed to help to drive through the new work programme for the council and I will do so in a way that is transparent to the families.
Every death in police custody is a tragedy and we must do all that we can to prevent them. The independent review of deaths and serious incidents in police custody is a major step forward in our efforts to better understand this issue and bring about meaningful and lasting change. I thank Dame Elish Angiolini for her remarkable contribution to this important issue, as well as Deborah Coles for her continuing commitment to preventing deaths in police custody. I particularly thank the bereaved families who contributed to Dame Elish’s review; they have laid their experiences bare in order for us to learn from them and to spare other families the suffering that they have endured, and I cannot commend them highly enough.
In addition to publication on GOV.UK, I will place in the House Library copies of The Report of the Independent Review of Deaths and Serious Incidents in Police Custody, its accompanying research report, the Government’s response to the review and the Concordat on Children in Custody. I commend this Statement to the House”.
I thank the Minister for repeating the Statement made earlier in the House of Commons. I agree with the Statement’s acknowledgement of the tremendous efforts of our police forces and officers.
The independent review by Dame Elish Angiolini QC into deaths and serious incidents in police custody was commissioned by the then Home Secretary in July 2015 to alleviate the pain and suffering of families still looking for answers. We thank Dame Elish for her comprehensive report and all those who contributed to it. However, will the Minister say when that report was received by the Home Secretary, as there appears to have been a lengthy delay between the report being received and the independent report being placed in the public arena—a delay which does not seem entirely consistent with the objective of alleviating the pain and suffering of families still looking for answers? What parts of the report, bearing in mind the delay, would have caused the Government a problem if the report had been placed in the public arena much earlier? Remarkably, after all the delay, the Government still do not intend to give their response to the recommendations, including the ones on healthcare in police custody, inquests and support for families. I hope the words “kicking” and “long grass” do not prove to be all too accurate.
The report is critical of the current processes, protocols and procedures for investigating deaths in police custody and of the role and approach of the agencies and organisations involved. It makes a considerable number of recommendations for speeding up the process of investigating deaths in police custody, including following contact with the police, in the light of the lengthy delays that currently occur, in contrast to the urgency, haste and mindset that is normally associated with potential and actual murder investigations. The delay in the current process leads to frustration, anger and suspicion that justice is not being done, and does not exactly enhance confidence and trust in the police, particularly among and within the families and communities most directly affected. The campaigning group Inquest has, I believe, said that more than 1,000 people have died in police custody or following contact with the police since 1990. No police officer apparently has been convicted in a criminal court in connection with any of those deaths.
The report makes a number of recommendations. For example, it states:
“For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not ‘empty and rhetorical’ there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing”.
I would have to say that, from the Statement, the Government appear to be a little lukewarm on implementing this recommendation in full. The Statement says, for example, that legal aid may be necessary in some circumstances. There is reference later on to “considering” the issue of publicly funded legal advice and representation at inquests.
The recommendations also include the comment that NHS commissioning of healthcare in police custody was due to have commenced in April 2016 but was halted by the Government earlier in the year. This report strongly recommends that this policy is reinstated and implemented. Perhaps the Minister can say why the commissioning of healthcare in police custody was halted by the Government, particularly since the report seems to have commented somewhat adversely on it.
The report also addresses the extent to which police use of restraints against detainees was identified as a cause of death by post-mortem reports in 10% of deaths in police custody between 2004-05 and 2014-15. It also says that a significant proportion of deaths involved people with mental health needs, and the report makes specific recommendations providing for change in how such people are treated, as indeed it does for those who have issues with drugs and/or alcohol. Drugs and/or alcohol featured as causes in around half of deaths, and an even higher proportion of those who died had an association with drugs or alcohol—namely, 82%.
The Statement indicates exactly what actions the Home Secretary now intends to take—and, I would have to say, not take—in the light of the report’s recommendations. By when do the Government expect to see a considerable improvement in the practices, procedures and mindsets identified in the independent review as contributing to and exacerbating the impact of the current delays in investigations into deaths in police custody? Against what criteria will the Government assess the effectiveness or otherwise of the actions that they are announcing today in light of the review? What are the specific goals that the Government expect their actions announced today to deliver? Who will be responsible for ensuring that those goals are delivered? What, if any, additional resources will be made available to implement even the actions announced today in the Statement, let alone if we implemented all the recommendations set out in the report?
In the light of the recommendation in the report, can the Government say any more—since I have questioned them—about the arrangements that will be introduced to make sure that there is proper legal representation for the families of those who have died in police custody at coroners’ court inquest hearings? Surely, the Government can be a bit more specific than they have been, because this report was submitted many months ago. Indeed, that applies to most of the recommendations in the report, bearing in mind that they have said that they do not intend to give a detailed response to all the recommendations today—and, indeed, they have not.
The report states that its recommendations are necessary to minimise as far as possible the risk of deaths and serious incidents in police custody occurring in future and to ensure that, when they do, procedures are in place that are efficient, effective, humane and command public confidence. It is now principally, although I accept not solely, up to the Government to make sure that those objectives are achieved within the shortest possible timescale. So far, the Government will appear to many to have dragged and still be dragging their feet. To allay those fears, will the Government report back to this House within no more than six months on the progress being made on the implementation of the recommendations in this comprehensive and valuable independent report?
My Lords, I, too, thank the Minister for repeating the Statement and express our sympathy to all those who have lost loved ones as a result of deaths in police custody. I declare an interest in that, when I was borough commander in Lambeth in south London, there were a number of deaths in custody. It is important to express that to the House, because the impact that it can have on the officers involved is also something that needs to be taken into account—particularly those officers who have acted in good faith and have done nothing wrong.
There are 120 recommendations, and it would be impossible to cover the whole ground, but there are a couple of issues that I want to highlight. The Minister has said, and the report talks about the fact that inquests are intended to be inquisitorial and should not be adversarial. When I represented the family of somebody whose son died as a result of a police action, it was the most adversarial court appearance that I have ever appeared in, bearing in mind that the overall majority of my experience had been in adversarial criminal courts. Surely, in those circumstances, and unless and until that situation is changed, families of those who have lost loved ones at the hands of the police should receive equality of arms in terms of legal representation with the police as recommended in this review—no ifs, no buts and no conditions.
On another issue, 15 or more years ago I was the Association of Chief Police Officers lead on mental health issues in policing. Following a number of deaths in police custody, training was introduced on the safe restraint of those suffering from mental illness. That was 15 years ago. Why does this report say that:
“National policing policy, practice and training must reflect the now widely evident position that the use of force and restraint against anyone in mental health crisis … poses a life threatening risk”?
This has been evident for decades, yet people are still dying in those circumstances at the hands of the police. What are the Government going to do differently this time to make a real difference?
My Lords, I apologise for being a bit slow standing up, which is probably why noble Lords thought they could do so.
I thank the two noble Lords for their questions on this extensive report, which has 110 recommendations. The noble Lord, Lord Rosser, started with the point that we received the report in January and he asked why it had taken so long to publish our response. There is no mysterious reason for this: we thought we would prioritise thoroughness over speed and we have considered the report carefully. It has been an incredibly busy year in Parliament and it is important that this report should be published when it can receive all the attention it deserves.
The Government commissioned the review to shine a light on the issue of deaths in police custody, and that is precisely what it does. As the noble Lord said, Theresa May—now Prime Minister, then Home Secretary—commissioned it. It is therefore proper that the Government respond to it thoroughly. The noble Lord asked why we have not responded to aspects such as healthcare in police custody, inquests and support for families. We have commissioned the Ministerial Council on Deaths in Custody to play a leading role in considering these, which are the most complex of Dame Elish’s recommendations. He also asked why we stated that legal aid “may” be needed and wondered whether there was some doubt about it. I will clarify by repeating, from the Statement, that,
“the Lord Chancellor will review the existing guidance so that it is clear that the starting presumption is that legal aid should be awarded for representation of the bereaved at an inquest following the non-natural death or suicide of a person detained by police or in prison, subject to the overarching discretion of the Director of Legal Aid Casework”.
I also said that, in exercising that discretion,
“consideration should be given to the distress and anxiety caused to families of the bereaved in having to fill out complex forms to establish financial means following the death of a loved one. This work will be completed by the end of the year”.
I think that our intention is clear; I would not want noble Lords to think it was not.
The noble Lord, Lord Rosser, also asked why the Government dropped plans to bring NHS commissioning into police custody. Police and crime commissioners are well placed to commission the most appropriate healthcare and forensic services to meet the needs of their custody populations. The Government are determined that PCCs should retain full flexibility to prioritise their resources according to those needs.
The noble Lord, Lord Rosser, talked about the 10% of deaths due to restraint. I do not have the exact figures for those deaths and I would not want to put out an inaccurate one today. However, there are procedures, processes and training in place to ensure that restraint is administered appropriately and proportionately, and reporting procedures in place for when restraint is undertaken. The treatment of people with mental health problems has been a particular focus. In fact, I recall that some 15 years ago, I campaigned for places of safety—not in custody but in a mental health setting—for people who found themselves in police custody inappropriately. What we have announced is absolutely the right way to go, in terms of no child and wherever possible no adult with a mental health problem being detained in police custody. We debated this at length during the passage of the then Policing and Crime Bill. The noble Lord, Lord Rosser, asked about updating the House on progress in six months. As I said, we have commissioned the ministerial board on deaths in custody to oversee the implementation of the measure, and the board includes external stakeholders who will hold the Government to account on progress.
The noble Lord, Lord Paddick, talked about the effect that a death in police custody has on police officers. He is well equipped to make that point. We praise the police for what they do because they carry out some very difficult jobs. We sometimes forget the effect on them when somebody dies in police custody. I can well appreciate that an adversarial situation will arise when a policeman has to tell a family that their child has died in police custody.
The noble Lord, Lord Paddick, also talked about coroners’ courts being adversarial and said that families should receive publicly funded legal representation. As I said, we will consider a number of measures to meet the challenge of making inquests less adversarial, including reducing the number of lawyers who attend, with the aim of making inquests more sympathetic to the needs of the people they are there for—the bereaved.
My Lords, I declare my interest as a former president of the Police Superintendents’ Association. Does the Minister agree that the police service is often the agency of last resort, and that many people who find themselves in police custody should not be there and should be dealt with by other agencies? That is not the fault of the police, of course, and is often a matter of funding and resources in many other areas. Does she also agree that one of the difficulties is being open and honest with the public? Historically, the police service, like many organisations, has closed ranks. The police service needs to be far more open and honest with the public. I think it is moving this way and I hope that issue is addressed in the report. I like to see senior officers prepared to go on television and make statements. Obviously, they should not disclose everything as we do not want that to affect the judicial system or judicial process. However, it is gratifying to members of the public, particularly grieving families, if the police appear to be open, honest and transparent without, as I say, compromising an investigation. There is a lot to welcome in the report. As has been suggested, I hope that the Government implement its provisions as soon as possible.
I thank the noble Lord for his points about openness and honesty with the public. Quite often, the heartache of bereaved families is made worse by a feeling that perhaps people have not been open and honest with them. A theme runs through the Government’s response—and, indeed, through Dame Elish’s report itself—which talks about transparency in the whole process. Therefore I totally agree, as do the Government, with the noble Lord’s point.
The noble Lord also talked about police services as the agency of last resort. If I learned anything in local government, it was about the multiagency approach of services working together. Whether in the custody arena or in child protection, when agencies work together and place people appropriately, that starts to end this system of people literally being dumped in the first place that people think of. That particularly applies to people with mental health problems, which is why I was so keen all those years ago to see places of safety established, and I am very pleased now to see that wherever possible, no child or adult with a mental health problem will be placed in police custody.
First, this is a welcome report. Secondly, however, I wonder whether the Minister will agree with me that the weakest part of its recommendations is about the largest number of deaths, which is the rising number of deaths after people are released from police custody. The numbers are between 60 and 70 a year for the last three years of people committing suicide at the end of police custody. A lot of this will of course be based on more people being arrested for offences involving child indecency. The report notes rather drily that this is a “holistic” issue and not just a matter for the police. That is absolutely right, but there are no proper recommendations about what will be done about that level of deaths, which far exceeds any of the other statistics in the report.
The noble Lord makes a fair point about people who die post-police custody, which can occur because of a number of different factors. If there is a death after custody, that will still be looked into. I will have to write to him about the specifics.
My Lords, as one who used to participate in many inquests, I urge on my noble friend the importance of ensuring publicly funded representation at inquests. It is an important way of holding the police to account and scrutinising their actions, thus giving acceptability to the decision of the coroner. I suggest that the coroner should be the determinative voice in deciding whether public funding should be available. It would be good if this process extended not just to deaths in custody but to deaths as a result of police action.
My Lords, I very much welcome the report; I have simply read the executive summary. It is obviously important to respond well after death occurs, but equally, arguably, it is even more important to put in place measures to reduce the possibility of death. This is where the healthcare provision in the police service is especially important. Given that the NHS has a direct responsibility to provide healthcare in prisons but does not have an equivalent responsibility for those in police care, and given that for half the people the cause of death is alcohol and drug-related, is there not a need to join up A&E, the police, the whole NHS and police support? It is no doubt complex, but at the heart of this lies quite a simple issue. This ought to be brought within the ambit of the NHS, which is the case with prisons.
The right reverend Prelate is correct that while it is complex, it is incredibly simple. We have dealt with this sort of multiagency approach in other public service areas in the past. He is also right to talk about the approach to drugs and alcohol and the possibility that misuse can lead to death in custody. Of course, a range of various treatments is already available in prisons, but the Government will certainly consider this in due course.
My Lords, as a former chair of the Independent Advisory Panel on Deaths in Custody, and as someone who gave evidence to Dame Elish, I very much welcome her report. However, I am somewhat disappointed that after 11 months of consideration, the Government’s response—although quite voluminous—is quite so thin. Two of its proposals are to set up another two working groups. What is the point of setting up an independent review, considering that for 11 months without saying a word, and then setting up two further working parties to look at several aspects? The real issue is that many of these lessons have been spelled out time and time again in the inquests that have taken place into people who have unfortunately died in police custody. What is the process the Government see going forward to ensure that lessons that arise from an individual death are taken on board, not just in the police force area where the death occurs but more generally?
Secondly, on the question of the inquests, I remember vividly talking to the families of those whose loved ones died in the custody of the state. They described how every single person who was in any way engaged in that death—every police officer, the police force concerned, any health workers, and so on—would all be independently represented at the cost of the state. However, the individuals concerned—the families, who might have to agree among themselves as to which members would be there because of shortage of funds—were not automatically represented. Is it not time that the Government, rather than talking about legal aid, which will presumably diminish the pot for everyone else, are quite clear that these individuals and families should be represented at public expense?
The Government’s response is very much empathetic to the fact that the families of people who died in custody generally feel that they have come off worse through the inquest and representation processes and the financial ability to pay. At the moment, 50% of people are entitled to legal aid, while the other 50% might feel that they are short-changed when it comes to this sort of process. More than that, however, they are also bereaved and probably in an environment that they have never been in before. The Government are alive to that, which is why they commissioned this report back in 2015. The working groups will see that the work goes forward, and it is right to do that. On the wider learning, Bishop James’s report will come out on Wednesday, which I am sure will give insight not only into Hillsborough but into the wider lessons to be learned. Every time we carry out these reviews we attempt to learn the lessons of the past and we hope that they do not happen again.
My Lords, the report refers to the disproportionately high numbers of black men in restraint-related deaths, often in contentious circumstances. That is a serious issue because it connects so vividly with the perception many in the BAME community have of the police service. As the report recommends:
“Statistics should be published breaking down restraint related deaths by ethnicity”.
Can my noble friend please outline whether that recommendation will be accepted and, if it is, will it be recorded along with the race disparity audit statistics so that there is one central point with all those ethnicity statistics together?
My noble friend mentioned that third sector groups would be involved in the ministerial council on this issue. Is a means proposed for the ministerial council to engage with the many groups that have existed in relation to deaths in custody, particularly within the black and minority ethnic community, because of the resonance that they have, as the report outlines?
My Lords, from 1 April this year police forces across England and Wales have commenced the recording of a broad range of data following each instance in which force has been used, including the reason force was used, the injury data, the gender, ethnicity and perceived mental health of the subject involved, and the location and outcome of the incident. The use-of-force data collection system will remain under review to ensure that it continues to be fit for purpose, including through a programme board attended by the Home Office and led by the national police lead for use-of-force data. The publication of data on officers’ use of force will provide unprecedented transparency and accountability, as well as insight into the challenges faced by the police as they perform their duties. In the longer term, it will also provide an evidence base to support the development of tactics, training and equipment to enhance everyone’s safety.
My Lords, paragraph 45 of the executive summary says that a key theme to emerge from this review is the failure to learn lessons and to properly consider and implement recommendations from previous reports and studies. In the light of that, there is a recommendation for an independent office of compliance which should be answerable to Parliament and tasked with the dissemination of learning, the implementation of that learning, monitoring the consistency and application at a national level, and compliance with inquest outcomes and recommendations. Are the Government minded to set up that independent body which is accountable to Parliament so that lessons are learned and implemented?
My Lords, I do not know whether this will entirely answer the noble Lord’s question. I suspect that it may not, in which case I shall write to him afterwards. The independent office for police conduct and the existing commission structure will be replaced with a new single head—the director-general—with ultimate responsibility for all investigative decisions. This position is barred to anyone with a policing background—hence the independence. The director-general will have statutory powers to determine which posts in the IOPC are barred to former police. From the noble Lord’s gesture, I think that I shall write to him.
My Lords, three things leapt out at me from the report—things which are lessons learned in the past but which are apparently still unlearned. The first is the disproportionate racial element to the deaths—the fact that young black men seem extremely vulnerable to police interventions. The second is the idea of having cameras in police vans. I have completely forgotten the third, but in relation to the first two, surely these things have been learned before. Why is there still a problem? Why is it still happening and, to repeat the question from the noble Lord, Lord Paddick, what are this Government going to do differently?
I am glad that the noble Baroness forgets parts of questions because I forget parts of answers. In terms of whether black and minority ethnic people are more likely to die in police custody, the report commissioned by Dame Elish found that deaths in custody are representative of the detainee population and that the proportion of black people who die in police custody is lower than the proportion arrested for notifiable offences. In addition, in 2011 the IPCC published the results of a 10-year study that it had carried out into deaths in custody from 1998-98 to 2008-09. It found that 22 deaths—that is, 7% of deaths—were of black individuals. The report noted that the ethnicity of the deceased in police custody was broadly in line with the ethnic demographic of detainees. On the question of cameras in police vans, I shall have to come back to the noble Baroness.
Does my noble friend accept that it is damaging to the police if the public or those who have lost a relative feel that they have been unfairly treated? This is a question not just of those people but of the reputation of the police. Will she therefore reconsider all the caveats that she has put around support for the families? As the noble Lord opposite said, this support should not come out of the legal aid budget but should be on all fours with the support provided to all the other people who are represented. Unless that happens, frankly the public will not believe that they are getting fair dos. I am afraid that it will be expensive but I do not see how we will otherwise be able to protect the police force from the attitudes that are becoming increasingly prevalent.
My Lords, I most definitely agree with my noble friend that it is damaging to the police if people feel that they have been short-changed or indeed prejudiced against in the investigation of the death of one of their loved ones. I did not express caveats; I said that there would be—
My Lords, will the Minister please confirm that, when there are incidents involving public services, people are expected to be open and honest? Often, throughout this system people are told by insurers, “You may not say anything now”. Will the Government look carefully at where the insurance industry, by stopping people making open and honest comments, inhibits that openness and honesty?
I say to my noble friend that there is not another “if”. It is important that the police protect the public with honesty and integrity and that they uphold the values set out in the policing Code of Ethics. Police integrity and accountability are central to public confidence in policing. A system that holds police officers to account helps to guarantee that, so the Government must ensure that the public have confidence in the police to serve our communities and keep us safe. I think that on that we all agree.
Dame Elish’s report is very good and I understand that it will take time to consider it. I am extremely worried by the answers that the Minister has given about inquest representation. I am afraid that the noble Lord who mentioned “ifs” and “buts” was putting it kindly. I have two questions. Please can the Minister confirm that there is an immediate change in approach by the Legal Aid Board to giving legal aid for representation of the relatives and families of those who have died in custody? It is unclear from the answer that has been given whether there is a change in practice. The Minister said that the starting point is that you will get legal aid but that it is subject to an overriding discretion. Please can she confirm that there is a change of practice and that the presumption is that you get legal aid unless there are exceptional circumstances? Secondly and separately, please can she provide details to the House of the legal aid review and of how representation at inquests is to be considered? When will the review report and will the timing of those recommendations be different from the timing in relation to the rest of Dame Elish’s recommendations?
My Lords, I suspect that I have sounded a bit cautious this afternoon but I can guarantee that the starting presumption is that legal aid should be awarded for representation of the bereaved at an inquest. There is a presumption to grant legal aid. It is a total change of approach, as I think the noble and learned Lord will agree, and I should have thought that the House would be happier about it. It is a total change of approach.
Data Protection Bill [HL]
Committee (1st Day) (Continued)
Amendments 4 and 4A not moved.
Clause 3: Processing to which this Part applies
5: Clause 3, page 3, line 27, at end insert—
“( ) does not apply in the course of an activity which falls outside the scope of EU law.”
My Lords, in moving Amendment 5, I will also speak to Amendment 6. Both are in my name. I will respond later to Amendment 115, which is in the same group but was tabled by other noble Lords. Amendments 5 and 6 are probing amendments to try to tease out what appears to be a change of definition between various parts of the Act.
Amendment 5 relates to page 3 and Clause 3(1), (2) and (3) in Chapter 1, which raise concerns about what exactly is happening with the arrangements. It is easier if I read out the two subsections concerned. Clause 3(2) states that:
“Chapter 2 of this Part … applies to the types of processing of personal data to which the GDPR applies by virtue of Article 2 of the GDPR”.
That is the question I want to peruse, because later in the Bill, on page 11, Clause 19(1)(a) refers to activities which operate. This amendment is a probing one to try to tease out an answer that we can read in Hansard so as to know what exactly we are talking about. It may appear to be a narrow difference or nitpicking, but “an activity” is a very broad term for anything in relation to data processing and contrasts with the narrow way in which Clause 3(2)(a) talks about “types of processing”. Are these the same? If they are not, what differentiates the two? If they are different, why have we got different parts in different areas of the Bill?
Amendment 6 relates to page 3, line 31. This question of definition has come up in relation to Chapter 3 of the part. I understand this to be more of a recital, if I may use that word, than a particular piece of statute and it may not have normative effect, if that is the correct terminology. Clause 3(3)(b) says that the part to which this applies,
“makes provision for a regime broadly equivalent to the GDPR to apply to such processing”.
What is “broadly” in this context? Maybe I am obsessed with the use of English words that have common meanings, but again it would be helpful to have a bit more information on the definition from the Minister when he responds.
Perhaps more than the “quite” used in response to an earlier amendment, this has not got transatlantic resonances, but it is important in questions of adequacy in any agreement we might seek with the EU in the future. “Broadly equivalent” carries echoes of an adequacy agreement, which would assert that the arrangements in the two countries concerned—the EU on the one hand and the third country on the other—were sufficiently equivalent to allow for future reliance on the processes in the third country to be treated as appropriate for the transfer of data into and from, in relation to future industrial processes.
We are aware that an element of legal decision-making arises, which might change that “broadly equivalent” to a higher bar of requirement in the sense that the court is beginning to think in terms of “essentially equivalent”, which is very different from “broadly equivalent”. Again, I would be grateful if the Minister could respond to that. I beg to move.
I will speak to Amendment 115 in this splendidly and creatively grouped set of amendments. The Government appear to have removed some of the extraterritorial elements in the GDPR in applying derogations in the Bill. Paragraph 9(d) of Schedule 6 removes all mention of “representative” from the Bill. This could have major consequences for data subjects.
Article 3 of the GDPR extends its provisions to the processing of personal data of data subjects in the European Union by a controller not established in the European Union. This happens when a controller is offering goods or services into the European Union. In such circumstances, article 27 requires a representative to be appointed in a member state, if a controller is not in the Union. This article is removed by paragraph 23 of Schedule 6.
Recital 80 of the GDPR explains the role of the representative:
“The representative should act on behalf of the controller or the processor and may be addressed by any supervisory authority … including cooperating with the competent supervisory authorities … to any action taken to ensure compliance with this Regulation. The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor”.
Supposing that a company incorporated in the USA does not have a place of permanent establishment in the UK but still falls within article 3, such a company could be established in the USA and use its USA website to offer services to UK citizens without being caught by the Bill. Can the Minister reassure us that there is a solution to this problem?
My Lords, I am glad that the noble Lord, Lord Stevenson, has raised the question of the meaning of “broadly equivalent”. It encapsulates a difficulty I have found throughout the Bill: the language of the GDPR and of the law enforcement directive is more narrative and descriptive than language to which we are accustomed in UK legislation. Though one might say we should just apply a bit of common sense, that is not always the first thing to apply in interpreting UK legislation.
In this clause, there is another issue apart from the fact that “broadly equivalent” gives a lot of scope for variation. Although Clause 3 is an introduction to the part, if there are problems of interpretation later in Part 2, one might be tempted to go back to Clause 3 to find out what the part is about and be further misled or confused.
My Lords, I am grateful to noble Lords for their comments and the opportunity, I hope, to make things clearer. Amendment 5 seeks to make it clear that the applied GDPR does not apply to processing activities which fall outside the scope of EU law. Amendment 6 examines the differences between the GDPR and the applied GDPR. The applied GDPR exists to extend the GDPR standards for personal data processing to datasets outside the scope of EU law, which may be otherwise left unregulated. This is an essential extension because, first, we believe that all personal data should be protected, irrespective of EU legal competence; and, secondly, we need a complete data protection regulatory system to secure the future free flow of data.
Chapter 3 of Part 2 and Schedule 6 create the applied GDPR, which is close to, but not identical to, the GDPR. This is primarily because we have anglicised it as it sits within our domestic law, not European law. References to member states become references to the UK. As domestic regulation it is also outside the scope of the functions of the European Data Protection Board, so appropriate amendments are needed to reflect that. Otherwise the same general standards and exemptions apply to the applied GDPR as for the GDPR.
Clause 3 exists to help make the Bill easier to follow. It signposts readers to the provisions that cover either the GDPR or the applied GDPR. The language that it uses to do this has no legal effect. The applied GDPR is what it is. The extent of its similarity to the GDPR is a subjective matter. The Bill describes it as “broadly equivalent”. Amendment 6 prefers,
“identical in all major respects”.
We prefer the current drafting of the Bill because it better reflects the position.
The noble Lord, Lord Stevenson, asked about the relevance of “activity” in Clause 19. Activities should be taken to include processing of personal data. There is no special meaning. It has the meaning as in article 2 of the GDPR.
Amendment 115 seeks to reinstate the definition of “representative” into article 4 of the applied GDPR. Under the GDPR the territorial scope extends to controllers outside the EU where they are offering goods and services to persons inside the EU. Where a controller is outside the EU, subject to certain exemptions in article 27 of the GDPR, they must designate a representative inside the EU. The applied GDPR does not have the same extraterritorial application as the GDPR so does not have any requirements to designate representatives. As such, that definition is unnecessary.
The applied GDPR applies only to the processing which is outside the scope of the GDPR and which is not caught by any of the data being processed for law enforcement or national security purposes under Parts 3 and 4 of the Bill. The type of processing captured is primarily within the public sector, relating to areas such as defence and the UK consular services. Controllers in these situations are either in the UK or, if overseas, are not offering goods and services to those in the UK. As such, there is simply no need for the applied GDPR to have the same extraterritorial application as the GDPR.
Some people have suggested that the applied GDPR represents what the GDPR may come to look like once the UK leaves the EU. In some respects, this is a reasonable conclusion to draw. The applied GDPR anglicises the language and strips out irrelevant provision. This approaches some of the issues that the noble Baroness, Lady Hamwee, was talking about—the European language as opposed to what we are used to in UK legislation.
However, in some respects, it is not the same as what future legislation will look like, including on the question of extraterritoriality. When we leave the EU, the powers in the EU withdrawal Bill will bring the GDPR into our domestic law, anglicised—as has been done to the applied GDPR—but also with other modifications that are dependent on the future negotiations with the EU.
We have been clear, as I mentioned with the previous group of amendments, that the future free flow of data is the number one priority in respect of our data protection policy and will ensure that we maintain the international high standards in this respect. I hope my clarification is sufficient and that the noble Lord will withdraw the amendment.
My Lords, I thank the Minister for that interesting exposition, which ranged from now into the future. He has given a vision of the post-Brexit shape of our data protection legislation. Extraterritoriality will apply even though the language used may be that of the applied GDPR as opposed to the GDPR itself—just to be confusing, perhaps as much as the Minister confused us.
I want to be absolutely clear that we are not derogating from the GDPR in extraterritoriality. That seems to be the nub of it. The Bill makes changes to the applied GDPR—I would like to read in Hansard exactly what the Minister said about the applied GDPR because I did not quite get the full logic of it—but there is no derogation in the GDPR on extraterritoriality. It would be helpful if he could be absolutely clear on that point.
Perhaps the Minister will respond to that because I, too, am troubled about the same point. If I am right, and I will read Hansard to make sure I am not misreading or mishearing what was said, the situation until such time as we leave through Brexit is covered by the GDPR. The extraterritorial—I cannot say it but you know what I am going to say—is still in place. Therefore, as suggested by the noble Lord, Lord Clement-Jones, a company operating out of a foreign country which was selling goods and services within the UK would have to have a representative, and that representative could be attached should there be a requirement to do so. It is strange that we are not doing that in the applied GDPR because, despite the great improvement that will come from better language, the issue is still the same. If there is someone that our laws cannot attack, there is obviously an issue. Perhaps the Minister would like to respond.
This concerns Amendment 115, which is to a substantial part of the Bill; it is not the issue raised by the amendment I introduced. We are talking about page 158, line 34. Perhaps it would be better if I requested a letter on this point so that—again, I cannot say the word—does not bog us down.
Isn’t he so smooth? Unfortunately, I bet Hansard does not print that. However, extraterritoriality is important because it represents a diminution of the ability of those data subjects affected by actions taken by those bodies in terms of their future redress. It is important that we get that right and I would be grateful if the Minister could write to us on that.
I am satisfied with what the Minister said on Amendments 5 and 6. I am grateful and beg leave to withdraw the amendment.
Amendment 5 withdrawn.
Amendment 6 not moved.
7: Clause 3, page 3, line 32, at end insert—
“(4) This Act does not apply to any organisation employing five employees or fewer.(5) Organisations covered by subsection (4) include, but are not limited to—(a) small businesses,(b) charities,(c) parish councils.”
My Lords, in moving Amendment 7 I shall speak also to Amendments 152 and 169, which have been grouped together. They all stand in my name and that of my noble friend Lord Arbuthnot of Edrom, who spoke so eloquently at Second Reading.
Amendment 7 explores an exemption for small organisations in the business and charity sectors and for parish councils, all of whom have expressed concerns to me about the burdens of the Bill. At Second Reading, I, like others, supported the Bill because it brings us up to date for the digital age, encourages good data practice to minimise scams and cyberattacks, and prevents abuse. It gets us up to the standards we need to get a good deal on data protection in the Brexit talks, and it provides citizens with easier access to their data. However, as presently drafted, I fear it imposes disproportionate burdens, especially on small businesses, charities and other small organisations. Luckily we have my noble friend Lord Ashton to guide us through this part of the Bill, and I congratulate him on his response to the first group of amendments today.
I come to this matter because sometimes I feel like a voice in the wilderness, fighting over-regulation and complexity. Our recent record on productivity is bad, partly because of poorly constructed and complex regulation and, in some cases, overbearing regulators. I would add that the fashion for intervention on all sides of the House could actually make things worse.
Instead of questioning regulation as we used to do, the Government are now seeking to match every EU rule as part of the Brexit project. Detailed consideration of how to ameliorate the impact on small businesses and charities, for example, seems to have gone out of the window and conversations on how to improve things once Brexit has given us greater freedom are regrettably not encouraged. In short, economics gets less attention in this House than it ought to. Those of us who have worked in business and the charitable sector know that well-meaning measures can adversely affect business by reducing competitiveness and growth, and indeed the tax take we need to build schools and pay for welfare. We are regulating more and not thinking about how we can do less. I was struck by what the noble Lord, Lord McNally, said earlier about the good but light touch that he sought in Brussels when he was dealing with data protection legislation.
Research by the Federation of Small Businesses shows that data protection regulation is one of the most salient regulations for 59% of small businesses. The federation provided me with some estimates which suggest that small businesses in the ICT sector alone, representing 6% of the business sector according to the ONS, will spend £700 million in man hours on implementing the new requirements—and that is not allowing for the cost of materials and ongoing compliance. Nor does it allow for the opportunity cost, another economic concept that is widely ignored in government. What we sorely need is a proper impact assessment, not the one provided so far, which does not address the cost to business and, oddly, suggests that there is no need to consult the Regulatory Policy Committee. If it is not needed for this sort of burden, I am not sure what it is needed for.
This House rightly always supports proper costing, as I know from some of the Bills I have been involved in. Before the Committee stage ends, we need to know the updated cost impact for business of what is coming in: first, under the GDPR, which will take direct effect and, as I understand it, continue after Brexit under the terms of the withdrawal Bill; and secondly, under what is planned in this Bill through the regulations to be made using its powers. I hope the Minister can help us with that.
It is against this background that Amendment 7 proposes an exemption from the Bill’s provisions—not, of course, from the GDPR, which has direct effect. Inevitably, the amendment is exploratory in nature. However, I trust that it will give the Minister, DCMS and the Information Commissioner the opportunity to think carefully about what we might do to reduce the burden on small businesses, charities and parish councils, which the National Association of Local Councils says are very concerned about the panoply of new rules. I cannot believe that we would see these in Greece.
The argument I have heard from the Government is that the changes are good for these organisations because they are under-compliant at present: they would deter the cyberattacks and data leaks that can harm them. I accept that responsible bodies know that good data practices are business critical, but what they do not need is the full panoply of controls, fees and penalties being introduced by this Bill. There is a risk of fines for breaches of up €20 million or 4% of worldwide turnover. My fear is that the controls are so burdensome, open-ended and threatening that at the margin, businesses will either give up or be deterred from operating overseas—at a time when we need them to export more. We need to find a way of bringing in de minimis rules and reducing the powers of the commissioner to what is reasonable. Another look at the compensation provisions with an eye to small operators could also be useful. I note that the Delegated Powers and Regulatory Reform Committee shares some of my concerns about the powers being given to the commissioner, as well as the extraordinarily wide powers being delegated to Ministers, which we will discuss later.
One practical countermeasure would be to introduce a greater emphasis in the Bill on the economic and other consequences of the commissioner’s work and to make this transparent, so that it can be considered properly by all those affected and publicly debated before she takes measures in relation to the protection of individuals’ rights and the processing of personal data.
That is the purpose of Amendment 152, which adds a third duty after subsection (1)(b). Perhaps I may give an example of why this is of practical importance. I spoke to representatives from CACI, a leading firm in mapping and data analytics, which is the sort of business we want to encourage if we are to be world-leading here in the UK. They are concerned about the technical aspects of ICO draft statutory guidance on consent. The fear is that the ICO may be adopting a needlessly restrictive interpretation of the GDPR which will benefit the large social media multinationals at the expense of British operators in retail and marketing, as well as charities. This would threaten the way that they and others run their businesses. I urge Ministers to meet representatives of the business community most at risk, not just the trade associations, as soon as possible and before the ICO finalises its vital guidance.
I believe strongly that regulators with powers as wide as those of the Information Commissioner need to engage properly on the content of draft regulations and draft guidance, which is often equally important. They must be required and of course resourced to do so; otherwise—going back to my first point—the burdens and risks will be disproportionate.
Finally, Amendment 169 would introduce a new clause after Clause 153 to give the Secretary of State a role in ensuring top-quality, comprehensive information on the changes for business. Small businesses operate under a number of constraints tied to their size, such as limited in-house expertise, owners’ limited time, a limited asset base—and, of course, knowing where to go for help. When the FSB survey asked small businesses what aspects of regulation created the biggest barriers in general, 15% cited lack of guidance. On data protection in particular, that figure rose to 35%. Even worse, when asked about data protection, 58% said that regulation was too broad and it was difficult to know how to comply, with 51% citing inconsistent or complex language.
That is the background to my proposal in Amendment 153 to require clear information at least six months before the rules come in and suitable online material, and for a report to be brought before Parliament on how this is being achieved before the provisions of the new Act come into force. Our amendment requires online information on both the new Act and on the GDPR in a simple and easily accessible form, along with the use of free online training and testing. I know from direct experience that this can be invaluable in helping businesses to actually comply.
Indeed, it can also be invaluable to charities. Proper, clear information and guidance is vital to them and their data controllers. They face the same uncertainties, costs, and commercial and reputational risk from prosecution. I therefore also support Amendment 170, which would add charities, and I am delighted that it comes from the noble Lord, Lord Clement-Jones, with whom I have had such productive dealings on intellectual property. I beg to move.
My Lords, I thank the noble Baroness for that accolade. I rise to speak to Amendment 170, which is a small contribution to perfecting Amendment 169. It struck me as rather strange that Amendment 152 has a reference to charities, but not Amendment 169. For charities, this is just as big an issue so I wanted to enlarge slightly on that. This is a huge change that is overtaking charities. How they are preparing for it and the issues that need to be addressed are of great concern to them. The Institute of Fundraising recently surveyed more than 300 charities of all sizes on how they are preparing for the GDPR, and used the results to identify a number of areas where it thought support was needed.
The majority of charities, especially the larger ones, are aware of the GDPR and are taking action to get ready for May 2018, but the survey also highlighted areas where charities need additional advice, guidance and support. Some 22% of the charities surveyed said that they have yet to do anything to prepare for the changes, and 95% of those yet to take any preparatory action are the smaller charities. Some 72% said that there was a lack of clear available guidance. Almost half the charities report that they do not feel they have the right level of skills or expertise on data protection, and 38% report that they have found limits in their administration or database systems, or the costs of upgrading these, a real challenge. That mirrors very much what small businesses are finding as well. Bodies such as the IoF have been working to increase the amount of support and guidance on offer. The IoF runs a number of events, but more support is needed.
A targeted intervention is needed to help charities as much as it is needed for small business. This needs to be supported by government—perhaps through a temporary extension of the existing subsidised fundraising skills training, including an additional training programme on how to comply with GDPR changes; or a targeted support scheme, directly funded or working with other funding bodies and foundations, to help the smallest charities most in need to upgrade their administrative or database systems. Charities welcome the recently announced telephone service from the ICO offering help on the GDPR, which they can access, but it is accessible only to organisations employing under 250 people and it is only a telephone service.
There are issues there, and I hope the Minister will be able to respond, in particular by recognising that charities are very much part of the infrastructure of smaller organisations that will certainly need support in complying with the GDPR.
My Lords, I broadly support what these interesting amendments are trying to do. I declare my interest as a member of the board of the Centre for Acceleration of Social Technology. Substantially, what it does is advise normally larger charities on how to best take advantage of digital to solve some of their problems.
Clearly, I support ensuring that small businesses, small charities and parish councils, as mentioned, are advised of the implications of this Act. If she has the opportunity, I ask the noble Baroness, Lady Neville-Rolfe, to explain why she chose staff size as the measure. I accept that hers is a probing amendment and she may think there are reasons not to go with staff size. The cliché is that when Instagram was sold to Facebook for $1 billion it had 13 members of staff. That would not come within the scope of the amendment, but there are plenty of digital businesses that can achieve an awful lot with very few staff. As it stands, my worry is this opens up a huge loophole.
I entirely agree with my noble friend. The point I was going to make is that small companies are often very wealthy. In the global digital world that is the fact: you do not need the same number of employees as in the past. Equally, would the amendment apply to five employees globally, or just in this country?
Certainly if the amendment were to have any legs in terms of using the number of employees as a parameter then that would have to be defined. However you chose to define the size of an organisation, you would need to explore how to work that out.
I chose five employees because it often denotes a small organisation or a small business. I can see that some of the businesses in that category might be fairly large. I would of course have no objection to adding an extra criterion, such as turnover, if there was a mood to write exemptions into the Bill. Other legislation has exemptions for smaller bodies. The overall objectives of the data protection legislation clearly have to be achieved but I am concerned that, in particular, some of the subsidiary provisions, such as fines and fees, which I mentioned, are demanding and worrying for smaller entities.
I am grateful for the noble Baroness’s comments. Something certainly can be done to think more about turnover than the number of employees, otherwise there would be a big loophole, particularly around marketing and being able to set up a company to harvest data, for which the Act would not apply. It could then sell the data on. It would not need very many people at all to pursue that opportunity.
The other thing these amendments allow us to do is ask the Minister to enlighten us a little on his thinking about how the Information Commissioner’s role will develop. In particular, if it is to pursue the sorts of education activities set out in these amendments, how will it be resourced to do so? I know there are some career-limiting aspects for Ministers who promise resources from the Dispatch Box, but the more he can set out how that might work, the more welcome that would be.
My Lords, I declare my interests as a chairman of a charity and of a not-for-profit organisation, and as a director of some small businesses. Having said that, I agree with every word that my noble friend Lady Neville-Rolfe said.
The Association of Accounting Technicians has said that the notion that the GDPR will lead to a €2.3 billion cost saving for the European Union is absurd. I agree. The Federation of Small Businesses has said how a sole trader might have to pay £1,500 for the work needed, and someone with 25 employees might have to pay £20,000. In the Second Reading debate my noble friend Lord Marlesford talked about his parish council rather poignantly. It might be impossible to exempt organisations such as those from European Union regulations. But if that is so, I hope that my noble friend the Minister will say, first, why it is impossible; and, secondly, what we can do to get round and to ameliorate the various different issues raised.
On the duty to advise Parliament of the consequences of the Bill, I said at Second Reading that the regulator cannot issue guidance until the European Data Protection Board issues its guidance. That may not be until spring next year. This leaves businesses, charities and parish councils very little time, first, to make representations to Parliament; secondly, to bring in new procedures; and thirdly, to train the staff they will need. In that short time, organisations will all be competing for very skilled staff. That must push the price of those skilled staff up at a time when these small businesses will find it very difficult to pay.
I look forward with interest to hearing what my noble friend says, and I hope that he will be able to agree to the meeting that my noble friend asked for.
My Lords, I declare an interest as the editor of the Good Schools Guide. We have three employees and we certainly should come under this Act in terms of the data on people and schools that we have in our charge. It is very difficult to find any measure that describes the importance of data that a business holds other than, “How important is the data that you hold?”. Therefore, I look to my noble friend to explain how the Information Commissioner will not take sledgehammers to crack nuts and how they will genuinely look at how important the data you have under your control is and, given that, what efforts you ought to have made. That seems the right criterion to get a system that operates in a human way, where there is a wide element of giving people time to get up to speed and being human in the way you approach people, rather than immediately reaching for the fine.
However, this is important. This is our data. Just because I am dealing with someone small, I do not want them to be free from this. I want to be secure in the thought that if I am dealing with a small company my data is just as safe as if I had been dealing with someone big. I want to encourage small businesses to grow and to be able to reassure their customers that they are every bit as good. They would have terrible trouble having contracts with the NHS and others if they are not up to speed on this.
I do not think that is the way, but I do think we have to understand that this will be very difficult for small businesses. We have to look at how we might construct a set of resources that small businesses can use not only to get up to speed but to stay up to speed, because this is a constant issue. I draw your Lordships’ attention again to what is going on in Plymouth, where both universities, the FE colleges, the schools and the local authority, and a lot of the big businesses, have got together to construct apprenticeships in cybersecurity tailored to small businesses. Expert cybersecurity advice has been made available to small businesses in small chunks, while young people are trained in how to take the right path in cybersecurity rather than wandering off to the point where they get arrested if they visit the United States. There is scope for extending that in areas such as social marketing but also in data protection, where expertise tends to be concentrated in large organisations and a structure is needed that enables small businesses to have ready access to it. We could greatly enhance the employment prospects of a lot of young people, and improve life for our small businesses, if we talked to BEIS and the DfE about tweaking the requirements for apprenticeships to make it rather easier to run them in small businesses.
My Lords, I refer the Committee to my registered interests: I am on the board of two small charities in the London Borough of Southwark.
I recall from Second Reading the noble Lord, Lord Marlesford, who is not in his place today, talking about the effect of the legislation on small organisations—many others have made reference to it already. He referred to parish councils, which often employ just a part-time parish clerk. The noble Lord, Lord Arbuthnot of Edrom, spoke similarly about the effect on organisations. Both noble Lords had a point at Second Reading, as does the noble Baroness, Lady Neville-Rolfe, with her amendment today.
As we have heard, the amendment limits the scope of the Act to organisations employing more than five people and specifies for exemption organisations such as small businesses, charities and parish councils which meet the employment qualification of five employees or fewer. My noble friend Lord Knight of Weymouth made a valuable point about size and turnover—I think the noble Baroness accepted that in her intervention.
The amendment also makes the useful point that the exemption is not limited to these three specific groups but seeks to cast a wider net. I certainly want to hear from the Minister that community councils would be exempted, as well as the small not-for-profit sector and small co-operatives, which I am sure is the intention behind the amendment.
The amendment needs a detailed response, as we have to be clear on what the Government think is reasonable for such organisations to have to comply with and how the Government will make it as simple as possible and not pile additional burdens on them. I hope the Minister will not say that these organisations already have to comply with the 1998 Act and that this legislation is only a very small increase in what is required. We will require a lot more reassurance than that from the Minister.
Amendment 152, also in this group, would place a duty on the Information Commissioner to advise Parliament, government and other institutions and bodies on the likely consequences, economic or otherwise, for industry, charities and public authorities of measures relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data. The noble Baroness again makes a valid point and there is merit to placing this duty in the Bill.
If the Minister thinks that Clause 113, and specifically Clause 113(3)(b), is sufficient to provide the Information Commissioner with the power and the duty to do what is set out in the amendment, we need him carefully to set that out today for the benefit of your Lordships’ House.
Amendments 169—and Amendment 170, which would add “and charities” to it—raises some very important issues. It would place a duty on the Secretary of State to ensure that they or the Information Commissioner had a programme in place to ensure that information on the new duties that businesses and charities will be obliged to follow is publicly available. Again, these are very important and welcome amendments. Large businesses, large corporations and large charities will more than likely have the structures in place to ensure that they comply with any new requirements, but smaller organisations do not have compliance departments or lawyers on retainer to advise them. The Government have to get that message out to them. I particularly like subsection (2) of the new clause proposed by Amendment 169, which would require this information to be placed online and the Secretary of State to have regard to the creation of online training and testing to meet the requirements of the new Act. This group of amendments raises important matters on which I hope the Minister can give the Committee some reassurance.
My Lords, I am grateful to all noble Lords who have raised the amendments and commented on them, because the Government recognise the concern behind them; namely, to protect the smallest organisations from the additional requirements established by this and future data protection legislation and to ensure that all UK businesses and organisations are properly supported through the transition.
I fully concur with my noble friend Lady Neville-Rolfe that supporting UK businesses of all sizes must be a priority. I can assure her that it is of the utmost importance both for the Government and for the Information Commissioner. However, I cannot agree with the proposal in Amendment 7 that those organisations with five or fewer employees be exempted from the requirements of the Act. We are talking in this Bill not just about businesses but about individual rights of data subjects. As my noble friend Lord Lucas mentioned, it is right that individuals enjoy the protections that will be afforded by this new regime regardless of the size of the organisation with which they are dealing. People should not be afforded a lesser degree of protection simply because they have chosen to do business with, or indeed to voluntarily support, a small organisation. After all, the fact that an organisation employs few staff does not mean that a breach of data protection law will cause a correspondingly small amount of distress. Many of the most cutting-edge financial technology firms begin life in someone’s back bedroom, but it does not make their customers’ transaction history any less worthy of protection.
Amendment 7 is unlikely to have the intended effect because the GDPR does not permit such an exemption. As an area in which our ongoing relationship with the European Union will be of the utmost importance, I do not consider that such an amendment would be in the best interests of British businesses.
However, I understand my noble friend’s concerns that the smallest organisations may be the least well equipped to deal with the changes introduced by this regime. I was therefore pleased to learn recently—the noble Lord, Lord Clement-Jones, mentioned this—that the Information Commissioner has announced the establishment of a dedicated telephone advice service for small and micro businesses to support them in implementation. The noble Lord also mentioned that the threshold was 250 employees, which represents quite a large organisation by today’s terms, with small businesses, especially in the tech field, growing up all over the place.
In respect of Amendment 152, I fully concur with my noble friend about the importance of monitoring the consequences of the Act for businesses and other organisations. I reassure her that there is already, quite rightly, a broad obligation on government to assess and report on the impact of all legislation that regulates business under the Small Business, Enterprise and Employment Act 2015. In addition, the Information Commissioner will be required to advise Parliament, government and other bodies on both legislative and administrative measures relating to the new Act and to provide opinions on any issue relating to the protection of personal data. My noble friend Lady Neville-Rolfe also asked about the impact on business. I confirm that the Government will publish a further assessment of the impact of the Bill on business very shortly.
With regard to Amendment 169, it is worth reiterating that the Information Commissioner has already provided general guidance, which is available online to all businesses, to help them understand their obligations. The commissioner is continuing to develop this guidance and has a programme in place for publication. I cannot go through it all but, in addition to the guidance the ICO has already published, it expects to develop this further between now and May into a fully comprehensive guide to the GDPR, including summaries and checklists, as well as more detailed content focused on key areas. This will also be available online from early next year. Later this year, the Information Commissioner will publish draft guidance on children’s data; on accountability, including documentation; on legitimate interests, including examples addressing universities maintaining alumni relationships; and draft guidance on security of processing, including joint work on high-level security principles. It will also provide sector-specific guidance. The Government are working with the Information Commissioner to identify appropriate areas and to work with sectors to deliver more guidance.
In respect of timing, I completely agree with my noble friend that it is desirable that up-to-date guidance about the new regime is available to businesses as soon as possible. As I have just set out, that is precisely what the commissioner is already attempting. But I fear that it may not be feasible, as the amendment requires, for final information to be published at least six months before the commencement of the provisions in the Act, not least because changes to the Bill may affect that guidance.
In respect of Amendment 170, I share the sentiment of the noble Lord, Lord Clement-Jones, in wishing to ensure that charities are provided with guidance to help them understand their obligations. I reassure him that the general guidance that the Information Commissioner has already published is designed to assist all organisations through the transition.
The noble Lord, Lord Knight, asked how the role of the Information Commissioner will develop and be resourced. My noble friend Lady Williams said at Second Reading that the Government take the adequate resourcing of the Information Commissioner very seriously and have provided for an appropriate charging regime in Part 5 of the Bill. I assure the noble Lord that we are aware that there are problems with the Information Commissioner at the moment and we are looking at that. But, possibly for the reasons that he mentioned, I am not able to make any binding commitments tonight. But I accept that there is an issue there. We are looking at it.
I assure noble Lords that the Government share the concerns raised in these amendments and are particularly pleased that the Information Commissioner is actively taking steps to provide dedicated support for small and micro enterprises, including the telephone service I mentioned earlier. With that in mind, I hope my noble friend feels able to withdraw her amendment.
The Minister mentioned guidance a few times and said that it might not be ready in time. I was reminded of our debates—which he was not involved in—on the Housing and Planning Bill. We were told about guidance and regulations, and well over a year later we have seen next to nothing. This is such an important issue that we need to hear a little more from the Minister. I and many other noble Lords mentioned parish councils. I do not think he mentioned those. For example, I know the Deeping St James Parish Council in Lincolnshire very well. It employs only a part-time clerk. I think the noble Lord, Lord Marlesford, made a similar point about parish councils at Second Reading. Perhaps the Minister could say something about that.
Yes, I think my noble friend mentioned the parish council of the noble Lord, Lord Marlesford, in her reply. I make the point again that individuals’ data rights have to be protected. Just because parish councils are small organisations does not mean that they should not take that seriously—and I am sure they do. With regard to the practicalities of how they cope with their duties, apart from the fact that the Information Commissioner is providing guidance specifically for small organisations, the parish clerk—who already often works for more than one parish council so they can share the cost—is in a good position to deal with the duties under the Bill and will be able to take the guidance relating specifically to small businesses and organisations from the Information Commissioner.
I admit that I did not follow the Housing and Planning Bill too closely. But I mentioned a lot of the guidance that will be available before the end of the year. The Information Commissioner is very aware of the need to produce this quickly. In addition, of course, she is actively involved in outlining the European guidance on which a lot of member states’ guidance will be based. Therefore, she is helping to set the tone on which her future guidance will be based.
That is fine as far it goes. The point I am making is that we have heard guidance mentioned two or three times, in relation to two or three different organisations. I know that the Minister was not involved but we heard the same comments about guidance and regulations from the Government Front Bench when we were dealing with the Housing and Planning Bill. I hope we are not having déjà vu here. We hear these things are coming forward. These things are very important. I accept entirely that people’s data are important—of course they are—but, equally, getting this guidance right is important, as is organisations being able to have the information so that they ensure that they comply with the law. I hope the Minister can take back how important this is. He said it will all be after Report, at the end of the year. The Bill will have long left this House and we will be saying, “Where is this guidance then? You promised it and nothing has arrived”. It really is not good enough for the individual data subject or for business or for anyone else involved.
My Lords, I was slightly disappointed when all my amendments were grouped, but bringing them together has led to an extremely useful and productive debate. I am very grateful to noble Lords right across the Committee for their support. I am also grateful to the Minister for saying that he will let us have a compliance cost assessment, which I will read with the detail and vigour that it merits, and for some of the other points he made.
I am a little disappointed about how we achieve some de minimis relief for the smaller organisations in these various sectors, including the ones mentioned by the noble Lord, Lord Kennedy, as well as on guidance—I am not sure we are quite there. We need to think a little further. I gave the Minister an example of the difficulties that the data analytics sector had had on consent. It would be good if he could look at that point and perhaps arrange for a meeting so that we could talk further. I will look in Hansard at the progress we have made in this very constructive discussion and possibly come back on Report on one or two points. I beg leave to withdraw the amendment.
Amendment 7 withdrawn.
Clause 3 agreed.
Clause 4: Definitions
8: Clause 4, page 3, line 40, at end insert “and to section 183”
My Lords, the Bill creates a comprehensive and modern framework for data protection in the UK. The importance of these data protection standards continues to grow—a point which has not been lost on noble Lords; nor has it been lost on organisations, business groups and others. We are grateful for all the feedback we have received through responses to the Government’s call for views and on our statement of intent, and, most recently, on the drafting of the Bill itself. Hence this large group of technical amendments seek to polish various provisions of the Bill in response to that feedback. If I may, I will save noble Lords from the tedium of going through each amendment in turn—we would be here all night—and instead focus on the small number of substantive amendments in the group.
I begin with Amendment 51, which ensures that automatic renewal insurance products purchased before 25 May 2018 can continue to function. Automatic renewal products work on the principle that, if the insured person does not respond to the renewal notice, their insurance continues uninterrupted. Without the amendment this would not be possible for products such as motor insurance, which require processing of special categories of personal data and criminal convictions and offences data, potentially leaving individuals unwittingly uninsured.
Amendment 55 responds to a request from the Welsh Government to extend an exemption on passing information about a prisoner to an elected representative to Members of the Welsh Assembly. I am very happy to give effect to that request.
Amendment 56 ensures that existing court reporting—so important for ensuring open justice—can continue. Judgments may include personal data, so this amendment will allow the courts to continue with current reporting practices.
Paragraph 9 of Schedule 2 provides a limited exemption in respect of certain regulatory activities which could otherwise be obstructed by a sufficiently determined individual. Amendment 86 adds five additional regulatory activities to that list to allow relevant existing data processing activities to continue.
Amendment 87 extends the common-sense protection provided by paragraph 22 of Schedule 2 for confidential employment references, so that it also expressly covers confidential references given for voluntary work.
Amendments 90 and 186 ensure a consistent definition of “publish” and “publication” throughout the Bill.
I conclude my brief tour—it did not seem very brief to me—of these amendments with reference to the amendments to Schedule 6. As noble Lords will recall, in creating the applied GDPR Schedule 6 anglicises its language, so as to ensure that it makes sense in a UK context. This is a mechanical process involving, for example, replacing the term “member state” with “United Kingdom”. Amendments 112 to 114, 116 to 118 and 120 to 124 refine that process further.
The remaining amendments that I have failed to mention will dot the “i”s and cross the “t”s, as detailed in the letter from my noble friends Lord Ashton and Lady Williams when the amendments were tabled on 20 October. For these reasons, I beg to move Amendment 8 and ask the House to support the other government amendments in this group.
My Lords, I will be brief on this group but I have two points to make. One is a question in respect of Amendment 51, where I congratulate the insurance industry on its lobbying. Within proposed new paragraph 15A(1)(b) it says,
“if … the controller has taken reasonable steps to obtain the data subject’s consent”.
Can the Minister clarify, or give some sense of, what “reasonable” means in this context? It would help us to understand whether that means an email, which might go into spam and not be read. Would there be a letter or a phone call to try to obtain consent? What could we as citizens reasonably expect insurance companies to do to get our consent?
Assuming that we do not have a stand part debate on Clause 4, how are the Government getting on with thinking about simplifying the language of the Bill? The noble Baroness, Lady Lane-Fox, is temporarily not in her place, but she made some good points at Second Reading about simplification. Clause 4 is quite confusing to read. It is possible to understand it once you have read it a few times, but subsection (2) says, for example, that,
“the reference to a term’s meaning in the GDPR is to its meaning in the GDPR read with any provision of Chapter 2 which modifies the term’s meaning for the purposes of the GDPR”.
That sort of sentence is quite difficult for most people to understand, and I will be interested to hear of the Government’s progress.
My Lords, I thank the noble Baroness for introducing these amendments in not too heavy a style, but this is an opportunity to ask a couple of questions in relation to them. We may have had since 20 October to digest them; nevertheless, that does not make them any more digestible. We will be able to see how they really operate only once they are incorporated into the Bill. Perhaps we might have a look at how they operate on Report.
The Bill is clearly a work in progress, and this is an extraordinary number of amendments even at this stage. It begs the question as to whether the Government are still engaged in discussions with outside bodies. Personally, I welcome that there has been dialogue with the insurance industry—a very important industry for us. We obviously have to make sure that the consumer is protected while it carries out an important part of its business. I know that the industry has raised other matters relating to third parties and so on. There have also been matters raised by those in the financial services industry who are keen to ensure that fraud is prevented. Even though they are private organisations, they are also keen to ensure that they are caught under the umbrella of the exemptions in the Bill. Can the noble Baroness tell us a little about what further discussions are taking place? It is important that we make sure that when the Bill finally hits the deck, so to speak, it is right for all the different sectors that will be subject to it.
My Lords, I thank my noble friend Lord Knight and the noble Lord, Lord Clement-Jones, for raising points that I would otherwise have made. I endorse the points they made. It is important that those points are picked up, and I look forward to having the responses.
I had picked up that the Clause 4(2) definition of terms is probably a recital rather than a normative issue, and therefore my noble friend Lord Knight’s point is probably not as worrying as it might otherwise have been. But like him, I found that it was tending towards the Alice in Wonderland side. Subsection (1) says:
“Terms used in Chapter 2 and in the GDPR have the same meaning in Chapter 2 as they have in the GDPR”.
I sort of get that, but it seems slightly unnecessary to say that, unless there is something that we are not picking up. I may be asking a negative: “There’s nothing in here that we ought to be alerted to, is there?”. I do not expect a response, but that is what we are left with at the end of this debate.
I have one substantial point relating to government Amendment 8. In the descriptions we had—this was taken from the letter—this is a technical amendment to ensure that there is clarity and that the definition of health professional in Clause 183 applies to Part 2 of the Bill. I do not think that many noble Lords will have followed this through, but it happens to pick up on a point which we will come back to on a later amendment: the question of certain responsibilities and exceptions applying to health professionals. There was therefore a concern in the back of my mind about how these would have been defined.
My point is that the definition that appears in the Bill, and which is signposted by the way that this amendment lies, points us to a list of professionals but does not go back into what those professionals do. I had understood from the context within which this part of the Bill is framed that the purpose of having health professionals in that position was that they were the people of whom it could be said that they had a duty of care to their patients. They could therefore by definition, and by the fact of the posts they occupied, have an additional responsibility attached to them through the nature of their qualifications and work. We are not getting that out of this government amendment. Can the Minister explain why polishing that amendment does or does not affect how that approach might be taken?
I thank noble Lords for all their contributions. The noble Lord, Lord Knight, wanted to know what “reasonable” meant in this context. The Financial Conduct Authority has set requirements on insurers in relation to the steps they must take in the case of insurance contracts that are automatically renewed. In this context, our view is that those steps are likely to be reasonable. As to how they get in contact, it is by normal business procedure acceptable to the FCA. Normally emails and so on is the way they do that.
I agree that the language can be very complicated and we are certainly working to make it understandable to everyone. We are still talking to stakeholders about issues that they may have. For instance, on the insurance amendment we talked to the ABI and Lloyds and worked with them when we drew up the amendment. We will carry on doing that with anybody who wishes to be in touch with us. I think that answers the questions asked by the noble Lord, Lord Clement-Jones. We are certainly still in touch with people.
To clarify the question around insurance companies, if as technology and communications change there is a sense that the insurance companies should work a bit harder, would the first recourse be to go to the Financial Conduct Authority in order for it to regulate the insurance companies to do a better job?
Yes, it is the FCA. That would be the case.
The noble Lord, Lord Stevenson, talked about Amendment 8, the health amendment. It is to ensure that there is clarity for health professionals in Clause 183. The GDPR refers to health data being processed under the responsibility of a health professional whereas the Bill says,
“under the supervision of a health professional”,
to clarify that no intentional difference in the meaning is being conveyed. These amendments ensure that consistent language is used and so make it more understandable. I hope that has answered all noble Lords’ questions. Please come back to me if it has not.
Amendment 8 agreed.
Amendment 9 not moved.
Clause 4, as amended, agreed.
Clause 5 agreed.
Clause 6: Meaning of “public authority” and “public body”
10: Clause 6, page 4, line 35, at end insert—
“( ) A college, school or university is not a public authority or public body for the purposes of the GDPR.”
My Lords, I rise to move Amendment 10 in my name and the names of the noble Lords, Lord Pannick and Lord Macdonald of River Glaven. In doing so, I declare my interest as principal of Somerville College, Oxford.
The GDPR, which will be brought into effect in domestic law by the Data Protection Bill, will have an impact on many aspects of university business from procurement to the commercialisation of research. Universities up and down the land are therefore now making preparations to ensure that they will comply with the new requirements. It is immensely complex, and throughout the Committee stage issues will be raised which are pertinent to universities.
With this amendment I am concerned about one aspect of the life of universities, colleges and schools which will be severely impacted by the GDPR. It is our ability to fundraise and to maintain alumni relations, hence our amendment, which is probing at this stage. I have only recently become aware of the huge importance of alumni relations and fundraising and of the fact that they are inextricably linked. As a consequence of financial constraints and government encouragement, universities, colleges and schools are having to raise more and more money to provide the education and the excellent facilities rightly expected by students.
As far as universities are concerned, with potentially reduced tuition fees, Brexit and, despite what the Government may say, a reduction in the number of foreign students, the need to raise money will increase. At Oxford, the system that I now know best, the excellent tutorial system demands even greater resources. I do not complain. However, with the introduction of the GDPR our alumni relations and fundraising ability will be severely limited unless we can find a way through, for example by stating that a college, school or university is not a public authority for the purposes of the GDPR. Naturally universities, including Oxbridge colleges, are concerned to ensure that personal data is processed lawfully in the course of contacting alumni for fundraising purposes, and we want to ensure that we work in the most cost-effective way. I should stress that none of the contacts made to our former students relates to cold calling. We are talking about alumni, people who spent three or more years as students, with whom we have therefore have a long-standing relationship. With regard to a college such as Somerville, our alumni feel they belong to a community and they want us to remain in close touch with them.
As the Minister, will be aware, under the GDPR, in order for the processing of personal data to be lawful at least one of the six conditions set out in article 6 of the GDPR must apply. The most important change to the lawfulness conditions by the GDPR concerns the consent condition. The GDPR sets a high standard for consent requiring a positive opt-in, and unless opt-in consent has been obtained, or is obtained in future, current and future contact with alumni will be limited. It is clear that existing consents are unlikely to meet the GDPR standard and as a result all fundraising and alumni databases might have to be rebuilt from scratch and/or a huge exercise undertaken to secure explicit consent from all our former students if the consent condition were to be relied on by colleges to justify their processing of alumni data. This is an enormous administrative task and hugely time-consuming. At Somerville, we are already grappling with the new consent standard, and it is both difficult and detrimental.
I understand that when the Council for Advancement and Support of Education—CASE—met DCMS and the Information Commissioner in May it was suggested that the legitimate interest condition could, in appropriate circumstances, be relied on by fundraisers. However, this condition does not apply to processing by public authorities. While the GDPR contains no definition of public authority, Clause 6(1) states:
“For the purposes of the GDPR, the following (and only the following) are ‘public authorities’ and ‘public bodies’ under the law of the United Kingdom—
a public authority as defined by the Freedom of Information Act 2000”.
The Freedom of Information Act 2000 contains in Schedule 1 a list of public authorities which includes, at paragraph 53,
“the governing body of … a university receiving financial support under section 65 of the Further and Higher Education Act 1992”,
“any college, school, hall or other institution”,
of such a university. It is clear that universities, colleges and schools fall within this definition of public authority, which would mean that the legitimate interest condition could not be applied and they would have to rely on either the public interest condition or the consent condition.
I know that the Bill team recently had a meeting with UUK at which this issue was discussed. Oxford University was not present, but this was not due to lack of interest or concern; it was agreed that Cambridge should represent the interests of Oxbridge as a whole. At this meeting, the Bill team was apparently clear that it had put exemptions in the Bill to protect the position of universities. I am glad that there is no policy dispute, but I have to say that my noble friends and I have been unable to identify the exemptions.
The Minister may say that it is a matter that will be dealt with by guidance, but I regret that in my view guidance will not suffice. This is a matter of huge importance to universities as well as to colleges and schools, and there needs to be clarity in the Bill. I look forward to the Minister’s response. If, as I suspect, we do not reach agreement today, I would be grateful if the Minister’s office could arrange a meeting with interested Peers so that we might discuss this further. I beg to move.
My Lords, I declare an interest as a fellow of All Souls College, Oxford. Although All Souls has no students and therefore no alumni, it has former fellows. I endorse everything that was very eloquently said by the noble Baroness. There is a problem here. It needs to be addressed. My understanding is that the Government are sympathetic to the mischief which the noble Baroness has identified. For the reasons she has explained, the mischief is not remedied by the terms of the Bill and I very much hope that the Government will be able to indicate today that they are sympathetic and are willing to meet the noble Baroness, Lady Royall, and others to find a way in which these concerns can be addressed as they ought to be.
My Lords, I have put my name to the amendment and I declare an interest as the warden of Wadham College, Oxford.
It is important to underline, as the noble Baroness has, that fundraising is now intrinsic to the financial well-being of institutions of higher education. That is certainly true of my college. It is intrinsic and critical because, along with conference business and other means of raising money, it helps to plug the gap that exists between fee levels for students and the real cost of educating them. It is clearly in the public interest that colleges and universities be placed in the strongest possible position to raise money to plug that gap.
It is equally important to bear in mind that the sort of fundraising that we are talking about does not involve random mailshots to unsuspecting victims, but regular contact over years with individuals who overwhelmingly regard themselves as members of a close community and are much more likely to complain if they are not contacted than if they are. I have experienced that many times. Requiring colleges to rebuild their alumni databases from scratch could serve no conceivable public benefit; indeed, it would lead to a significant public disbenefit, because it would weaken our ability to fundraise in already straitened financial circumstances.
I certainly agree with the noble Baroness that guidance would be insufficient in this situation. This matter is of such importance to the economic well-being of the institutions in question that it must be dealt with in the Bill. I very much look forward to hearing the Minister’s response and would wish to attend any meeting, should one be arranged.