Data Protection and Digital Information (No. 2) Bill

Public Bill Committee, 16 May 2023.

Philip Hollobone (Conservative, Kettering)

I have a few preliminary announcements that Mr Speaker would like me to make. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent mode. Tea and coffee are not allowed during sittings.

The selection list for today’s sitting, which is available in the room, shows how the selected amendments have been grouped for debate. Grouped amendments are generally on the same or a similar issue. Please note that decisions on amendments will take place not in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment will be taken when we come to the clause to which the amendment relates.

The Member who has put their name to the lead amendment in a group will be called first. Other Members will then be free to catch my eye to speak on all or any of the amendments within that group. A Member may speak more than once in a single debate. At the end of a debate on a group of amendments, I shall again call the Member who moved the lead amendment. Before they sit down, they will need to indicate to me whether they wish to withdraw the amendment or to seek a decision. If any Member wishes to press any other amendment in a group to a vote, they will need to let me know.

Clause 1 - Information relating to an identifiable living individual

John Whittingdale (Conservative, Maldon)

It is a pleasure to serve under your chairmanship, Mr Hollobone. May I thank all hon. Members for volunteering to serve on the Committee? When I spoke on Second Reading, I expressed my enthusiastic support for the Bill—just as well, really. I did not necessarily expect to be leading on it in Committee, but I believe it is a very important Bill. It is complex and will require quite a lot of scrutiny, but it will create a framework of real benefit to the UK, by facilitating the exchange of data and allowing us to take the maximum advantage of emerging technologies. I look forward to our debates over the next few days.

Clause 1 will create a test in legislation to help organisations to understand whether the data that they are processing is personal or anonymous. This is important, because personal data is subject to data protection rules but anonymous data is not. If organisations can be confident that the data they are processing is anonymous, they will be able to use it for important activities such as research and product development without concern about the potential impact on individuals’ personal data.

The new test will require data controllers considering whether data is personal or anonymous to consider two scenarios. The first is where a living individual can be identified by somebody within the data controller or processor’s own organisation using reasonable means at any point at which the data is being processed, from the initial point of collection for its use and storage to its eventual deletion or onward transmission. The second scenario is where the data controller or processor knows or should reasonably know that somebody outside the organisation is likely to obtain the information and to be able to re-identify individuals from it using reasonable means. That could be a research partner or a business client with whom the data controller intends to share the data, or an outside organisation that obtains the data as a result of the data controller not putting adequate security measures in place.

What would be considered “reasonable means” in any given case takes into account, among other things, the time, effort and cost of identifying the individual, as well as the technology available during the time the processing occurs. We hope that the clarity the test provides will give organisations greater confidence about using anonymous data for a range of purposes, from marketing to medical research. I commend the clause to the Committee.

Stephanie Peacock (Labour, Barnsley East)

It is a pleasure to serve under your chairship, Mr Hollobone. I echo the Minister’s thanks to everyone serving on the Bill Committee; it is indeed a privilege to be here representing His Majesty’s loyal Opposition. I look forward to doing our constitutional duty as we scrutinise the Bill today and in the coming sittings.

The definition of personal data is critical, not only to this entire piece of legislation, but to the data protection regime more widely. That is because the definition of what counts as personal data sets the parameters on who will benefit from protections and safeguards set out by the legislation, and, looking at it from the other side, the various protections will not apply when data is not classed as personal. It is therefore important that the definition should be clear for both controllers and data subjects, so that everyone understands where regulations and, by extension, rights do and do not apply.

The Bill defines personal data as that where a data subject can be identified by a controller or processor, or anyone likely to obtain the information,

“by reasonable means at the time of processing”.

According to the Bill, “reasonable means” take into account the time, effort, costs, technology and resources available to the person. The addition of “reasonable” to the definition has caused major concern among civil society groups, which are worried that it will introduce an element of subjectivity from the perspective of the controller when determining whether data is personal or not. Indeed, although recital 26 of the General Data Protection Regulation also refers to reasonable means—making this, in some ways, more of a formal change than a practical one—there must still be clear parameters on how controllers or processors are to make that judgment. Without those, there may be a danger of controllers and processors avoiding the requirement to comply with rules around personal data by simply claiming they do not have the means to identify living individuals within their resources.

Has the Department undertaken an impact assessment to determine whether the definition could, first, increase subjectivity in what counts as personal data, or secondly, reduce the amount of data classified as personal data? If an assessment identifies such a risk, what steps will the Department take to mitigate that and ensure that citizens are able to exercise their rights as they can under the current definition?

Other stakeholders have raised concerns that the phrase

“at the time of the processing”

in the definition might imply that there is no continuous obligation to consider whether data is personal. Indeed, under the current definition, where personal data is

“any information that relates to an identified or identifiable living individual”,

there is an implied obligation to consider whether an individual is identifiable on an ongoing basis. Rather than assessing the identifiability of a dataset at a fixed point, the controller or processor must keep the categorisation of data that it holds under careful review, taking into account technological developments, such as sophisticated new artificial intelligence or cross-referencing tools. Inserting the phrase

“at the time of the processing”

into this definition has prompted the likes of Which? to express concern that some processors may feel that they are no longer bound by this continuous obligation. That would be particularly worrying given the potential subjectivity of the new definition. If whether an individual is identifiable is based on “reasonable means”, including one’s resources and technology, it is perfectly feasible that, with a change of resources or technology, it could become reasonable to identify a person when once it was not.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

My hon. Friend is making an excellent speech. Does she agree that the absence of regard for the rate of technological change, particularly the rise of artificial intelligence—datasets are now being processed at phenomenal speeds—is potentially negligent on the part of the Government?

Stephanie Peacock (Labour, Barnsley East)

My hon. Friend makes an important point, which I will come to later.

In these circumstances, it is crucial that if a person is identifiable through data at any time in the future, the data is legally treated as personal so that the relevant safeguards and rights that GDPR was designed to ensure still apply.

When arguing for increased Secretary of State powers across the Bill, Ministers have frequently cited the need to future-proof the legislation. Given that, we must also consider the need to future-proof the definition of data so that technological advances do not render it useless. Does the new definition involve a continuous obligation to assess whether data is personal? Will guidance be offered to inform both controllers and data subjects on the application of this definition, so that both sides can be clear on how it will work in practice? As 5Rights has pointed out, that could avoid clogging up the regulator’s time with claims about what counts as personal data in many individual cases.

Finally, when determining whether data is personal, it is also vital that controllers take into account how a determined stalker or malicious actor might find and use their data. It is therefore good to see the change made since the first iteration of the Data Protection and Digital Information Bill, to clarify that

“obtaining the information as a result of the processing”

also includes information obtained as a result of inaction by a controller or processor—for example, as the result of a failure to put in place appropriate measures to prevent or reduce the risk of hacking.

Overall, it is important that we give both controllers and data subjects clarity about which data is covered by which protections, and when. I look forward to hearing from the Minister about the concerns that have been raised, which could affect the definition’s ability to allow for that clarity.

John Whittingdale (Conservative, Maldon)

I agree absolutely with the hon. Lady that the definition of personal data is central to the regime that we are putting in place. She is absolutely right that we need to be very clear and to provide organisations with clarity about what is within the definition of personal data and what is rightly considered to be anonymous. She asks whether the provision will lead to a reduction in the current level of protection. We do not believe that it will.

Clause 1 builds on the strong foundations used in GDPR recital 26 to clarify when data can be categorised as truly anonymous without creating undue risks. The aim of the provision in the Bill is to clarify when information should be considered to be personal data by including a test for identifiability in the legislation. That improved clarity will help organisations to determine when data can be considered truly anonymous and therefore pose almost no risk to the data subject.

The hon. Lady asked whether

“at the time of the processing”

extends into the future, and the answer is yes. The definition of data processing in the legislation is very broad and includes a lot of processing activities other than just the collection of data, such as alteration, retrieval, storage and disclosure by transmission, to name just a few. The phrase

“at the time of the processing”

could therefore cover a long period, depending on the nature and purpose of the processing. The test would need to be applied afresh for each new act of processing. That means that if at any point in the life cycle of processing, the data could be reasonably re-identified by someone by reasonable means, they would then not be able to legally consider to be anonymous. That includes transferring abroad to other regimes.

The clause makes it clear that a controller will have to consider the likelihood of re-identification at all stages of the processing activity. If a data controller held a dataset for several years, they would need to be mindful of the technologies available during that time that might be used to re-identify it. As the hon. Lady said, technology is advancing very fast and could well change over time from the point at which the data is first collected.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

I appreciate the Minister’s clarification. He has just said that the test of identification would apply when sharing the data with another authority. However, once that has been done, the test no longer applies. Does he accept that it is possible for data to be shared that could not by this test reasonably be identified but that, over time, in a different authority, could reasonably be identified, without the data subject having any redress?

John Whittingdale (Conservative, Maldon)

If data is shared and then held by a new controller, it will be still subject to the same protections even though it has been transferred from the original. It is important that there should be the ability to continue to apply protection no matter what technology evolves over the course of time, but it will still be subject to the same protection and, of course, still be enforceable through the Information Commissioner.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Would it be subject to the same protection if it was transferred abroad?

John Whittingdale (Conservative, Maldon)

Again, yes, it will. It will be transferred abroad only if we are satisfied that the recipient will impose the same level of protection that we regard as necessary in this country.

Clause 2 - Meaning of research and statistical purposes

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 66, clause 2, page 4, line 8, at end insert—

“(c) do not include processing of personal data relating to children for research carried out as a commercial activity.”

This amendment would exempt children’s data from being used for commercial purposes under the definition of scientific purposes in this clause.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss:

Amendment 65, clause 2, page 4, line 21, at end insert—

“7. The Commissioner must prepare a code of practice under section 124A of the Data Protection Act 2018 on the interpretation of references in this Regulation to “scientific research”.

8. The code of practice prepared under paragraph 7 must include examples of the kinds of research purposes, fields, controllers, and ethical standards that are to be considered as being scientific, and those that are excluded from being so considered.”

This amendment would require a statutory code of practice from the ICO on how the definition of scientific research in this clause is to be interpreted.

Clause stand part.

Stephanie Peacock (Labour, Barnsley East)

Fuelling safe scientific research through data will be vital to support the UK’s ambition to become a science superpower. We understand that, as is the case in many areas of data protection law, lack of clarity about what counts as processing for scientific purposes causes organisations to take a risk-averse approach to conducting research. An understanding of exactly what is included would therefore give organisations confidence they need to conduct vital processing that will allow for the scientific discoveries and benefits of the future.

Unfortunately, the clause makes the same mistake as the Bill does in general by focusing on easing regulations on those who hold data, rather than looking at how data can be harnessed for the general greater good. It misses the opportunity to unlock the benefits of safely redistributing and sharing data. Indeed, none of the clauses on processing for research purposes make any attempt to explore options to incentivise controllers to share their data with independent researchers. Similarly, the Bill does not explore how the likes of data trusts or co-operatives that pool data resources in the interests of a larger group of beneficiaries or organisations could create a stronger environment for research. Instead, it leaves those who already collect and hold data to benefit from the regime by processing for their own research purposes, while those who might hope to collaborate will use alternative data sets and are no better off.

By failing to think about the safe sharing of data to fuel scientific research, the Government limit the progress the UK could make as a powerhouse of science innovation. The Bill leaves only those organisations with large amounts of data able to contribute to such progress, entrenching existing power structures and neglecting the talent held in the smaller independent organisations that would otherwise be able to conduct research for the public good.

Turning to amendment 65, it has always been written into the GDPR, in recital 159, that processing for scientific purposes should be interpreted broadly. It is therefore understandable why Ministers provided a broad definition in the Bill that allows for those conducting genuine scientific research to have absolute confidence that their processing falls under this umbrella, preventing a risk-averse environment. However, stakeholders, including Reset.tech and the Ada Lovelace Institute, have expressed worries that clause 2 goes a little too far, essentially providing a blank cheque for private companies to self-identify as conducting scientific research as a guise for processing personal information for any purpose they choose.

All that must be understood in combination with clause 9, which gives organisations an exemption from purpose limitation, allowing them to reuse data as long as it is for scientific purposes, as defined in clause 2. Indeed, though the Bill contains a few clarifications of what the definition in clause 2 includes, such as publicly and privately funded processing, commercial or non-commercial processing and processing for the likes of technological development, fundamental research, or applied research, I am keen to hear from the Minister about what specific purposes would actually be ruled out under the letter of the current definition. For example, as the Ada Lovelace Institute asked, would pseudoscientific applications, such as polygraphy or experimental AI claiming to predict an individual’s religion, politics or sexuality, be categorically ruled out under the current definition?

Though it may not be the intention in the clause to enable malicious or pseudoscientific processing under the definition of science, we must ensure that the definition is not open to exploitation, or so broad that any controller could reasonably identify their processing as falling under it. Regulator guidance would be in a prime position to do that. By providing context as to what must be considered for something to be reasonably classified as scientific—for example, the purpose of the research, the field of research, the type of controller carrying it out, or the methodological and ethical standards used—controllers using the definition legitimately will feel even more assured, and malicious processing will be explicitly excluded from the application of the definition. Amendment 65 would do nothing to stop genuinely scientific research from benefiting from the changes in this Bill and would provide further clarity around how the definition can be legitimately relied upon.

Turning to amendment 66, 5Rights is a leading non-governmental, non-profit charitable organisation that seeks to reimagine the digital world in a way that works for children. Like others, it has shared concerns that relaxing the legal bases on which personal data can be processed for scientific research to include privately funded research carried out by commercial entities could open the door for children’s data to be exploited for commercial purposes. Clause 9 will change rules to allow processors to not inform data subjects about the reuse of their data so long as it is for scientific purposes, even if that is on a commercial basis.

Even under the existing regulatory framework, there have been plenty of examples where controllers have claimed to be using data in the best interests of young people while actually causing them harm. The development of educational technology is widely cited as the future of education, with the industry rapidly expanding because of online learning during the pandemic. However, although such technologies and services claim to be for the benefit of children, many have used children’s data in irresponsible ways.

A 2022 report by Human Rights Watch reviewed 165 ed tech products endorsed by 49 Governments worldwide that were deployed in schools and colleges during the lockdowns. The study found that 89% of the products engaged in data practices that put children’s rights at risk, undermined them or actively violated them. Companies monitored children without their consent or knowledge and harvested data on what they do, who they are, where they live or study and who their family and friends are to the extent that the report concluded that the only way for children to protect themselves from the invasion would be to throw their devices in the trash.

The majority of learning platforms also sent or allowed advertising technology companies to access children’s data. These ad tech companies, many of which are owned by the most powerful companies in the world, can then analyse and profile children, piecing the information together with data from other public or private sources to create detailed profiles that are used to place targeted adverts or can be sold to advertisers. From that study and others like it we can clearly see that even under the current rules children’s data is vulnerable to being exploited for commercial gain. It would therefore be a great mistake to make the processing of children’s data for commercial purposes even less transparent than it already is.

As was the aim with the age appropriate design code, it is important that we give children a high level of privacy rights by default. Where children’s data is concerned, extra safeguards must be in place to ensure that any processing that occurs is in their best interests. Amendment 66 seeks to set an example of such a safeguard in practice, providing an exemption for children’s data from being defined as scientific where it is being used for commercial purposes. It will hopefully create a precedent whereby children’s rights are automatically given the best protection possible.

I would like to finish by asking the Minister whether his Department has considered the impact of the new legislation on commercial scientific processing on children specifically. If so, what measures have been taken to ensure that the Bill does not put children’s personal data at risk of exploitation?

Damian Collins (Conservative, Folkestone and Hythe)

I wish to pose a couple of questions, after two thoughtful and well-presented amendments from those on the Opposition Front Bench. With regard to children and the use of apps such as TikTok, what assurance will the Government seek to ensure that companies that process and store data abroad are abiding by the principles of our domestic legislation? I mention TikTok directly because it stores data from UK users, including children, in Singapore, and it has made clear in evidence to the Joint Committee on the Online Safety Bill that that data is accessed by engineers in China who are working on it.

We all know that when data is taken from a store and used for product development, it can be returned in its original state but a huge amount of information is gathered and inferred from it that is then in the hands of engineers and product developers working in countries such as China and under very different jurisdictions. I am interested to know what approach we would take to companies that store data in a country where we feel we have a data equivalence regime but then process the data from a third location where we do not have such a data agreement.

John Whittingdale (Conservative, Maldon)

I welcome the recognition of the importance of allowing genuine research and the benefits that can flow from it. Such research may well be dependent on using data and the clause is intended to provide clarity as to exactly how that can be done and in what circumstances.

I will address the amendments immediately. I am grateful to the hon. Member for Barnsley East for setting out her arguments and we understand her concerns. However, I think that the amendments go beyond what the clause proposes and, in addition, I do not think that there is a foundation for those concerns. As we have set out, clause 2 inserts in legislation a definition for processing for scientific research, historical research and statistical purposes. The definition of scientific research purposes is set out as

“any research that can be reasonably described as scientific”

and I am not sure that some of the examples that the hon. Lady gave would meet that definition.

The definitions inserted by the clause are based on the wording in the recitals to the UK GDPR. We are not changing the scope of these definitions, only their status in the legislation. They will already be very familiar to people using them, but setting them out in the Bill will provide more clarity and legal certainty. We have maintained a broad scope as to what is allowed to be included in scientific research, with the view that the regulator can add more nuance and context through guidance, as is currently the case. The power to require codes of practice provides a route for the Secretary of State to require the Information Commissioner to prepare any code of practice that gives guidance on good practice in processing personal data.

There will be situations where non-statutory guidance, which can be produced without being requested under regulations made by the Secretary of State, may be more appropriate than a statutory code of practice. Examples of the types of activity that are considered scientific research and the indicative criteria that a researcher should demonstrate are best placed in non-statutory guidance produced by the Information Commissioner’s Office. That will give flexibility to amend and change the examples when necessary, so I believe that the process does not change the provision. However, putting it in the legislation, rather than in the recitals, will impose stronger safeguards and make things clearer. Once the Bill has come into effect, the Government will continue to work with the ICO to update its already detailed and helpful guidance on the definition of scientific research as necessary.

Amendment 66 would prohibit the use of children’s data for commercial purposes under the definition of scientific research. The definition inserted by clause 2 includes the clarification that processing for scientific research carried out as a commercial activity can be considered processing for scientific research purposes. Parts of the research community asked for that clarification in response to our consultation. It reflects the existing scope, as is already clear from the ICO’s guidance, and we have seen that research by commercial bodies can have immense societal value. For instance, research into vaccines and life-saving treatments is clearly in the public interest. I entirely understand the hon. Lady’s concern for children’s privacy, but we think that her amendment could obstruct important research by commercial organisations, such as research into children’s diseases. I think that the Information Commissioner would make it clear as to whether or not the kind of example that the hon. Lady gave would fall within the definition of research for scientific purposes.

I also entirely understand the concern expressed by my hon. Friend the Member for Folkestone and Hythe. I suspect that the question about the sharing of data internationally, particularly, perhaps, by TikTok, may recur during the course of our debates. As he knows, we would share data internationally only if we were confident that it would still be protected in the same way that it is here, which would include considering the possibility of whether or not it could then be passed on to a third country, such as China.

I hope that I can reassure the hon. Lady that emphasising the safeguards that researchers must comply with in clause 22 to protect individuals relates to all data used for these purposes, including children’s data and the protections afforded to children under the UK GDPR. For those reasons, I hope that she will be willing to withdraw her amendment.

Stephanie Peacock (Labour, Barnsley East)

I am disappointed that the Minister does not accept amendment 66. Let me make a couple of brief points about amendment 65. The Minister said that he was not sure whether some of the examples I gave fitted under the definition, and that is what the amendment speaks to. I asked what specific purposes would be ruled out under the letter of the current definition, and that is still not clear, so I will press the amendment to a vote.

Clause 3 - Consent to processing for the purposes of scientific research

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss clause 4 stand part.

John Whittingdale (Conservative, Maldon)

The clause clarifies how the conditions for consent will be met in certain circumstances when processing for scientific research purposes. It clarifies an existing concept of “broad consent” that is currently found in the recitals. The measure will enable consent to be obtained for an area of scientific research when the researcher cannot fully identify the purposes for which they are collecting the data.

Consent under UK GDPR must be for a specific purpose, but in scientific research the precise purpose may not be fully known when the data is collected. For example, the initial aim may be the study of cancer, and then later becomes the study of a particular cancer type. Currently, the UK GDPR recitals clarify that consent may be given for an area of scientific research, but as the recitals are only an interpretative aid that may not give scientists the certainty that they need. The clause will therefore add the ability to give broad consent for scientific research into the operative text of the UK GDPR, giving scientists greater certainty and confidence. The clause contains a number of safeguards to protect against misuse. That includes the requirement that seeking consent is consistent with ethical standards that are generally recognised and relevant to that area of research.

Although law enforcement agencies have the power to process personal data with the permission of the individual, there is no definition of consent in the legislation. Clause 4 again mirrors the UK GDPR definition of consent, including the conditions that must be met in order for it to be used as a lawful basis for processing. That change will address the slight risk that consent may be interpreted inconsistently with the definition used in the UK GDPR. We are taking this opportunity to make our data protection laws more consistent, by clarifying terminology for both organisations and individuals. I therefore commend the clauses to the Committee.

Stephanie Peacock (Labour, Barnsley East)

With regard to clause 3, I refer Members to my remarks on clause 2. It is sensible to clarify how controllers and processors conducting scientific research can gain consent where it is not possible to fully identify the full set of uses for that data when it is collected. However, what counts as scientific, and therefore what is covered by the clause, must be properly understood by both data subjects and controllers through proper guidance issued by the ICO.

Clause 4 is largely technical and inserts the recognised definition of consent into part 3 of the Data Protection Act 2018, for use when it is inappropriate to use one of the law enforcement purposes. I will talk about law enforcement processing in more detail when we consider clauses 16, 24 and 26, but I have no problem with the definition in clause 4 and am happy to accept it.

John Whittingdale (Conservative, Maldon)

I am grateful to the hon. Lady for her support. I agree with her on the importance of ensuring that the definition of scientific research is clear. That is something on which I have no doubt the ICO will also issue guidance.

Clause 5 - Lawfulness of processing

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 68, in clause 5, page 6, line 37, at end insert—

“7A. The Secretary of State may not make regulations under paragraph 6 unless—

(a) following consultation with such persons as the Secretary of State considers appropriate, the Secretary of State has published an assessment of the impact of the change to be made by the regulations on the rights and freedoms of data and decision subjects (with particular reference to children),

(b) the Commissioner has reviewed the Secretary of State’s statement and published a statement of the Commissioner’s views on whether the change should be made, with reasons, and

(c) the Secretary of State has considered whether to proceed with the change in the light of the Commissioner’s statement.”

This amendment would make the Secretary of State’s ability to amend the conditions in Annex 1 which define “legitimate interests” subject to a requirement for consultation with interested parties and with the Information Commissioner, who would be required to publish their views on any proposed change.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Amendment 67, in clause 5, page 7, line 18, at end insert—

“11. Processing may not be carried out in reliance on paragraph 1(ea) unless the controller has published a statement of—

(a) which of the conditions in Annex 1 has been met which makes the processing necessary,

(b) what processing will be carried out in reliance on that condition, or those conditions, and

(c) why that processing is proportionate to and necessary for the purpose or purposes indicated in the condition or conditions.”

This amendment would require controllers to document and publish (e.g. in a privacy notice) a short statement on their reliance on a “recognised legitimate interest” for processing personal data.

Clause stand part.

Stephanie Peacock (Labour, Barnsley East)

At present, the lawful bases for processing are set out in article 6 of the UK GDPR. At least one of them must apply whenever someone processes personal data. They are consent, contract, legal obligation, vital interests, public task, and legitimate interests. That is where data is being used in ways that we would reasonably expect, there is minimal privacy impact, or there is a compelling justification for processing. Of the existing lawful bases, consent is by far the most relied upon, as it is the most clear. There have therefore been calls for the other lawful bases to be made clearer and easier to use. It is welcome to see some examples of how organisations might rely on the legitimate interests lawful ground brought on to the statute book.

At the moment, in order to qualify for using legitimate interests as grounds for lawful processing, a controller must also complete a balancing test. The balancing test is an important safeguard. As per the ICO, it requires controllers to consider the interests and fundamental rights and freedoms of the individual, and whether they override the legitimate interests that the controller has identified. That means at a minimum considering the nature of the personal data being processed, the reasonable expectations of the individual, the likely impact of processing on the individual, and whether any safeguards can be put in place to mitigate any negative impacts.

As tech.UK mentioned, the introduction of a list of legitimate interests no longer requiring that test is something many have long called for. When conducting processing relating to an emergency, for example, the outcome of a balancing test often very obviously weighs in one direction, making the decision straightforward, and the test itself an administrative task that may slow processing down. It makes sense in such instances that a considered exemption might apply.

However, given the reduction in protection and control for consumers when removing a balancing test, it is vital that a list of exemptions is limited and exhaustive, and that every item on such a list is well consulted on. It is also vital that the new lawful basis cannot be relied upon in bad faith or exploited by those who simply want to process without the burden, for reasons outside of those listed in annex 1. The Bill as it currently stands does not do enough to ensure either of those things, particularly given the Secretary of State’s ability to add to the list on a whim.

I turn to amendment 67. Although it is likely not the intention for the clause to be open to exploitation, Reset.tech, among many others, has shared concerns that controllers may be able to abuse the new lawful basis of “recognised legitimate interests”, stretching the listed items in annex 1 to cover some or all of their processing, and giving themselves flexibility over a wide range of processing without an explicit requirement to consider how that processing affects the rights of data and decision subjects. That is particularly concerning where controllers may be able to conflate different elements of their processing.

Reset.tech and AWO provide a theoretical case study to demonstrate that point. Let us say that there is a gig economy food delivery company that processes a range of data on workers, including minute-by-minute location data. That location data would be used primarily for performance management, but could occasionally be used in more extreme circumstances to detect crime—for example, detecting fraud by workers who are making false claims about how long they waited for an order to be ready for delivery. By exploiting the new recognised legitimate interests basis, the company could conflate its purposes of performance management and detecting crime, and justify the tracking of location data as a whole as being exempt from the balancing test, without having to record or specify exactly which processing is for the detection of crime.

Under the current regime, there remain two tests other than the balancing test that form a complete assessment of legitimate interests and help to prevent conflation of that kind. First, there is the purpose test, which requires the controller to identify which legitimate interest the company is relying upon. Secondly, there is the necessity test, which requires the controller to consider whether the processing that the company intends to conduct is necessary and proportionate to meet its purposes.

In having to conduct those tests, the food delivery company would find it much more difficult to conflate its performance management and crime prevention purposes, as it would have to identify and publicly state exactly which elements of its processing are covered by the legitimate interest purpose of crime prevention. That would make it explicit that any processing the company conducts for the purposes of performance management is not permitted under a recognised legitimate interest, meaning that a lawful basis for that processing would be required separately.

Amendment 67 therefore seeks to ensure that the benefits of the purpose and necessity tests are retained, safeguarding the recognised legitimate interests list from being used to cynically conflate purposes and being exploited more generally. In practice, that would mean that controllers relying on a purpose listed in annex 1 for processing would be required to document and publish a notice that explains exactly which processing the company is conducting under which purpose, and why it is necessary.

It is foundational to the GDPR regime that each act of processing has a purpose, so this requirement should just be formalising and publishing what controllers are already required to consider. The measure that the amendment seeks to introduce should therefore be no extra burden on those already complying in good faith, but should still act as a barrier to those attempting to abuse the new basis.

I turn to amendment 68. As the likes of Which? have argued, any instance of removing the balancing test will inevitably enable controllers to prioritise their interests in processing over the impact on data subjects, resulting in weaker protections for data subjects and weaker consumer control. Which? research, such as that outlined in its report “Control, Alt or Delete? The future of consumer data”, also shows that consumers value control over how their data is collected and used, and that they desire more transparency, rather than less, on how their data is used.

With those two things in mind—the value people place on control of their data and the degradation of that control as a result of removing the balancing test—it is vital that the power to remove the balancing test is used extremely sparingly on carefully considered, limited purposes only. Even for those purposes already included in annex 1, it is unclear exactly what impact assessment took place to ensure that the dangers of removing the test on the rights of citizens did not outweigh the positives of that removal.

It would therefore be helpful if the Minister could outline the assessment and analysis that took place before deciding the items on the list. Although it is sensible to future-proof the list and amend it as needs require, this does not necessarily mean vesting the power to do so in the Secretary of State’s hands, especially when such a power is open to potential abuse. Indeed, to say that the Secretary of State must have regard to the interests and fundamental rights and freedoms of data subjects and children when making amendments to the list is simply not a robust enough protection for citizens. Our laws should not rely on the good nature of the Secretary of State; they must be comprehensive enough to protect us if Ministers begin to act in bad faith.

Further, secondary legislation simply does not offer the scrutiny that the Government claim it does, because it is rarely voted on. Even when it is, if the Government of the day have a majority, defeating such a vote is incredibly rare. For the method of changing the list to be protected from the whims of a bad faith Secretary of State who simply claims to have had regard to people’s rights, proper consultation should be undertaken by the regulator on any amendments before they are considered for parliamentary approval.

This amendment would move the responsibility for judging the impact of changes away from the Secretary of State and place it with the regulator on a yearly basis, ensuring that amendments proceed only if they are deemed, after consultation, to be in the collective societal interest. That means there will be independent assurance that any amendments are not politically or maliciously motivated. This safeguard should not be of concern to anyone prepared to act in good faith, particularly the current Secretary of State, as it would not prevent the progression in Parliament of any amendments that serve the common good. The amendment represents what genuine future-proofing in a way that retains appropriate safeguards looks like, as opposed to what ends up looking like little more than an excuse for a sweeping power grab.

John Whittingdale (Conservative, Maldon)

I welcome the hon. Lady’s recognition of the value of setting out a list of legitimate interests to provide clarity, but I think she twice referred to the possibility of the Secretary of State adding to it on a whim. I do not think we would recognise that as a possibility. There is an established procedure, which I would like to go through in responding to the hon. Lady’s concerns. As she knows, one of the key principles of our data protection legislation is that any processing of personal data must be lawful. Processing will be lawful where an individual has given his or her consent, or where another specified lawful ground in article 6 of the UK GDPR applies. This includes where the processing is necessary for legitimate interests pursued by the data controller, providing that those interests are not outweighed by an individual’s privacy rights.

Clause 5 addresses the concerns that have been raised by some organisations about the difficulties in relying on the “legitimate interests” lawful ground, which is used mainly by commercial organisations and other non-public bodies. In order to rely on it, the data controller must identify what their interest is, show that the processing is necessary for their purposes and balance their interests against the privacy right of the data subject. If the rights of the data subject outweigh the interests of the organisation, the processing would not be lawful and the controller would need to identify a different lawful ground. Regulatory guidance strongly recommends that controllers document the outcome of their legitimate interests assessments.

As we have heard, and as the hon. Lady recognises, some organisations have struggled with the part of the legitimate interests assessment that requires them to balance their interests against the rights of individuals, and concern about getting the balancing test wrong—and about regulatory action that might follow as a result—can cause risk aversion. In the worst-case scenario, that could lead to crucial information in the interests of an individual or the public—for example, about safeguarding concerns—not being shared by third-sector and private-sector organisations. That is why we are taking steps in clause 5 and schedule 1 to remove the need to do the balancing test in relation to a narrow range of recognised legitimate activities that are carried out by non-public bodies. Those activities include processing, which is necessary for the purposes of safeguarding national security or defence; responding to emergencies; preventing crimes such as fraud or money laundering; safeguarding vulnerable individuals; and engaging with the public for the purposes of democratic engagement.

Amendment 68, tabled by the hon. Member for Barnsley East, would prevent the Secretary of State from using the regulation-making powers in the clause to add to the list of activities for which no balancing test is required unless she has first published an assessment of the impact of the change on the rights of individuals and formally considered any views of the Information Commissioner. The amendment is unnecessary because, as drafted, the clause already requires the Secretary of State to consider the impact of any changes to the list of the rights and freedoms of individuals and, where relevant, the need to provide children with special protection with regard to their personal data.

The regulation-making powers in the clause will also be subject to the new requirements in clause 44. They provide that any regulations made under the UK GDPR are subject to consultation with the commissioner and such other persons as the Secretary of State considers appropriate.

Damian Collins (Conservative, Folkestone and Hythe)

Will my right hon. Friend confirm whether the Information Commissioner’s advice will be published, either by the commissioner, the Minister or Parliament—perhaps through the relevant Select Committee?

John Whittingdale (Conservative, Maldon)

I am not sure it would necessarily be published. I want to confirm that, but I am happy to give a clear response to the Committee in due course if my hon. Friend will allow me.

As well as the advice that the Information Commissioner supplies, the proposal is also subject to the affirmative procedure, as the hon. Member for Barnsley East recognised, so Parliament could refuse to approve any additions to the list that do not respect the rights of data subjects. She suggested that it is rare for an affirmative resolution to be rejected by Parliament; nevertheless, it is part of our democratic proceedings, and every member of the Committee considering it will have the opportunity to reach their own view and vote accordingly. I hope that reassures the hon. Lady that there are already adequate safeguards in place in relation to the exercise of powers to add new activities to the list of recognised legitimate interests.

Amendment 67, which the hon. Lady also tabled, would require data controllers to publish a statement if they are relying on the new recognised legitimate interests lawful ground. The statement would have to explain what processing would be carried out in reliance on the new lawful ground and why the processing is proportionate and necessary for the intended purpose. In our view, the amendment would significantly weaken the clause. It would reintroduce something similar to the legitimate interests assessment, which, as we have heard, can unnecessarily delay some very important processing activities. In scenarios involving national security or child protection, for example, the whole point of the clause is to make sure that relevant and necessary personal data can be shared without hesitation to protect vulnerable individuals or society more generally.

I hope the hon. Lady is reassured by my response and agrees to withdraw her amendments. I commend clause 5 to the Committee.

Stephanie Peacock (Labour, Barnsley East)

We do not believe that amendment 67 would place an extra burden on those who are already complying in good faith. The idea behind it is that it will be a barrier to those attempting to abuse the new basis.

On amendment 68, we should not have laws that rely on the Secretary of State’s good faith. As the Minister said, it is pretty rare for secondary legislation to be voted on, and for the Government to lose, so I do not see that as a barrier. The hon. Member for Folkestone and Hythe highlighted that although there are some protections, we do not believe that the Government protections go as far as we would like. For that reason, I will press the amendment to a vote.

Schedule 1 - Lawfulness of processing: recognised legitimate interests

John Whittingdale (Conservative, Maldon)

I beg to move amendment 30, in schedule 1, page 137, line 28, leave out “fourth day after” and insert

“period of 30 days beginning with the day after”.

Annex 1 to the UK GDPR makes provision about processing for democratic engagement purposes, including certain processing by elected representatives. This amendment increases the period for which former members of the Westminster Parliament and the devolved legislatures continue to be treated as "elected representatives" following an election. See also NC6 and Amendment 31.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Government amendment 31.

John Whittingdale (Conservative, Maldon)

As the Committee will be aware, data protection legislation prohibits the use of “special category” data—namely, information about a person that is sensitive in nature—unless certain conditions or exemptions apply. One such exemption is where processing is necessary on grounds of substantial public interest.

Schedule 1 to the Data Protection Act 2018 sets out a number of situations where processing would be permitted on grounds of substantial public interest, subject to certain conditions and safeguards. That includes processing by elected representatives who are acting with the authority of their constituents for the purposes of progressing their casework. The current exemption applies to former Members of the Westminster and devolved Parliaments for four days after a general election—for example, if the MP has been defeated or decides to stand down. That permits them to continue to rely on the exemption for a short time after the election to conclude their parliamentary casework or hand it over to the incoming MP. In practice, however, it can take much longer than that to conclude these matters.

New clause 6 will therefore extend what is sometimes known as the four-day rule to 30 days, which will give outgoing MPs and their colleagues in the devolved Parliaments more time to conclude casework. That could include handing over live cases to the new representative, or considering what records should be retained, stored and deleted. When MPs leave office, there is an onus on them to conclude their casework in a timely manner. However, the sheer volume of their caseload, on top of the other work that needs to be done when leaving office, means that four days is just not enough to conclude all relevant business. The new clause will therefore avoid the unwelcome situation where an outgoing MP who is doing his or her best to conclude constituency casework could be acting unlawfully if they continue to process their constituents’ sensitive data after the four-day time limit has elapsed. Extending the time limit to 30 days will provide a pragmatic solution to help outgoing MPs while ensuring the exemptions cannot be relied on for an indefinite period.

Government amendments 30 and 31 will make identical changes to other parts of the Bill that rely on the same definition of “elected representative”. Government amendment 30 will change the definition of “elected representative” when the term appears in schedule 1. As I mentioned when we debated the previous group of amendments, clause 5 and schedule 1 to the Bill create a new lawful ground for processing non-sensitive personal data, where the processing is necessary for a “recognised legitimate interest”. The processing of personal data by elected representatives for the purposes of democratic engagement is listed as such an interest, along with other processing activities of high public importance, such as crime prevention, safeguarding children, protecting national security and responding to emergencies.

Government amendment 31 will make a similar change to the definition of “elected representative” when the term is used in clause 84. Clauses 83 and 84 give the Secretary of State the power to make regulations to exempt elected representatives from some or all of the direct marketing rules in the Privacy and Electronic Communications (EC Directive) Regulations 2003. I have no doubt that we will debate the merits of those clauses in more detail later in Committee, but for now it makes sense to ensure that there is a single definition of “elected representative” wherever it appears in the Bill. I hope the hon. Member for Barnsley East and other colleagues will agree that those are sensible suggestions and will support the amendments.

Stephanie Peacock (Labour, Barnsley East)

This set of Government provisions will increase the period for which former MPs and elected representatives in the devolved regions can use the democratic engagement purpose for processing. On the face of it, that seems like a sensible provision that allows for a transition period so that data can be deleted, processed, or moved on legally and safely after an election, and the Opposition have a huge amount of sympathy for it.

I will briefly put on record a couple of questions and concerns. The likes of the Ada Lovelace Institute have raised concerns about the inclusion of democratic engagement purposes in schedule 1. They are worried, particularly with the Cambridge Analytica scandal still fresh in people’s minds, that allowing politicians and elected parties to process data for fundraising and marketing without a proper balancing test could result in personal data being abused for political gain. The decision to make processing for the purposes of democratic engagement less transparent and to remove the balancing test that measures the impact of that processing on individual rights may indicate that the Government do not share the concern about political processing. Did the Minister’s Department consider the Cambridge Analytica scandal when drawing up the provisions? Further, what safeguards will be in place to ensure that all data processing done under the new democratic engagement purpose is necessary and is not abused to spread misinformation?

John Whittingdale (Conservative, Maldon)

I would only say to the hon. Lady that I have no doubt that we will consider those aspects in great detail when we get to the specific proposals in the Bill, and I shall listen with great interest to my hon. Friend the Member for Folkestone and Hythe, who played an extremely important role in uncovering what went on with Cambridge Analytica.

Damian Collins (Conservative, Folkestone and Hythe)

The principle that underpinned what happened in the Cambridge Analytica scandal was the connection of Facebook profiles to the electoral register. If I understand my right hon. Friend the Minister correctly, what he is talking about would not necessarily change that situation. This could be information that the political campaign has gained anyway from a voter profile or from information that already exists in accounts it has access to on platforms such as Facebook; it would simply be attaching that, for the purposes of targeting, to people who voted in an election. The sort of personal data that Members of Parliament hold for the purposes of completing casework would not have been processed in that way. These proposals would not change in any way the ability to safeguard people’s data, and companies such as Cambridge Analytica will still seek other sources of open public data to complete their work.

John Whittingdale (Conservative, Maldon)

I think my hon. Friend is right. I have no doubt that we will go into these matters in more detail when we get to those provisions. As the hon. Member for Barnsley East knows, this measure makes a very narrow change to simply extend the existing time limit within which there is protection for elected representatives to conclude casework following a general election. As we will have opportunity in due course to look at the democratic engagement exemption, I hope she will be willing to support these narrow provisions.

Stephanie Peacock (Labour, Barnsley East)

I am grateful for the Minister’s reassurance, and we are happy to support them.

Clause 6 - The purpose limitation

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 69, in clause 6, page 9, leave out lines 7 to 20.

This amendment would remove the ability of the Secretary of State to amend Annex 2, so they could not make changes through secondary legislation to the way purpose limitation operates.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss clause stand part.

Stephanie Peacock (Labour, Barnsley East)

One of the key principles in article 5 of the EU GDPR is purpose limitation. The principle aims to ensure that personal data is collected by controllers only for specified, explicit and legitimate purposes. Generally speaking, it ensures that the data is not further processed in a manner that is incompatible with those purposes. If a controller’s purposes change over time, or they want to use data for a new purpose that they did not originally anticipate, they can go ahead only if the new purpose is compatible with the original purpose, they get the individual’s specific consent for the new purpose or they can point to a clear legal provision requiring or allowing the new processing in the public interest.

Specifying the reasons for obtaining data from the outset helps controllers to be accountable for their processing and helps individuals understand how their data is being used and whether they are happy with that, particularly where they are deciding whether to provide consent. Purpose limitation exists so that it is clear why personal data is being collected and what the intention behind using it is.

John Whittingdale (Conservative, Maldon)

The clause sets out the conditions under which the reuse of personal data for a new purpose is permitted. As the hon. Lady has said, the clause expands on the purpose limitation principle. That key principle of data protection ensures that an individual’s personal data is reused only in ways they might reasonably expect.

The current provisions in the UK GDPR on personal data reuse are difficult for controllers and individuals to navigate. That has led to uncertainty about when controllers can reuse personal data. The clause addresses the existing uncertainty around reusing personal data by setting out clearly when it is permitted. That includes when personal data is being reused for a very different purpose from that for which it was originally collected—for example, when a company might wish to disclose personal data for crime prevention.

The clause permits reuse of personal data by a controller when the new purpose is “compatible”; they get fresh consent; there is a research purpose; UK GDPR is being complied with, such as for anonymisation or pseudonymisation purposes; there is an objective in the public interest authorised by law; and certain specified objectives in the public interest set out in a limited list in schedule 2 are met. I will speak more about that when we come to the amendment and the debate on schedule 2.

The clause contains a power to add or amend conditions or remove conditions added by regulations from that list to ensure it can be kept up to date with any future developments in how personal data should be reused in the public interest. It also sets out restrictions on reusing personal data that the controller originally collected on the basis of consent.

The Government want to ensure that consent is respected to uphold transparency and maintain high data protection standards. If a person gives consent for their data to be processed for a specific purpose, that purpose should be changed without their consent only in limited situations, such as for certain public interest purposes, if it would be unreasonable to seek fresh consent. That acts as a safeguard to ensure that organisations address the possibility of seeking fresh consent before relying on any exemptions.

The restrictions around consent relate to personal data collected under paragraph 1(a) of article 6 of the UK GDPR, which came into force in May 2018. Therefore, they do not apply to personal data processed on the basis of consent prior to May 2018, when different requirements applied. By simplifying the rules on further processing, the clause will give controllers legal certainty on when they can reuse personal data and give individuals greater transparency. I support the clause standing part of the Bill.

Let me turn to amendment 69, which proposes to remove the power set out in the clause to amend the annex in schedule 2. As I have already said, schedule 2 will insert a new annex in the UK GDPR, which sets out certain specific public interest circumstances where personal data reuse is permitted. The list is strictly limited and exhaustive, so a power is needed to ensure that it is kept up to date with any future developments in how personal data is reused for important public interest purposes. That builds on an existing power in schedule 2 to the Data Protection Act 2018, where there is already the ability to make exceptions to the purpose limitation principle via secondary legislation.

The power in the clause also provides the possibility of narrowing a listed objective if there is evidence of any of the routes not being used appropriately. That includes limiting it, by reference, to the lawful ground of the original processing—for example, to prohibit the reuse of data that was collected on the basis of an individual’s consent.

I would like to reassure the hon. Lady that this power will be used only when necessary and in the public interest. That is why the clause contains a restriction on its use; it may be used only to safeguard an objective listed in article 23 of the UK GDPR. Clause 44 of the Bill also requires that the Secretary of State must consult the commissioner, and any other persons as the Secretary of State considers appropriate, before making any regulations.

On that basis, I hope the hon. Lady will accept that the amendment is unnecessary.

Stephanie Peacock (Labour, Barnsley East)

The purpose behind our amendment —this speaks to a number of our amendments—is that we disagree with the amount of power being given to the Secretary of State. For that reason, I would like to continue with my amendment.

purpose

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 71, in schedule 2, page 138, line 16, leave out “states” and insert “confirms”.

This amendment would require a person who needs personal data for a purpose described in Article 6(1)(e) (a task carried out in the public interest or in the exercise of official authority vested in the controller) to confirm, and not merely to state, that they need the data for legitimate purposes.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Amendment 70, in schedule 2, page 139, line 30, at end insert

“levied by a public authority”.

This amendment would clarify that personal data could be processed as a “legitimate interest” under this paragraph only when the processing is carried out for the purposes of the assessment or collection of a tax or duty or an imposition of a similar nature levied by a public authority.

That schedule 2 be the Second schedule to the Bill.

Stephanie Peacock (Labour, Barnsley East)

I will begin by addressing amendment 70, which seeks only to make a wording change so that the annex cannot be misinterpreted. Paragraph 10 of annex 2 outlines that further processing is to be treated as compatible with original purposes

“where the processing is carried out for the purposes of the assessment or collection of a tax or duty or an imposition of a similar nature.”

Which? has expressed concerns that that is much too vaguely worded, especially without a definition of “tax” or “duty” for the purposes of that paragraph, leaving the data open to commercial uses beyond the intention. Amendment 70 would close any potential loopholes by linking the condition to meeting a specific statutory obligation to co-operate with a public authority such as His Majesty’s Revenue and Customs.

Moving on, amendment 71 would correct a similar oversight in paragraph 1 of annex 2, which was identified by the AWO and Reset.tech. Paragraph 1 aims to ensure that processing is treated as compatible with the original purpose when it is necessary for making a disclosure of personal data to another controller that needs to process that data for a task in the public interest or in the exercise of official authority and that has requested that data. However, the Bill says that processing is to be treated as compatible with the original purpose where such a request simply “states” that the other person needs the personal data for the purposes of carrying out processing that is a matter of public task. At very least, those matters should surely be actually true, rather than just stated. Amendment 71 would close that loophole, so that the request must confirm a genuine need for data in completing a task in the public interest or exercising official authority, rather than simply being a statement of need.

Beyond those amendments, I wish only to reiterate the thoughts that I expressed during the debate on clause 6. Everything contained in the annex provides for further processing that is hidden from data subjects and may not be within their reasonable expectations. The reliance on the new annex should therefore be closely monitored to ensure that it is not being exploited, or we risk compromising the purpose limitation principle altogether. Does the Department plan to monitor how the new exemptions on the reuse of data are being relied on?

John Whittingdale (Conservative, Maldon)

As we have already discussed with clause 6, schedule 2 inserts a new annex into the UK GDPR. It sets out certain specific public interest circumstances in which personal data reuse is permitted regardless of the purpose for which the data was originally collected—for example, when the disclosure of personal data is necessary to safeguard vulnerable individuals. Taken together, clause 6 and schedule 2 will give controllers legal certainty on when they can reuse personal data and give individuals greater transparency.

Amendment 70 concerns taxation purposes, which are included in the list in schedule 2. I reassure the hon. Member for Barnsley East that the exemption for taxation is not new: it has been moved from schedule 2 to the Data Protection Act 2018. Indeed, the specific language in question goes back as far as 1998. We are not aware of any problems caused by that language.

The inclusion in the schedule of

“levied by a public authority”

would likely cause problems, since taxes and duties can be imposed only by law. Some must be assessed or charged by public authorities, but many become payable as a result of a person’s transactions or circumstances, without any intervention needed except to enforce collection if unpaid. They are not technically levied by a public authority. That would therefore lead to uncertainty and confusion about whether processing for certain important taxation purposes would be permitted under the provision.

I hope to reassure the hon. Lady by emphasising that taxation is not included in the annex 1 list of legitimate interests. That means that anyone seeking to use the legitimate interest lawful ground for that purpose would need to carry out a balancing-of-interests test, unless they were responding to a request for information from a public authority or other body with public tasks set out in law. For those reasons, I am afraid I am unable to accept the amendment, and I hope the hon. Lady will withdraw it.

Amendment 71 relates to the first paragraph in new annex 2 to the UK GDPR, as inserted by schedule 2. The purpose of that provision is to clarify that non-public bodies can disclose personal data to other bodies in certain situations to help those bodies to deliver public interest tasks in circumstances in which personal data might have been collected for a different purpose. For example, it might be necessary for a commercial organisation to disclose personal data to a regulator on an inquiry so that that body can carry out its public functions. The provision is tightly formulated and will permit disclosure from one body to another only if the requesting organisation states that it has a public interest task, that it has an appropriate legal basis for processing the data set out in law, and that the use of the data is necessary to safeguard important public policy or other objectives listed in article 23.

I recognise that the amendment is aimed at ensuring that the requesting organisation has a genuine basis for asking for the data, but suggest that changing one verb in the clause from “state” to “confirm” will not make a significant difference. The key point is that non-public bodies will not be expected to hand over personal data on entirely spurious grounds, because of the safeguards that I described. On that basis, I hope the hon. Lady will withdraw her amendment.

Stephanie Peacock (Labour, Barnsley East)

I am reassured by what the Minister said about amendment 70 and am happy not to move it, but I am afraid he has not addressed all my concerns in respect of amendment 71, so I will press it to a vote.

Clause 7 - Vexatious or excessive requests by data subjects

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 74, in clause 7, page 10, line 34, at end insert—

“6. Where a controller—

(a) charges a fee for dealing with a request, in accordance with paragraph 2(a), or

(b) refuses to act on a request, in accordance with paragraph 2(b)

the controller must issue a notice to the data subject explaining the reasons why they are refusing to act on the request, or charging a fee for dealing with the request, and informing the subject of their right to make a complaint to the Commissioner and of their ability to seek to enforce this right through a judicial remedy.”

This amendment would oblige controllers to issue a notice to the data subject explaining the reasons why they are not complying with a request, or charging for a request, their right to make a complaint to the ICO, and their ability to seek to enforce this right through a judicial remedy.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Amendment 73, in clause 7, page 12, line 20, at end insert—

“(1A) When considering the resources available to the recipient for the purposes of subsection (1)(c), no account may be taken of any lack of resources which is due to a failure by the recipient to appoint staff to relevant roles where the recipient has the resources to do so.”

This amendment would make it clear that, when taking into account “resources available to the controller” for deciding whether a subject access request is vexatious or excessive, this cannot include where the organisation has neglected to appoint staff, but has the finances or resources to do so.

Amendment 72, in clause 7, page 12, line 25, at end insert—

“(3) The Commissioner must prepare a code of practice under section 124A on the circumstances in which a request may be deemed vexatious or excessive.

(4) The code of practice prepared under subsection (3) must include examples of requests which may be deemed vexatious or excessive, and of requests which may be troublesome to deal with but which should not be deemed vexatious or excessive.”

This amendment would require the ICO to produce a code of practice on how the terms vexatious and excessive are to be applied, with examples of the kind of requests that may be troublesome to deal with, but are neither vexatious nor excessive.

Clause stand part.

Stephanie Peacock (Labour, Barnsley East)

I will speak first to clause 7 and amendment 72. Currently, everyone has the right to ask an organisation whether or not it is using or storing their personal data and to ask for copies of that data. That is called the right of access, and exercising that right is known as making a subject access request. Stakeholders from across the spectrum, including tech companies and civil society organisations, all recognise the value of SARs in helping individuals to understand how and why their data is being used and enabling them to hold controllers to account in processing their data lawfully.

The right of access is key to transparency and often underpins people’s ability to exercise their other rights as data subjects. After all, how is someone to know that their data is being used in an unlawful way, or in a way they would object to, if they are not able to ascertain whether their personal data is being held or processed by any particular organisation? For example, as the TUC highlighted in oral evidence to the Committee, the right of data subjects to make an information access request is a particularly important process for workers and their representatives, as it enables workers to gain access to personal data on them that is held by their employer and aids transparency over how algorithmic management systems operate.

It has pleased many across the board to see the Government roll back on their suggestion of introducing a nominal fee for subject access requests. However, the Bill introduces a new threshold for when controllers are able to charge a reasonable fee, or refuse a subject access request, moving from “manifestly unfounded or excessive” to “vexatious or excessive”. When deciding whether a request is vexatious or excessive, the Bill requires the controller to have regard to the circumstances of the subject access request. That includes, but is not limited to, the nature of the request; the relationship between subject and controller; the resources available to the controller; the extent to which the request repeats a previous request made by the subject; how long ago any previous request was made; and whether the request overlaps with other requests made by the data subject to the controller.

Stakeholders such as the TUC, the Public Law Project and Which? have expressed concerns that, as currently drafted, the terms that make up the new threshold are too subjective and could be open to abuse by controllers who may define any request they do not want to answer as vexatious or excessive. Currently, all there is in the Bill to guide controllers on how to apply the threshold is a non-exhaustive list of considerations; as I raised on Second Reading, if that list is non-exhaustive, what explicit protections will be in place to stop the application of terms such as “vexatious” and “excessive” being stretched and manipulated by controllers who simply do not want to fulfil the requests they do not like?

There are concerns that without further guidance even the considerations listed could be interpreted selfishly by controllers who lack a desire to complete a request. For example, given that many subject access requests come from applicants who are suspicious of how their data is being used, or have cause to believe their data is being misused, there is a high likelihood that the relationship any given applicant has with the controller has previously involved some level of friction and, perhaps, anger. The Bill prompts controllers to consider their relationship with a data subject when determining whether their request is vexatious; what is to stop a controller simply marking any data subject who has shared suspicions as “angry and vexatious”, thereby giving them grounds to refuse a genuine request?

Without clarity on how both the new threshold and the considerations apply, the ability of data subjects to raise a legal complaint about why their request was categorised as vexatious and excessive will be severely impeded. As AWO pointed out in oral evidence, that kind of legal dispute over a subject access request may be only the first stage of court proceedings for an individual, with a further legal case on the contents of the subject access request potentially coming afterwards. There simply should not be such a long timescale and set of legal proceedings in order for a person to exercise their fundamental data rights. Even the Information Commissioner himself, despite saying that he was clear on how the phrases “vexatious” and “excessive” should be applied, mentioned to the Committee that it was right to point out that such phrases were open to numerous interpretations.

The ICO is in a great position to provide clear statutory guidance on the application of the terms, with specific examples of when they do and do not apply, so that only truly bad-natured requests that are designed to exploit the system can be rejected or charged for. Such guidance would provide clarity on the ways in which a request might be considered troublesome but neither vexatious nor excessive. That way, controllers can be sure that they have dismissed, or charged for, only requests that genuinely pass the threshold, and data subjects can be assured that they will still be able to freely access information on how their data is being used, should they genuinely need or want it.

On amendment 73, one consideration that the Bill suggests controllers rely on when deciding whether a request is vexatious or excessive is the “resources available” to them. I assume that consideration is designed to operate in relation to the “excessive” threshold and the ability to charge. For example, when a subject access request would require work far beyond the means of the controller in question, the controller would be able to charge for providing the information needed, to ensure that they do not experience a genuine crisis of resources as a result of the request. However, the Bill does not explicitly express that, meaning the consideration in its vague form could be applied in circumstances beyond that design.

Indeed, if a controller neglected to appoint an appropriate number of staff to the responsibility of responding to subject access requests, despite having the finances and resources to do so, they could manipulate the consideration to say that any request they did not like was excessive, as a result of the limited resources available to respond. As is the case across many parts of the Bill, we cannot have legislation that simply assumes that people will act in good faith; we must instead have legislation that explicitly protects against bad-faith interpretations. The amendment would ensure just that by clarifying that a controller cannot claim that a request is excessive simply because they have neglected to arrange their resources in such a way that makes responding to the request possible.

On amendment 74, as is the case with the definition of personal data in clause 1, where the onus is placed on controllers to decide whether a living individual could reasonably be identified in any dataset, clause 7 again places the power—this time to decide whether a request is vexatious or excessive—in the hands of the controller.

As the ICO notes, transparency around the use of data is fundamentally linked to fairness, and is about being

“clear, open and honest with people from the start about who you are, and how and why you use their personal data”.

If a controller decides, then, that due to a request being vexatious or excessive they cannot provide transparency on how they are processing an individual’s data at that time, the very least they could do, in the interests of upholding fairness, is to provide transparency on their justification for classifying a request in that way. The amendment would allow for just that, by requiring controllers to issue a notice to the data subject explaining the grounds on which their request has been deemed vexatious or excessive and informing them of their rights to make a complaint or seek legal redress.

In oral evidence, the Public Law Project described the Bill’s lack of a requirement for controllers to notify subjects as to why their request has been rejected as a decision that creates an “information asymmetry”. That is particularly concerning given that it is often exactly that kind of information that is needed to access the other rights and safeguards outlined in the Bill and across GDPR. A commitment to transparency, as the amendment would ensure, would not only give data subjects clarity on why their request had been rejected or required payment, but provide accountability for controllers who rely on the clause, and thereby a deterrent from misusing it to reject any requests that they dislike. For controllers, the workload of issuing such notices should surely be less than that of processing a request that is genuinely vexatious and excessive, ensuring that the provision does not counterbalance the benefits brought to controllers through the clause.

John Whittingdale (Conservative, Maldon)

Let me start by recognising the importance of of subject access requests. I am aware that some have interpreted the change in the wording for grounds of refusal as a weakening. We do not believe that is the case.

On amendment 72, in our view the new “vexatious or excessive” language in the Bill gives greater clarity than there has previously been. The Government have set out parameters and examples in the Bill that outline how the term “vexatious” should be interpreted within a personal data protection context, to ensure that controllers understand.

The power to request codes of practice exists in the legislation and should be relied on to request any new codes. That power provides a route for the Secretary of State to require the Information Commissioner to prepare any code of practice that gives guidance on good practice in the processing of personal data. However, there will be situations where non-statutory guidance, which can be produced without being requested under regulations made by the Secretary of State, may be more appropriate than a statutory code of practice.

Examples of when a request may or may not be vexatious or excessive are best placed in non-statutory guidance produced by the ICO, as that will provide the flexibility to amend and change those examples whenever necessary. A wider code of practice on subject access requests may be a useful tool to create clarity. However, the Government want to work with the ICO to set out the scope of any code, in consultation with affected stakeholders, before using the power to request it.

Amendment 73 focuses on the new parameters for controllers to consider when determining whether a request is vexatious or excessive. The parameters include

“resources available to the controller”,

thereby emphasising the importance of proportionality when considering whether a request is vexatious or excessive.

Damian Collins (Conservative, Folkestone and Hythe)

Does my right hon. Friend agree that the provisions will be helpful and important for organisations that gather data about public persons, and particularly oligarchs, who are very adept at using subject access requests to bombard and overwhelm a journalist or a small investigatory team that is doing important work looking into their business activities?

John Whittingdale (Conservative, Maldon)

I completely agree with my hon. Friend. That is an issue that both he and I regard as very serious, and is perhaps another example of the kind of legal tactic that SLAPPs—strategic lawsuits against public participation—represent, whereby oligarchs can frustrate genuine journalism or investigation. He is absolutely right to emphasise that.

It is important to highlight that controllers can already consider resource when refusing or charging a reasonable fee for a request. The Government do not wish to change that situation. Current ICO guidance sets out that controllers can consider resources as a factor when determining if a request is excessive.

The new parameters are not intended to be reasons for refusal. The Government expect that the new parameters will be considered individually as well as in relation to one another, and a controller should consider which parameters may be relevant when deciding how to respond to a request. For example, when the resource impact of responding would be minimal even if a large amount of information was requested—such as for a large organisation—that should be taken into account. Additionally, the current rights of appeal allow a data subject to contest a refusal and ultimately raise a complaint with the ICO. Those rights will not change with regard to individual rights requests.

Amendment 74 proposes adding more detail on the obligations of a controller who refuses or charges for a request from a data subject. The current legislation sets out that any request from a data subject, including subject access requests, is to be responded to. The Government are retaining that approach and controllers will be expected to demonstrate why the provision applies each time it is relied on. The current ICO guidance sets out those obligations on controllers and the Government do not plan to suggest a move away from that approach.

The clause also states that it is for the controller to show that a request is vexatious or excessive in circumstances where that might be in doubt. Thus, the Government believe that the existing legislation provides the necessary protections. Following the passage of the Bill, the Government will work with the ICO to update guidance on subject access requests, which we believe plays an important role and is the best way to achieve the intended effect of the amendments. For those reasons, I will not accept this group of amendments; I hope that the hon. Member for Barnsley East will be willing to withdraw them.

I turn to clause 7 itself. As I said, the UK’s data protection framework sets out key data subject rights, including the right of access—the right for a person to obtain a copy of their personal data. A subject access request is used when an individual requests their personal data from an organisation. The Government absolutely recognise the importance of the right of access and do not want to restrict that right for reasonable requests.

The existing legislation enables organisations to refuse or charge a reasonable fee for a request when they deem it to be “manifestly unfounded or excessive”. Some organisations, however, struggle to rely on that in cases where it may be appropriate to do so, which as a consequence impacts their ability to respond to reasonable requests.

The clause changes the legislation to allow controllers to refuse or charge a reasonable fee for a request that is “vexatious or excessive”. The clause adds parameters for controllers to consider when relying on the “vexatious or excessive” exemption, such as the nature of the request and the relationship between the data subject and the controller. The clause also includes examples of the types of request that may be vexatious, such as those intended to cause distress, those not made in good faith or those that are an abuse of process.

We believe that the changes will give organisations much-needed clarity over when they can refuse or charge a reasonable fee for a request. That will ensure that controllers can focus on responding to reasonable requests, as well as other important data and organisational needs. I commend the clause to the Committee.

Stephanie Peacock (Labour, Barnsley East)

I appreciate that, as the Minister said, the Government do not intend the new terms to be grounds for refusal, but his remarks do not reassure me that that will not be the case. Furthermore, as I said on moving the amendment, stakeholders such as the TUC, Public Law and Which? have all expressed concern that, as drafted, those terms are too subjective. I will press the amendment to a vote.

Clause 8 - Time limits for responding to requests by data subjects

John Whittingdale (Conservative, Maldon)

Clause 8 makes changes to the time requirements to which an organisation must adhere when responding to a subject access request. Currently, organisations must respond to a subject access request within a set period; in the majority of cases, that is one month from receipt of the request. This clause enables organisations to “stop the clock” on the response time when an organisation is unable to respond without further information or clarification from an individual. For example, when the controller has information on multiple data subjects with the same name, they may require further information to help to differentiate the data subject’s information from others’. Organisations must have a legitimate reason to pause the response time; once confirmation is received from the data subject, the original time obligations resume.

The clause will also enable organisations to extend the period permitted for law enforcement and the intelligence services to respond to complex requests by two further months in certain circumstances. This replicates the existing provisions applicable to processing requests under the UK GDPR. Currently, all subject access requests received under the law enforcement and intelligence services regimes must be actioned within one month, irrespective of the complexity or number of requests received from an individual. Consequently, complex or confusing requests can disproportionately burden public bodies operating under those regimes, creating resource pressures.

Clause 8 will rectify the disparity currently existing between processing regimes and put law enforcement and intelligence services organisations on an equal footing to UK GDPR organisations. That will also provide a consistent framework for organisations operating under more than one regime at the same time. The clause also brings clarity on how best to respond to a confusing or complex request, ensuring that organisations do not lose time while seeking this clarification and can instead focus on responding to a request. On that basis, I urge that clause 8 stand part of the Bill.

Stephanie Peacock (Labour, Barnsley East)

I expressed my thoughts on the value and importance of subject access requests when we debated clause 7, and most of the same views remain pertinent here. Clause 8 allows for subject access requests to be extended where the nature of the request is complex, or due to volume. Some civil society groups, including Reset.tech, have expressed concern that that could mean that requests are unduly delayed for months, reflecting concern that they could be disregarded altogether, which was discussed when we debated clause 7. With that in mind, can the Minister tell us what protections will be in place to ensure that data controllers do not abuse the new ability to extend subject access requests, particularly by using the excuse that it is a large amount of data, in order to delay requests that they simply do not wish to respond to?

The clause provides some clarity on clause 7 by demonstrating that just because a request is lengthy or comes in combination with many others, it is not necessarily excessive as the clause gives controllers the option to extend the timeframe for dealing with requests that are high in volume. Of course, we do not want to unnecessarily delay requests, but allowing controllers to manage their load within a reasonable extended timeframe can act as a safeguard against their automatically relying on the “excessive” threshold. With that in mind, I am happy for the clause to stand part. However, I reiterate that my comments on clause 7 should be referred to.

John Whittingdale (Conservative, Maldon)

May I briefly respond to the hon. Lady’s comments? I assure her that controllers will not be able to stop the clock for all subject access requests—only for those where they reasonably require further information to be able to proceed with responding. Once that information has been received from a data subject, the clock resumes and the controller must proceed with responding to the request within the applicable time period, which is usually one month from when the controller receives the request information. A data subject who has provided the requested information would also be able to complain to a controller, and ultimately to the Information Commissioner’s Office, if they feel that their request has not been processed within the appropriate time. I hope the hon. Lady will be assured that there are safeguards to ensure that this power is not abused.

Clause 9 - Information to be provided to data subjects

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss clause 10 stand part.

John Whittingdale (Conservative, Maldon)

Clause 9 provides researchers, archivists and those processing personal data for statistical purposes with a new exemption from providing certain information to individuals when they are reusing datasets for a different purpose, which will help to ensure that important research can continue unimpeded. The new exemption will apply when the data was collected directly from the individual, and can be used only when providing the additional information would involve a disproportionate effort. There is already an exemption from this requirement where the personal data was collected from a different source.

The clause also adds a non-exhaustive list of examples of factors that may constitute a disproportionate effort. This list is added to both the new exemption in article 13 and the existing exemption found in article 14. Articles 13 and 14 of the UK GDPR set out the information that must be provided to data subjects at the point of data collection: article 13 covers circumstances where data is directly collected from data subjects, and article 14 covers circumstances where personal data is collected indirectly—for example, via another organisation. The information that controllers must provide to individuals includes details such as the identity and contact details of the controller, the purposes of the processing and the lawful basis for processing the data.

Given the long-term nature of research, it is not always possible to meaningfully recontact individuals. Therefore, applying a disproportionate effort exemption addresses the specific problem of researchers wishing to reuse data collected directly from an individual. The exemption will help ensure that important research can continue unimpeded. The clause also makes some minor changes to article 14. Those do not amend the scope of the exemption or affect its operation, but make it easier to understand.

I now turn to clause 10, which introduces an exemption relating to legally professionally privileged data into the law enforcement regime, mirroring the existing exemptions under the UK GDPR and the intelligence services regime. As a fundamental principle of our legal system, legal professional privilege protects confidential communications between professional legal advisers and their clients. The existing exemption in the UK GDPR restricts an individual’s right to access personal data that is being processed or held by an organisation, and to receive certain information about that processing.

However, in the absence of an explicit exemption, organisations processing data under the law enforcement regime, for a law enforcement purpose rather than under the UK GDPR, must rely on ad hoc restrictions in the Data Protection Act. Those require them to evaluate and justify its use on a case-by-case basis, even where legal professional privilege is clearly applicable. The new exemption will make it simpler for organisations that process data for a law enforcement purpose to exempt legally privileged information, avoiding the need to justify the use of alternative exemptions. It will also clarify when such information can be withheld from the individual.

Hon. Members might wonder why an exemption for legal professional privilege was not included under the law enforcement regime of the Data Protection Act in the first place. The reason is that we faithfully transposed the EU law enforcement directive, which did not contain such an exemption. Following our exit from the EU, we are taking this opportunity to align better the UK GDPR and the law enforcement regime, thereby simplifying the obligations for organisations and clarifying the rules for individuals.

Stephanie Peacock (Labour, Barnsley East)

The impact of clause 9 and the concerns around it should primarily be understood in relation to the definition contained in clause 2, so I refer hon. Members to my remarks in the debate on clause 2. I also refer them to my remarks on purpose limitation in clause 6. To reiterate both in combination, I should say that purpose limitation exists so that it is clear why personal data is being collected, and what the intention is behind its use. That means that people’s data should not largely be reused in ways not initially collected for, unless a new legal basis is obtained.

It is understandable that, where genuine scientific, historical and statistical research is occurring, and there is disproportionate effort to provide the information required to data subjects, there may be a need for exemption and to reuse data without informing the subject. However, that must be done only where strictly necessary. We must be clear that, unless there are proper boundaries to the definition of scientific data, this could be interpreted far too loosely.

I am concerned that, without amendment to clause 2, clause 9 could extend the problem of scientific research being used as a guise for using people’s personal data in malicious or pseudoscientific ways. Will the Minister tell us what protections will be in place to ensure that people’s data is not reused on scientific grounds for something that they would otherwise have objected to?

On clause 10, I will speak more broadly on law enforcement processing later in the Bill, but it is good to have clarity on the legal professional privilege exemptions. I have no further comments at this stage.

Carol Monaghan (Scottish National Party, Glasgow North West)

What we are basically doing is changing the rights of individuals, who would previously have known when their data was used for a purpose other than that for which it was collected. The terms

“scientific or historical research, the purposes of archiving in the public interest or statistical purposes”

are very vague, and, according to the Public Law Project, open to wide interpretation. Scientific research is defined as

“any research that can reasonably described as scientific, whether publicly or privately funded”.

I ask the Minister: what protections are in place to ensure that private companies are not given, through this clause, a carte blanche to use personal data for the purpose of developing new products, without the need to inform the data subject?

John Whittingdale (Conservative, Maldon)

These clauses relate to one of the fundamental purposes of the Bill, which is to facilitate genuine scientific research—obviously, that carries with it huge potential benefits in the areas of tackling disease or other scientific advances. We debated the definition of scientific research earlier in relation to clause 2. We believe that the definition is clear. In this particular case, the use of historical data can be very valuable. It is simply impractical for some organisations to reobtain consent when they may not even know where original data subjects are now located.

Philip Hollobone (Conservative, Kettering)

Order. I apologise to the Minister. He can resume his remarks at 2 o’clock, when we meet again in this room but, it being 11.25 am, the Committee is now adjourned.

Philip Hollobone (Conservative, Kettering)

I remind the Committee that with this we are discussing clause 10 stand part.

John Whittingdale (Conservative, Maldon)

When the Committee adjourned this morning, I was nearly at my conclusion; I was responding to points made by the hon. Member for Barnsley East and by the hon. Member for Glasgow North West, who has not yet rejoined us. I was saying that the exemption applies where the data originally collected is historic, where to re-contact to obtain consent would require a disproportionate effort, and where that data could be of real value in scientific research.[Official Report, 23 May 2023, Vol. 733, c. 1MC.] We think that there is a benefit to research and we are satisfied that the protection is there. There was some debate about the definition of scientific research, which we covered earlier; that is a point that is appealable to the Information Commissioner’s Office. On the basis of what I said earlier, and that assurance, I hope that the Committee will agree to the clause.

Clause 11 - Automated decision-making

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 78, in clause 11, page 18, line 13, after “subject” insert “or decision subject”.

This amendment, together with Amendments 79 to 101, would apply the rights given to data subjects by this clause to decision subjects (see NC12).

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Amendment 79, in clause 11, page 18, line 15, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 80, in clause 11, page 18, line 16, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 81, in clause 11, page 18, line 27, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 82, in clause 11, page 18, line 31, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 83, in clause 11, page 19, line 4, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 84, in clause 11, page 19, line 7, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 85, in clause 11, page 19, line 11, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 86, in clause 11, page 19, line 12, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 87, in clause 11, page 19, line 13, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 88, in clause 11, page 19, line 15, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 89, in clause 11, page 19, line 17, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 90, in clause 11, page 19, line 26, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 91, in clause 11, page 20, line 8, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 92, in clause 11, page 20, line 10, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 93, in clause 11, page 20, line 12, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 94, in clause 11, page 20, line 23, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 95, in clause 11, page 20, line 28, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 96, in clause 11, page 20, line 31, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 97, in clause 11, page 20, line 35, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 98, in clause 11, page 20, line 37, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 99, in clause 11, page 20, line 39, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 100, in clause 11, page 21, line 1, leave out “data”.

See explanatory statement to Amendment 78.

Amendment 101, in clause 11, page 21, line 31, after “subject” insert “or decision subject”.

See explanatory statement to Amendment 78.

Amendment 106, in clause 27, page 47, line 27, after “subjects”, insert “decision subjects,”.

This amendment would require the ICO to have regard to decision subjects (see NC12) as well as data subjects as part of its obligations.

Amendment 108, in clause 29, page 53, line 11, at end insert—

“(ba) decision subjects;”.

This amendment, together with Amendments 109 and 110, would require codes of conduct produced by the ICO to have regard to decision subjects (see NC12) as well as data subjects.

Amendment 109, in clause 29, page 53, line 13, at end insert—

“(d) persons who appear to the Commissioner to represent the interests of decision subjects.”.

See explanatory statement to Amendment 108.

Amendment 110, in clause 29, page 53, line 21, after “subjects”, insert “, decision subjects”.

See explanatory statement to Amendment 108.

Stephanie Peacock (Labour, Barnsley East)

I am pleased to speak to new clause 12, which would insert a definition of decision subjects, and to amendments 79 to 101, 106 and 108 to 110, which seek to insert rights and considerations for decision subjects that mirror those of data subjects at various points throughout the Bill.

Most of our data protection legislation operates under the assumption that the only people affected by data-based and automated decision making are data subjects. The vast majority of protections available for citizens are therefore tied to being a data subject: an identifiable living person whose data has been used or processed. However, as Dr Jeni Tennison described repeatedly in evidence to the Committee, that assumption is unfortunately flawed. Although data subjects form the majority of those affected by data-based decision making, they are not the only group of people impacted. It is becoming increasingly common across healthcare, employment, education and digital platforms for algorithms created and trained on one set of people to be used to reach conclusions about another, wider set of people. That means that an algorithm can make an automated decision that affects an individual to a legal or similarly significant degree without having used their personal data specifically.

For example, as Connected by Data points out, an automated decision could be made about a neighbourhood area, such as a decision on gritting or a police patrol route, based on personal data about some of the people who live in that neighbourhood, with the outcome impacting even those residents and visitors whose data was not directly used. For those who are affected by the automated decision but are not data subjects, there is currently no protection, recognition or method of redress.

The new clause would therefore define the decision subjects who are impacted by the likes of AI without their data having been used, in the hope that we can give them protections throughout the Bill that are equal to those for data subjects, where appropriate. That is especially important because special category data is subject to stricter safeguards for data subjects but not for decision subjects.

Connected by Data illustrates that point using the following example. Imagine a profiling company that uses special category data about the mental health of some volunteers to construct a model that predicts mental health conditions based on social media feeds, which would not be special category data. From that information, the company could give an estimate of how much time people are likely to take off work. A recruitment agency could then use that model to assess candidates and reject those who are likely to have extended absences. The model would never use any special category data about the candidates directly, but those candidates would have been subject to an automated decision that made assumptions about their own special category data, based on their social media feeds. In that scenario, by virtue of being a decision subject, the individual would not have the right to the same safeguards as those who were data subjects.

Furthermore, there might be scenarios in which someone was subject to an automated decision despite having consciously prevented their personal data from being shared. Connected by Data illustrates that point by suggesting that we consider a person who has set their preferences on their web browser so that it does not retain tracking cookies or share information such as their location when they visit an online service. If the online service has collected data about the purchasing patterns of similarly anonymous users and knows that such a customer is willing to pay more for the service, it may automatically provide a personalised price on that basis. Again, no personal data about the purchaser will have been used in determining the price that they are offered, but they will still be subject to an automated decision based on the data of other people like them.

What those scenarios illustrate is that it is whether an automated decision affects an individual in a legal or similarly significant way that should be central to their rights, rather than whether any personal data is held about them. If the Bill wants to unlock innovation around AI, automated decisions and the creative use of data, it is only fair that that be balanced by ensuring that all those affected by such uses are properly protected should they need to seek redress.

This group of amendments would help our legislative framework to address the impact of AI, rather than just its inputs. The various amendments to clause 11 would extend to decision subjects rights that mirror those given to data subjects regarding automated decision making, such as the right to be informed, the right to safeguards such as contesting a decision and the right to seek human intervention. Likewise, the amendments to clauses 27 and 29 would ensure that the ICO is obliged to have regard to decision subjects both generally and when producing codes of conduct.

Finally, to enact the safeguards to which decision subjects would hopefully be entitled via the amendments to clause 11, the amendment to clause 39 would allow decision subjects to make complaints to data controllers, mirroring the rights available to data subjects. Without defining decision subjects in law, that would not be possible, and members of the general public could be left without the rights that they deserve.

John Whittingdale (Conservative, Maldon)

I am very much aware of the concern about automated decision making. The Government share the wish of the hon. Member for Barnsley East for all those who may be affected to be given protection. Where I think we differ is that we do not recognise the distinction that she tries to make between data subjects and decision subjects, which forms the basis of her amendments.

The hon. Lady’s amendments would introduce to the UK GDPR a definition of the term “decision subject”, which would refer to an identifiable individual subject to data- based and automated decision making, to be distinguished from the existing term “data subject”. The intended effect is to extend the requirements associated with provisions related to decisions taken about an individual using personal data to those about whom decisions are taken, even though personal information about them is not held or used to take a decision. It would hence apply to the safeguards available to individuals where significant decisions are taken about them solely through automated means, as amendments 78 to 101 call for, and to the duties of the Information Commissioner to have due regard to decision subjects in addition to data subjects, as part of the obligations imposed under amendment 106.

I suggest to the hon. Lady, however, that the existing reference to data subjects already covers decision subjects, which are, if you like, a sub-group of data subjects. That is because even if an individual’s personal data is not used to inform the decision taken about them, the fact that they are identifiable through the personal data that is held makes them data subjects. The term “data subject” is broad and already captures the decision subjects described in the hon. Lady’s amendment, as the identification of a decision subject would make them a data subject.

I will not, at this point, go on to set out the Government’s wider approach to the use of artificial intelligence, because that is somewhat outside the scope of the Bill and has already been set out in the White Paper, which is currently under consultation. Nevertheless, it is within that framework that we need to address all these issues.

Damian Collins (Conservative, Folkestone and Hythe)

I have been closely following the speeches of the Minister and the hon. Member for Barnsley East. The closest example that I can think of for this scenario is the use of advertising tools such as lookalike audiences on Facebook and customer match on YouTube, where a company holding data about users looks to identify other customers who are the closest possible match. It does not hold any personal data about those people, but the platform forms the intermediary to connect them. Is the Minister saying that in that situation, as far as the Bill is concerned, someone contacted through a lookalike audience has the same rights as someone who is contacted directly by an advertiser that holds their data?

John Whittingdale (Conservative, Maldon)

Essentially, if anybody is affected by automated decision making on the basis of the characteristics of another person whose data is held—in other words, if the same data is used to take a decision that affects them, even if it does not personally apply to them—they are indeed within the broader definition of a data subject. With that reassurance, I hope that the hon. Member for Barnsley East will consider withdrawing her amendment.

Stephanie Peacock (Labour, Barnsley East)

I appreciate the Minister’s comments, but the point is that the data could be used—I gave the example that it might affect a group of residents who were not identifiable but were still subject to that data—so I am not quite sure that I agree with the Minister’s comparison. As the use of automated decision making evolves and expands, it is crucial that even if a person’s data is not being used directly, they are afforded protections and rights if they are subject to the outcome. I would like to press my amendment to a vote.

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 77, in clause 11, page 19, line 12, at end insert

“and about the safeguards available to the subject in accordance with this paragraph and any regulations under Article 22D(4);”.

This amendment would require controllers proactively to provide data subjects with information about their rights in relation to automated decision-making.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss amendment 120, in clause 11, page 19, line 12, at end insert—

“(aa) require the controller to inform the data subject when a decision described in paragraph 1 has been taken in relation to the data subject;”.

This amendment would require a data controller to inform a data subject whenever a significant decision about that subject based entirely or partly on personal data was taken based solely on automated processing.

Stephanie Peacock (Labour, Barnsley East)

New article 22C of the UK GDPR, inserted by clause 11, sets out the safeguards available to those who are subject to automated decision making. One such safeguard is that controllers must provide information to subjects relating to significant decisions taken through solely automated processing. That includes notifying subjects when a decision has been taken or informing them of the logic involved in producing that decision.

That provision is important. After all, how can the subject of an automated decision possibly exercise their other rights surrounding that decision if they do not even know that it has been taken on a solely automated basis? By the same logic, however, the average member of the general public is not likely to be aware of those other rights in the first place, including the rights to express their point of view with respect to automated decisions, to contest them and to seek human intervention.

Amendment 77 therefore recommends that as well as controllers being required to inform subjects about the decision, the same notice should be used as a vehicle to ensure that the subject is aware of the rights and safeguards in place to protect them and offer them redress. It would require no extra administrative effort on behalf of the controllers, because they will already be informing subjects. A proactive offer of redress may also encourage controllers to have extra regard to the way in which their automated systems are operating, in order to avoid unlawful activity that may cause them to receive a complaint or a request for human intervention.

An imbalance of power between those who conduct automated decisions and those who are subject to them already largely exists. Those who conduct decisions hold the collective power of the data, whereas each individual subject to a decision has only their own personal information; I will address that issue in greater detail in relation to other amendments, but there is no reason why that power imbalance should be exacerbated by hiding an individual’s own rights from them. If the intention of new article 22C is, as stated, to ensure that controllers are required to review and correct decisions that have produced a systematically wrongful outcome, there should be no issue with ensuring that the mechanism is properly communicated to the people it purports to serve. I am pleased to see that the hon. Member for Glasgow North West has tabled a similar amendment.

Carol Monaghan (Scottish National Party, Glasgow North West)

I rise to speak to my amendment 120. The explanatory notes to the Bill clarify that newly permitted automated decisions will not require the existing legal safeguard of notification, stating only:

“Where appropriate, this may include notifying data subjects after such a decision has been taken”.

Clause 11 would replace article 22 of the GDPR, which regulates AI decision making, with new articles 22A to 22D. According to Connected by Data, it is built on the faulty assumption that the people who are affected by automated decision making are data subjects—identifiable individuals within the data used to make the automated decision. However, now that AI decisions can be based on information about other people, it is becoming increasingly common for algorithms created through training on one set of people to be used to reach conclusions about another set.

A decision can be based on seemingly innocuous information such as someone’s postcode or whether they liked a particular tweet. Where such a decision has an impact on viewing recommendations for an online player, we would probably not be that concerned, but personal data is being used more and more to make decisions that affect whole groups of people rather than identified individuals. We need no reminding of the controversy that ensued when Ofqual used past exam results to grade students during the pandemic.

Another example might be an electricity company getting data from its customers about home energy consumption. Based on that data, it could automatically adjust the time of day at which it offered cheaper tariffs. Everyone who used the electricity company would be affected, whether data about their energy consumption patterns were used to make the decision or not. It is whether an automated decision has a legal or similarly significant effect on an individual that should be relevant to their rights around automated decision making.

Many of the rights and interests of decision subjects are protected through the Equality Act 2010, as the Committee heard in oral evidence last week. What is not covered by other legislation, however, is how data can be used in automated decisions and the rights of decision subjects to be informed about, control and seek redress around automated decisions with a significant effect on them. According to Big Brother Watch:

“This is an unacceptable dilution of a critical safeguard that will not only create uncertainty for organisations seeking to comply, but could lead to vastly expanded ADM operating with unprecedented opacity.”

Amendment 120 would require a data controller to inform a data subject whenever a significant decision about that subject was based solely on automated processing. I am pleased that the hon. Member for Barnsley East has tabled a similar amendment, which I support.

John Whittingdale (Conservative, Maldon)

The Government absolutely share hon. Members’ view of the importance of transparency. We agree that individuals who are subject to automated decision making should be made aware of it and should have information about the available safeguards. However, we feel that those requirements are already built into the Bill via article 22C, which will ensure that individuals are provided with information as soon as is practicable after such decisions have been taken. This will need to include relevant information that an individual would require to contest such decisions and seek human review of them.

The reforms that we propose take an outcome-focused approach to ensure that data subjects receive the right information at the right time. The Information Commissioner’s Office will play an important role in elaborating guidance on what that will entail in different circumstances.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

If I understood the Minister correctly, he said that decision subjects are a subset of data subjects. Can he envisage any circumstances in which a decision subject is not included within the group “data subjects”?

John Whittingdale (Conservative, Maldon)

It is certainly our view that anybody who is affected by an automated decision made on the basis of data held about individuals themselves becomes a data subject, so I think the answer to the honourable Lady’s question is no. As I said, the Information Commissioner’s Office will provide guidance in this area. If such a situation does arise, obviously it will need to be considered.The hon. Members for Barnsley East and for Glasgow North West asked about making information available to all those affected, and about safeguards, which we think are contained within the requirements under article 22C.

Damian Collins (Conservative, Folkestone and Hythe)

Further to the point that was made earlier, let us say that a Facebook user was targeted with an advert that was based on their protected characteristics data—data relevant to their sexual orientation, for example—but that user said that they had never shared that information with the platform. Would they have the right to make a complaint, either to the advertiser or to the platform, for inferring that data about them and making it available to a commercial organisation without their informed consent?

John Whittingdale (Conservative, Maldon)

They would obviously have that right, and indeed they would ultimately have the right to appeal to the Information Commissioner if they felt that they had been subjected unfairly to a decision where they had not been properly informed of the fact. On the basis of what I have said, I hope the hon. Member for Barnsley East might withdraw her amendment.

Stephanie Peacock (Labour, Barnsley East)

I appreciate the Minister’s comment, but the Government protection does not go as far as we would like. Our amendment speaks to the potential imbalance of power in the use of data and it would not require any extra administrative effort on behalf of controllers. For that reason, I will press it to a vote.

Philip Hollobone (Conservative, Kettering)

Ms Monaghan, do you wish to move amendment 120 formally?

Carol Monaghan (Scottish National Party, Glasgow North West)

I will not move it formally, Mr Hollobone, but I may bring it back on Report.

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 76, in clause 11, page 19, line 34, at end insert—

“5A. The Secretary of State may not make regulations under paragraph 5 unless—

(a) following consultation with such persons as the Secretary of State considers appropriate, the Secretary of State has published an assessment of the impact of the change to be made by the regulations on the rights and freedoms of data and decision subjects (with particular reference to children),

(b) the Commissioner has reviewed the Secretary of State’s statement and published a statement of the Commissioner’s views on whether the change should be made, with reasons, and

(c) the Secretary of State has considered whether to proceed with the change in the light of the Commissioner’s statement.”

This amendment would make the Secretary of State’s ability to amend the safeguards for automated decision-making set out in new Articles 22A to D subject to a requirement for consultation with interested parties and with the Information Commissioner, who would be required to publish their views on any proposed change.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss amendment 75, in clause 11, page 19, line 36, at end insert—

“7. The Commissioner must prepare a code of practice under section 124A of the Data Protection Act 2018 on the interpretation of references in this Regulation to “meaningful human involvement” and “similarly significant”.

8. The code of practice prepared under paragraph 7 must include examples of the kinds of processing which do, and which do not, fall within the definitions which use the terms referred to in that paragraph.”

This amendment would require the ICO to produce a code of practice on the interpretation of references to “meaningful human involvement” and “similarly significant” in connection with automated decision-making, with examples of the kinds of processing that would not count as falling within these definitions.

Stephanie Peacock (Labour, Barnsley East)

I will begin by discussing amendment 76 in the context of the general principles of this clause. The rise of AI and algorithmic decision making has happened at an unprecedented speed—so much so, in fact, that when the first version of this Bill was published, the likes of ChatGPT were not even launched yet. Now we live in a world where the majority of people across the country have been affected by or have used some form of AI-based or automated decision-making system.

When algorithms and automation work well, not only do they reduce administrative burdens, increase efficiency and free up capacity for further innovation and growth; they can also have remarkable outcomes. Indeed, PwC UK suggests that UK GDP could be up to 10.3% higher in 2030 as a result of artificial intelligence. AI is already being used to develop vaccines and medicines, for example, which are saving lives across the country and the entire world. Labour’s belief, outlined in our industrial strategy, is that the UK should be leading the world on efforts to ensure that transformative AI is aligned with the public interest in that way, and that regulations ensure we are well positioned to do that.

Despite the potential of AI to be harnessed for the public good, however, where things go wrong, the harms can be serious. The first way in which automation is prone to go wrong is by producing discriminatory outcomes. An algorithm, although intelligent in itself, is only ever as fair as the information and the people used to train it. That means that where biases exist in our world, they can become entrenched in our automated systems too. In in 2020, thousands of students in England and Wales received A-level exam results where, due to the pandemic, their grades were determined by an algorithm rather than by sitting an exam. At the hands of the automated system, almost 40% of students received grades lower than they had anticipated, with pupils from certain backgrounds and areas such as those that I represent disproportionately impacted by the lower marks. Within days of the results being published, there was widespread public outcry about the distress caused, as well as threats of mass protests and legal action. Similarly, Amazon was reported to have used an AI tool that systematically penalised women in job application processes. The tool had been trained on a decade’s worth of CVs, predominantly submitted by men. As such examples show, AI on its own can produce discriminatory outcomes. Our regulation must therefore recognise that and seek to protect against it.

The second major way in which automated decision making tends to go wrong, or can be abused, is when it makes legal or critical decisions about our lives based on mismanaged, abused or faulty systems. In the most extreme cases, automated systems can even contribute to deciding whether someone’s employment will be terminated, with grave consequences when that goes wrong. As mentioned in the oral evidence sessions, for example, last month the courts upheld the finding that three UK-based Uber drivers were robotically fired without redress, having been accused of fraudulent activity on the basis of an automated detection system. The court found that human involvement in the firing process was

“not much more than a purely symbolic act”,

and that implementing such a decision without a mechanism for appeal was unjust. Where livelihoods are at risk, data regulation must ensure that proper safeguards are in place to protect against mismanaged and faulty automated systems.

Serious harms sometimes occur under the existing system, but there are laws under the GDPR that try to protect us against discriminatory outcomes and mismanagement. Indeed, article 21 of GDPR gives a data subject the right to object at any time to the processing of their personal data, unless the controller can demonstrate “compelling legitimate grounds” for the processing to override the data subject’s rights. In conjunction, article 22 prevents data subjects from being subject to a decision based solely on automated processing that has significant effects, except in a few circumstances, including when it is based on explicit consent and does not rely on special categories of data. In all cases where automated decision making is allowed, suitable measures to safeguard the data subjects’ rights and freedoms must also be implemented.

Albeit from different perspectives, stakeholders from techUK to the TUC have emphasised the importance of those articles and of the core principles that they promote. For example, the articles place an element of control in the hands of those that an automated decision affects. They emphasise the need for appropriate safeguards, and they consider the need for a different approach where sensitive data is concerned.

Where the clause adjusts the threshold on automated decision making to unlock innovation, therefore—as the likes of the A-level algorithm scandal and the robo- firings show—it is vital that any changes to regulation maintain and in some cases strengthen the principles set out in articles 21 and 22 of the GDPR. However, as the likes of the Ada Lovelace Institute, Which? and the TUC warn, in reality the Bill does the opposite, watering down existing protections. The amendments I have tabled are designed to rectify that.

The clause not only amends the threshold on automated decision making so that it is permitted in a far wider range of circumstances, but it defines solely automated processing as a “significant decision” that involves “no meaningful human involvement” and attaches all available safeguards to that definition. Furthermore, crucially, the clause gives the Secretary of State the power to amend what counts within the definition. That means that in a world where more automated decision making will be allowed than ever before, safeguards—including the right to be notified of an automated decision, the ability to contest decisions and the right to seek human intervention—will be applicable only at the whim of however the Secretary of State decides to define key terms.

That may well be reasonable when a well informed Secretary of State acts in good faith, updating a definition to add more clarity or to take into account future developments; but the Bill offers no protections against a Minister acting maliciously or on bad advice, deliberately or inadvertently thinning the definition of these terms, with the effect of excluding many automated decisions from having to offer vital safeguards.

Definitions of terms such as “similarly significant” effects and “meaningful human involvement” have always been important to the application of law around automated decision making, and are core to interpreting article 22. That was demonstrated by the Uber case, where it was clearly judged that there was no meaningful intervention. Under the Bill, it is possible that the likes of those Uber drivers would have no legal grounds to complain about having been automatically fired with no recourse. That is simply not right. If technology is used to make genuinely significant or legal decisions about someone’s life or employment, that person must be offered proper methods of redress and recourse. The Secretary of State should absolutely not have the unilateral ability to legislate for definitions that could deny people those rights.

Amendment 76 will ensure that the true impact of any changes to definitions and safeguards are considered, and that the regulator is consulted before any adjustments are made. The ability to future-proof definitions through changes will remain when it is truly needed, but necessary extra safeguards will be put in place, so that assurances that the power will not be abused are based in law, not in trust alone. Any changes deemed to be in the general better interests of the public will be able to go ahead, but confidence will be built in for everyone—from consumers to workers—that the Secretary of State cannot define them out of having the rights they deserve.

Moving on to amendment 75, given the importance of the definitions of “similarly significant” and “meaningful human involvement” to the application of safeguards in any given scenario, it is crucial that as well as preventing the Secretary of State from unnecessarily changing the definitions, we ensure that both controllers and the general public are clear on what falls within the definitions at any given point. The likes of the Public Law Project, the TUC, Which? and the Ada Lovelace Institute have all pointed that out, partly out of a need for general clarity, but also out of a fear that controllers may be able to use loose definitions to define their decision-making activities outside the boundaries of the new articles 22A to 22D, thus preventing the necessary safeguards from applying.

The ICO already offers some brief guidance on the difference between a partly automated and solely automated decision, stating that

“A process won’t be considered solely automated if someone weighs up and interprets the result of an automated decision before applying it to the individual.”

The ICO also gives some examples of a significant effect and points toward WP29 guidance on the subject, too. However, the Government make no effort in the Bill or the new rules around automated decision making to indicate that any such clarity or any examples will be provided. That means that, even before the Secretary of State has the power to change the definitions, there may still be confusion on how they apply. Such confusion is unacceptable; it will at best clog up the regulators’ time, and at worst cause people to be subject, without proper methods of redress, to automated decisions that have a genuine impact on their lives.

The amendment would build clarity into the Bill by guaranteeing statutory guidance from the Information Commissioner on how the terms are to be applied in practice. In particular, it will clarify the kinds of processing that do not count as falling within these definitions. For example, the guidance could juxtapose examples of meaningful human involvement and rubber stamping, so that controllers would have no excuse to define token gestures as a meaningful intervention. For anyone who wishes to comply with the spirit of the clause, no extra steps will be required; the provision will simply provide greater information to controllers on how to interpret the law, and protect those who are subject to automated decisions.

John Whittingdale (Conservative, Maldon)

The hon. Lady began her remarks on the broader question of the ambition to ensure that the UK benefits to the maximum extent from the use of artificial intelligence. We absolutely share that ambition, but also agree that it needs to be regulated. That is why we have published the AI regulation White Paper, which suggests that it is most appropriate that each individual regulator should develop its own rules on how that should apply. I think in the case that she was quoting of those who had lost their jobs, maybe through an automated process, the appropriate regulator—in that case, presumably, the special employment tribunal —would need to develop its own mechanism for adjudicating decisions.

I will concentrate on the amendment. On amendment 76, we feel that clause 44 already provides for an overarching requirement on the Secretary of State to consult the Information Commissioner and other persons that she or he considers appropriate before making regulations under UK GDPR, including the measures in article 22. When the new clause 44 powers are used in reference to article 22 provisions, they will be subject to the affirmative procedure in Parliament. I know that the hon. Lady is not wholly persuaded of the merits of using the affirmative procedure, but it does mean that parliamentary approval will be required. Given the level of that scrutiny, we do not think it is necessary for the Secretary of State to have to publish an assessment, as the hon. Lady would require through her amendment.

On amendment 75, as we have already debated in relation to previous amendments, there are situations where non-statutory guidance, which can be produced without being requested under regulations made by the Secretary of State, may be more appropriate than a statutory code of practice. We believe that examples of the kinds of processing that do and do not fall within the definitions of the terms “meaningful human involvement” and “similarly significant” are best placed in non-statutory guidance produced by the ICO, as this will give the flexibility to amend and change the examples where necessary. What constitutes a significant decision or meaningful human involvement is often highly context-specific, and the current wording allows for some inter-pretability to enable the appropriate application of this provision in different contexts, rather than introducing an absolute definition that risks excluding decisions that ought to fall within this provision and vice versa. For that reason, we are not minded to accept the amendments.

Stephanie Peacock (Labour, Barnsley East)

I appreciate the Minister’s remarks about consultation and consulting relevant experts. He is right to observe that I am not a big fan of the affirmative procedure as a method of parliamentary scrutiny but I appreciate that it is included in this Bill as part of that.

I think the problem is that we fundamentally disagree on the power to change these definitions being concentrated in the hands of the Secretary of State. It is one thing to future-proof the Bill but another to allow the Secretary of State alone to amend things as fundamental as the safeguards offered here. I would therefore like to proceed to a vote.

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 121, in clause 11, page 19, line 36, at end insert—

“7. When exercising the power to make regulations under this Article, the Secretary of State must have regard to the following statement of principles:

Digital information principles at work

1. People should have access to a fair, inclusive and trustworthy digital environment at work.

2. Algorithmic systems should be designed and used to achieve better outcomes: to make work better, not worse, and not for surveillance. Workers and their representatives should be involved in this process.

3. People should be protected from unsafe, unaccountable and ineffective algorithmic systems at work. Impacts on individuals and groups must be assessed in advance and monitored, with reasonable and proportionate steps taken.

4. Algorithmic systems should not harm workers’ mental or physical health, or integrity.

5. Workers and their representatives should always know when an algorithmic system is being used, how and why it is being used, and what impacts it may have on them or their work.

6. Workers and their representatives should be involved in meaningful consultation before and during use of an algorithmic system that may significantly impact work or people.

7. Workers should have control over their own data and digital information collected about them at work.

8. Workers and their representatives should always have an opportunity for human contact, review and redress when an algorithmic system is used at work where it may significantly impact work or people. This includes a right to a written explanation when a decision is made.

9. Workers and their representatives should be able to use their data and digital technologies for contact and association to improve work quality and conditions.

10. Workers should be supported to build the information, literacy and skills needed to fulfil their capabilities through work transitions.”

This amendment would insert into new Article 22D of the UK GDPR a requirement for the Secretary of State to have regard to the statement of digital information principles at work when making regulations about automated decision-making.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss amendment 122, in clause 11, page 22, line 2, at end insert—

“(7) When exercising the power to make regulations under this section, the Secretary of State must have regard to the following statement of principles:

Digital information principles at work

1. People should have access to a fair, inclusive and trustworthy digital environment at work.

2. Algorithmic systems should be designed and used to achieve better outcomes: to make work better, not worse, and not for surveillance. Workers and their representatives should be involved in this process.

3. People should be protected from unsafe, unaccountable and ineffective algorithmic systems at work. Impacts on individuals and groups must be assessed in advance and monitored, with reasonable and proportionate steps taken.

4. Algorithmic systems should not harm workers’ mental or physical health, or integrity.

5. Workers and their representatives should always know when an algorithmic system is being used, how and why it is being used, and what impacts it may have on them or their work.

6. Workers and their representatives should be involved in meaningful consultation before and during use of an algorithmic system that may significantly impact work or people.

7. Workers should have control over their own data and digital information collected about them at work.

8. Workers and their representatives should always have an opportunity for human contact, review and redress when an algorithmic system is used at work where it may significantly impact work or people. This includes a right to a written explanation when a decision is made.

9. Workers and their representatives should be able to use their data and digital technologies for contact and association to improve work quality and conditions.

10. Workers should be supported to build the information, literacy and skills needed to fulfil their capabilities through work transitions.”

This amendment would insert into new section 50D of the DPA2018 a requirement for the Secretary of State to have regard to the statement of digital information principles at work when making regulations about automated decision-making.

Stephanie Peacock (Labour, Barnsley East)

Amendments 121 and 122 would ensure that close attention is paid to the specific and unique circumstances of workers and the workplace when regulations are made under the clause. Indeed, as has already been referenced, the workplace has dramatically evolved in the last decade with the introduction and growth of technology. Whether it be Royal Mail using the postal digital assistant service to calculate the length of time posties spend walking, on doorsteps and standing still, or Amazon collecting data from handheld scanners to calculate how much time workers are spending “off task”, the digital monitoring of workers and subsequent use of that data by managers to assess performance, allocate work hours and decide on levels of pay, is on the rise.

Of course it is absolutely right that workplaces embrace technology. As Andrew Pakes of Prospect said to this Committee, our economy and the jobs that people do each day can be made better and more productive through the good deployment of technology—but the key is in the phrase “good deployment”, and in order to have deployment that works for the greater good, the rights and protections in place at work must keep pace with the changing nature of the workplace and these technological advancements. As Labour outlined in our industrial strategy, we want to do just that: harness data for the public good and ensure that data and the innovation it brings with it benefit our wider society, not just large corporations. Further, as is written in our “New Deal for Working People”, Labour wants to introduce new rights to protect workers in the modern age—for example by legislating to make proposals to introduce surveillance technologies subject to consultation and agreement of trade unions, or elected staff representatives where there is no trade union. After all, we can only truly unlock the benefits of data and become a world leader in this space if there is genuine public trust in these technologies. Good regulation breeds that trust.

Currently, however, and particularly in the Bill, the kinds of measures that would allow for good deployment of technology in the workplace—technology that operates in the greater interest including that of workers—are missing from the Government’s plans. Instead, as the TUC note, we are overseeing a growing power imbalance between worker and employer. This imbalance not only exists by the nature of the relationship, but it is now being exacerbated by the increasing level of knowledge and control that employers have over personal data as the workplace becomes digitised, compared with workers, who have very little power over, expertise on or access to such data.

Some impressive projects have sought to address that imbalance. For example, in 2020 Prospect worked with a coalition of unions, tech specialists and researchers to launch a beta version of WeClock, a free mobile app that helps workers to track and manage their own data such as that related to their location, their commute and when they are doing work on their phone. Those data profiles could then potentially be used by trade union campaigners to improve rights for workers. However, it should not just be down to individual projects to ensure that there is an equal balance between worker and employer. The Bill is a huge missed opportunity to write into law this balance and the principles that we should consider with regard to worker’s rights in the modern age.

The amendment, which has been prepared in partnership with the Institute for the Future of Work, is designed to right that wrong and ensure that where regulations are made about automated decision making, the full impact on workers is considered and strong principles about worker involvement are upheld. It will mean that the Secretary of State has to consider that people have an inclusive digital environment at work, that they should be protected from harms by algorithmic systems, and that they should be meaningfully consulted before and after the use of such tools. Further, under this amendment, consideration will be given to supporting workers in building the information, literacy and skills needed to understand these transitions in the workplace, thereby addressing some of the imbalances in knowledge and understanding.

I will end with an example of the real-life consequences of employment and data laws lagging behind technology. As was revealed by a report by the Worker Info Exchange just last month, 11 Just Eat couriers in the UK were recently robotically fired after receiving allegations of fraudulent activity identified by an automated system. According to the report, these workers were falsely accused of receiving “undeserved financial gain” relating to nominal waiting time payments at restaurants. Just Eat argued that the workers left the restaurant while continuing to claim waiting fees. However, GPS evidence showed that workers had stayed in the vicinity of the restaurant, usually in the car park. In each case, the worker collected the food and completed the delivery, and the average value of the alleged undeserved payments justifying the robo-firings was just £1.44. Cases such as those, in which real livelihoods are impacted and rights infringed for the sake of profit margins, can and must be avoided.

The amendment would take the first steps in ensuring that regulations around automated decision making centre the unique experience of workers. It also highlights the Bill’s failure to move towards a legislative framework in which a distinct focus is placed on harnessing data for the public good, which is something that Labour would have placed at the heart of a data Bill such as this one.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

I rise to speak briefly in support of the amendment tabled by my hon. Friend the Member for Barnsley East and to emphasise the points that she made regarding the importance of putting forward a vision for the protection of workers as the nature of working environments change. That is part of what the amendment’s “digital information principles at work” seek to do. I declare an interest: I worked for Ofcom as head of technology before coming to this House. That work highlighted to me the importance of forward-looking regulation. As my hon. Friend set out, artificial intelligence is not forward looking; it is here with us and in the workplace.

Many technological changes have made work more accessible to more people: covid showed us that we could work from many different locations—indeed, Parliament successfully worked from many locations across the country. Technological changes have also made work more productive, and companies and public sector organisations are taking advantage of that increase in productivity. But some technologies have accelerated bad employment practices, driven down standards and damaged the wellbeing of workers—for example, workplace surveillance technologies such as GPS tracking, webcam monitoring and click monitoring, which encroach on workers’ privacy and autonomy. My constituents often say that they feel that technology is something that is done to them, rather than something that has their consent and empowers them.

It is important, as I am sure that the Minister will agree, that working people welcome and embrace the opportunities that technology can bring, both for them and for the companies and organisations they work for, but that cannot happen without trust in those technologies. For that, there need to be appropriate regulation and safeguards. Surely the Minister must therefore agree that it is time to bring forward a suite of appropriate principles that follows amendment’s principle of

“a fair, inclusive and trustworthy digital environment at work.”

I hope that he cannot disagree with any of that.

If we are to get ourselves out of the economic stagnation and lack of growth of the last 10 or 13 years, we need to build on new technologies and productivity, but we cannot do that without the support and trust of people in the workforce. People must feel that their rights—new rights that reflect the new environment in the workplace—are safeguarded. I hope that the Minister will agree that the principles set out in the amendment are essential to building that trust, and to ensuring a working environment in which workers feel protected and able to benefit from advances in technology.

John Whittingdale (Conservative, Maldon)

I am grateful to the hon. Members for Barnsley East and for Newcastle upon Tyne Central for setting out the thinking behind the amendment. We share the view, as the hon. Member for Newcastle upon Tyne Central has just said, that those who are subject to artificial intelligence and automated decision making need to have trust in the process, and there need to be principles underlying the way in which those decisions are taken. In each case, the contributions go above and beyond the provision in the Bill. On what we are proposing regarding data protection, the changes proposed in clause 11 will reinforce and provide further clarification, as I have said, in respect of the important safeguards for automated decision making, which may be used in some workplace technologies. These safeguards ensure that individuals are made aware of and can seek human intervention on significant decisions that are taken about them through solely automated means. The reforms to article 22 would make clear employer obligations and employee rights in such scenarios, as we debated in the earlier amendments.

On the wider question, we absolutely recognise that the kind of deployment of technology in the workplace shown in the examples that have already been given needs to be considered across a wide range of different regulatory frameworks in terms of not just data protection law, but human rights law, legal frameworks regarding health and safety and, of course, employment law.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

I thank the Minister for his comments. I note that he castigates us, albeit gently, for tabling an amendment to this data protection Bill, while he argues that there is a need for wider legislation to enshrine the rights he apparently agrees with. When and where will that legislation come forward? Does he recognise that we waited a long time and listened to similar arguments about addressing online harms, but have ended up in a situation where—in 2023—we still do not have legislation on online harms? My question is: if not now, when?

John Whittingdale (Conservative, Maldon)

As I was Chair of the Culture, Media and Sport Committee in 2008 when we published a report calling for legislation on online safety, I recognise the hon. Lady’s point that these things take a long time—indeed, far too long—to come about. She calls for action now on governance and regulation of the use of artificial intelligence. She will know that last month the Government published the AI regulation White Paper, which set out the proposals for a proportionate outcomes-focused approach with a set of principles that she would recognise and welcome. They include fairness, transparency and explainability, and we feel that this has the potential to address the risks of possible bias and discrimination that concern us all. As she knows, the White Paper is currently out to consultation, and I hope that she and others will take advantage of that to respond. They will have until 21 June to do so.

I assure the hon. Lady and the hon. Member for Barnsley East that the Government are keenly aware of the need to move swiftly, but we want to do so in consultation with all those affected. The Bill looks at one relatively narrow aspect of the use of AI, but certainly the Government’s general approach is one that we are developing at pace, and we will obviously respond once the consultation has been completed.

Stephanie Peacock (Labour, Barnsley East)

The power imbalance between employer and worker has no doubt grown wider as technology has developed. Our amendment speaks to the real-life consequences of that, and to what happens when employment and data law lags behind technology. For the reasons that have been outlined by my hon. Friend the Member for Newcastle upon Tyne Central and myself, I would like to continue with my amendment.

John Whittingdale (Conservative, Maldon)

We have, I think, covered a lot of ground already in the debates on the amendments. To recap, clause 11 reforms the rules relating to automated decision making in article 22 of the UK GDP and relevant sections of the Data Protection Act 2018. It expands the lawful grounds on which solely automated decision making that produces a legal or similarly significant effect on an individual may be carried out.

Currently, article 22 of the UK GDPR restricts such activity to a narrow set of circumstances. By expanding the available lawful grounds and ensuring we are clear about the required safeguards, these reforms will boost confidence that the responsible use of this technology is lawful, and will reduce barriers to responsible data use.

The clause makes it clear that solely automated decisions are those that do not involve any meaningful human involvement. It ensures that there are appropriate constraints on the use of sensitive personal data for solely automated decisions, and that such activities are carried out in a fair and transparent manner, providing individuals with key safeguards.

The clause provides three powers to the Secretary of State. The first enables the Secretary of State to describe cases where there is or is not meaningful human involvement in the taking of a decision. The second enables the Secretary of State to further describe what is and is not to be taken as having a significant effect on an individual. The third enables the introduction of further safeguards, and allows those already set out in the reforms to be amended but not removed.

The reformed section 50 of the Data Protection Act mirrors the changes in subsection (1) for solely automated decision making by law enforcement agencies for a law enforcement purpose, with a few differences. First, in contrast to article 22, the rules on automated decision making apply only where such decisions have an adverse legal or similarly significant effect on the individual. Secondly, the processing of sensitive personal data cannot be carried out for the purposes of entering into a contract with the data subject for law enforcement purposes.

The final difference relates to the safeguards for processing. This clause replicates the UK GDPR safeguards for law enforcement processing but also allows a controller to apply an exemption to them where it is necessary for a particular reason, such as to avoid obstructing an inquiry. This exemption is available only where the decision taken by automated means is reconsidered by a human as soon as reasonably practicable.

The subsections amending relevant sections of the Data Protection Act 2018, which apply to processing by or on behalf of the intelligence services, clarify that requirements apply to decisions that are entirely automated, rather than solely automated. They also define what constitutes a decision based on this processing. I have explained the provisions of the clause, and hope the Committee will feel able to accept it.

Stephanie Peacock (Labour, Barnsley East)

I talked at length about my views about the changes to automated decision making when we debated amendments 77, 120, 76, 75, 121 and 122. I have nothing further to add at this stage, but those concerns still stand. As such, I cannot support this clause.

Schedule 3 - Automated decision-making: consequential amendments

John Whittingdale (Conservative, Maldon)

I beg to move amendment 17, in schedule 3, page 140, line 9, leave out sub-paragraph (3) and insert—

“(3) In paragraph 2—

(a) for “under Articles 15 to 22”, in the first place, substitute “arising under or by virtue of Articles 15 to 22D”, and

(b) for “his or her rights under Articles 15 to 22” substitute “those rights”.”.

This amendment adjusts consequential amendments of Article 12(2) of the UK GDPR for consistency with other amendments of the UK GDPR consequential on the insertion of new Articles 22A to 22D.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Government amendments 18 to 23.

That schedule 3 be the Third schedule to the Bill.

John Whittingdale (Conservative, Maldon)

I can be reasonably brief on these amendments. Schedule 3 sets out the consequential changes needed to reflect references to the rules on automated decision making in reformed article 22 and section 50 and other provisions in the UK GDPR and the Data Protection Act 2018. Schedule 3 also sets out that section 14 of the Data Protection Act is repealed. Instead, reformed article 22 sets out the safeguards that must apply, regardless of the lawful ground on which such activity is carried out.

Government amendments 17 to 23 are minor technical amendments ensuring that references elsewhere in the UK GDPR and the Data Protection Act to the provisions on automated decision making are comprehensively updated to reflect the reforms related to such activity in this Bill. That means that references to article 22 UK GDPR are updated to the reformed article 22A to 22D provisions, and references to sections 49 and 50 in the Data Protection Act are updated to the appropriate new sections 50A to 50D.

Stephanie Peacock (Labour, Barnsley East)

I thank the Minister for outlining these technical changes. I have nothing further to add on these consequential amendments beyond what has already been discussed on clause 11 and the rules around automated decision making. Consistency across the statute book is important, but all the concerns I raised when discussing the substance of those changes remain.

Clause 12 - General obligations

John Whittingdale (Conservative, Maldon)

One of the main criticisms that the Government have received of the current legislative framework is that it sets out a number of prescriptive requirements that organisations must satisfy to demonstrate compliance. They include appointing independent data protection officers, keeping records of processing, appointing UK representatives, carrying out impact assessments and consulting the ICO about intended processing activities in specified circumstances.

Those rules can sometimes generate a significant and disproportionate administrative burden, particularly for small and medium-sized enterprises and for some third sector organisations. The current framework provides some limited exemptions for small businesses and organisations that are carrying out low-risk processing activities, but they are not always as clear or as useful as they should be.

We are therefore taking the opportunity to improve chapter 4 of the UK GDPR, and the equivalent provisions in part 3 of the Data Protection Act, in respect of law enforcement processing. Those provisions deal with the policies and procedures that organisations and law enforcement organisations must put in place to monitor and ensure compliance. Clauses 12 to 20 will give organisations greater flexibility to implement data protection management programmes that work for their organisations, while maintaining high standards of data protection for individuals.

Clause 12 is technical in nature. It will improve the terminology in the relevant articles of the UK GDPR by replacing the requirement to implement

“appropriate technical and organisational measures”.

In its place, data protection risks must be managed with

“appropriate measures, including technical and organisational measures,”.

That will give organisations greater flexibility to implement any measures that they consider appropriate to help them manage risks. A similar clarification is made to equivalent parts of the Data Protection Act.

Clause 13 will remove article 27 of the UK GDPR, ending the requirement for overseas controllers or processors to appoint a representative in the UK where they offer goods or services to, or monitor the behaviour of, UK citizens—

Philip Hollobone (Conservative, Kettering)

Order. I am sorry, Minister, but we are talking about clause 12 at the moment; we will come on to clause 13 later. Have you concluded your remarks on clause 12?

John Whittingdale (Conservative, Maldon)

I think I have covered the points that I would like to make on clause 12.

Stephanie Peacock (Labour, Barnsley East)

Clause 12 is a set of largely technical amendments to terminology that I hope will provide clarity to data controllers and processors. I have no further comments to make at this stage.

Clause 13 - Removal of requirement for representatives for controllers etc outside the UK

John Whittingdale (Conservative, Maldon)

As I was saying, clause 13 will remove article 27 of the UK GDPR, ending the requirement for overseas controllers or processors to appoint a representative in the UK where they offer goods or services to, or monitor the behaviour of, UK citizens. By no longer mandating organisations to appoint a representative, we will be allowing organisations to decide for themselves the best way to comply with the requirements for effective communication. That may still include the appointment of a UK-based representative. The removal of this requirement is therefore in line with the Bill’s wider strategic aim of removing unnecessary prescriptive regulation.

Stephanie Peacock (Labour, Barnsley East)

The rules set out in the UK GDPR apply to all those who are active in the UK market, regardless of whether their organisation is based or located in the UK. Article 27 of the UK GDPR currently requires controllers and processors based outside the UK to designate a UK-based representative, unless they process only occasionally without special categories of data, providing an element of proportionality, or are a public authority or body. The idea is that the representative will act on behalf of the controller or processor regarding their UK GDPR compliance and will deal with the ICO and data subjects in that respect, acting as a primary contact for all things data within the country.

The removal of the requirement for a UK representative was not included in the Government’s consultation, “Data: a new direction”, nor was it even mentioned in their response. As a result, stakeholders have not been given an opportunity to put forward their opinions on this change. I wish to represent some of those opinions so that they are on the record for the Minister and his Department to consider.

Concern among the likes of Lexology, DataRep and Which? relates primarily to the fact that the current requirements for UK-based representatives ensure that UK data subjects can conveniently reach the companies that process their personal data, so that they can exercise their rights under the GDPR. Overseas data handlers may have a different first language, operate in a different time zone or have local methods of contact that are not easily accessible from the UK. Having a UK-based point of contact therefore ensures that data subjects do not struggle to apply the rights to which they are entitled because of the inevitable differences that occur across international borders.

As Lexology has pointed out, the Government’s own impact assessment says:

“There is limited information and data on the benefits of having an Article 27 representative as it is a relatively new and untested requirement and also one that applies exclusively to businesses and organisations outside of the UK which makes gathering evidence very challenging.”

By their own admission, then, the Government seem to recognise the challenges in gathering information from organisations outside the UK. If the Government find it difficult to get the information that they require, surely average citizens and data subjects may also face difficulties.

Not only is having a point of contact a direct benefit for data subjects, but a good UK representative indirectly helps data subjects by facilitating a culture of good data protection practice in the organisation that they represent. For example, they may be able to translate complex legal concepts into practical business terms or train fellow employees in a general understanding of the UK GDPR. Such functions may make it less likely that a data subject will need to exercise their rights in the first place.

As well as things being harder for data subjects in the ways I have outlined, stakeholders are not clear about the benefits of removing representatives for UK businesses. For example, the Government impact assessment estimates that the change could save a large organisation £50,000 per year, but stakeholders have said that that figure is an overestimation. Even if the figure is accurate, the saving will apply only to organisations outside the UK and will be made through a loss of employment for those who are actually based in the UK and performing the job.

The question therefore remains: if the clause is not in the interests of data subjects, of UK businesses or of UK-based employees who act as representatives, how will this country actually benefit from the change? I am keen to hear from the Minister on that point.

John Whittingdale (Conservative, Maldon)

If there are concerns that were not fed in during the consultation period, obviously we will consider them. However, it remains the case that even without the article 27 representative requirement, controllers will have to maintain contact with UK citizens and co-operate with the ICO under other provisions of the UK GDPR. For example, overseas controllers and processors must still co-operate with the ICO as a result of the specific requirements to do so under article 31 of the UK GDPR. To answer the hon. Lady’s question about where the benefit lies, the clause is part of a streamlining process to remove what we see as unnecessary administrative requirements and bureaucracy.

Clause 14 - Senior responsible individual

John Whittingdale (Conservative, Maldon)

As I mentioned in our debate on clause 12, clauses 12 to 18 will give organisations greater flexibility about the policies, procedures or programmes that they put in place to ensure compliance with the legislation. As we have discussed, a criticism of the current legal framework is that many of the existing requirements are so prescriptive that they impose unnecessary burdens on businesses. Many organisations could manage data protection risks effectively without appointing an independent data protection officer, but they are forced to do so by the prescriptive rules that we inherited from the European Union.

Clause 14 will therefore abolish existing requirements on data protection officers and replace them with new requirements for organisations to designate a senior responsible individual where appropriate. That individual would be part of the organisation’s senior management and would be responsible for overseeing data protection matters within the organisation. In particular, the individual would be responsible for monitoring compliance with the legislation, ensuring the implementation of appropriate risk management procedures, responding to data protection breaches and co-operating with the information commissioner, or for ensuring that those tasks are performed by another suitably skilled person where appropriate. Senior responsible individuals may perform the tasks specified in clause 14 themselves, delegate them to suitably skilled members of staff or, if it is right for the company and its clients, seek advice from independent data protection experts.

We recognise that some people have raised concerns that giving organisations more flexibility in how they monitor and ensure compliance with the legislation could reduce standards of protection for individuals. We are confident that that will not be the effect of the clause. On the contrary, the clause provides an opportunity to elevate discussions about data protection risks to senior levels within organisations by requiring a senior responsible individual to take ownership of data protection risks and embed a culture of data protection. On that basis, I commend the clause to the Committee.

Stephanie Peacock (Labour, Barnsley East)

In a number of places in the Bill, the Government have focused on trying to ensure a more proportionate approach to data protection. That often takes the form of reducing regulatory requirements on controllers and processors where low-risk processing, which presents less of a threat of harm to data subjects, is taking place. Clause 14 is one place in which Ministers have applied that principle, replacing data protection officers with a requirement to appoint a senior responsible individual, but only where high-risk processing is being carried out.

Such a proportionate approach makes sense in theory. Where the stakes are lower, less formalised oversight of GDPR compliance will be required, which will be particularly helpful in small business settings where margins and resources are tight. Where the stakes are higher, however, a senior responsible individual will have a similar duty to that of a data protection officer, but with the added benefit of being part of the senior leadership team, ensuring that data protection is considered at the highest level of organisations conducting high-risk processing.

However, the Government have admitted that the majority of respondents to their consultation disagreed with the proposal to remove the requirement to designate a data protection officer. In particular, respondents were concerned that removing DPOs would result in

“a loss of data protection expertise”

and

“a potential fall in trust and reassurance to data subjects.”

Indeed, data protection officers perform a vital role in upholding GDPR, taking on responsibility for informing people of their obligations; monitoring compliance, including raising awareness and training staff; providing advice, where requested, on data protection impact assessments; co-operating with the regulator; and acting as a contact point. That provides not only guaranteed expertise to organisations, but reassurance to data subjects that they will have someone to approach should they feel the need to exercise any of their rights under the GDPR.

The contradiction between the theory of the benefits of proportionality and the reality of the concerns expressed by respondents to the consultation emphasises a point that the Government have repeatedly forgotten throughout the Bill: although removing truly unnecessary burdens can sometimes be positive, organisations often want clear regulation more than they want less regulation. They believe in the principles of the GDPR, understand the value of rights to data subjects and often over-comply with regulation out of fear of breaking the rules.

In this context, it makes sense that organisations recognise the value of having a data protection officer. They actually want in-house expertise on data—someone they can ask questions and someone they can rely on to ensure their compliance. Indeed, according to the DPO Centre, in September 2022, the UK data protection index panel of 523 DPOs unequivocally disagreed with the idea that the changes made by the clause would be in the best interests of data subjects. Furthermore, when asked whether the proposal to remove the requirement for a DPO and replace it with a requirement for a senior responsible individual would simplify the management of privacy in their organisation, 42% of DPOs surveyed gave the lowest score of 1.

Did the Department consider offering clarification, support and guidance to DPOs, rather than just removing them? Has it attempted to assess the impact of their removal on data subjects? In practice, it is likely that many data protection officers will be rebranded as senior responsible individuals. However, many will be relieved of their duties, particularly since the requirement to be part of the organisation’s senior management team could be problematic for external DPO appointments and those in more junior positions. Has the Department assessed how many data protection officers may lose their job as a result of these changes? Is the number expected to be substantial? Will there be any protections to support those people in transitioning to skilled employment surrounding data protection and to prevent an overall reduction of data protection expertise in organisations?

John Whittingdale (Conservative, Maldon)

The clause does not in any way represent a lessening of the requirement on organisations to comply with data protection law. It simply introduces a degree of flexibility. An organisation could not get rid of data protection officers without ensuring that processing activities likely to pose high risks to individuals are still managed properly. The senior responsible individual will be required to ensure that that is the case.

At the moment, even small firms whose core activities do not involve the processing of sensitive data must have a data protection officer. We feel that that is an unnecessary burden on those small firms, and that allowing them to designate an individual will give them more flexibility without reducing the overall level of data protection that they require.

Clause 15 - Duty to keep records

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss clause 16 stand part.

John Whittingdale (Conservative, Maldon)

Clauses 15 and 16 will improve the record-keeping requirements under article 30 of the UK GDPR and the logging requirements under part 3 of the Data Protection Act, which is concerned with records kept for law enforcement purposes. Article 30 of the UK GDPR requires most organisations to keep records of their processing activities and includes a list of requirements that should be included in the record. Those requirements can add to the paperwork that organisations have to keep to demonstrate compliance. Although there is an exemption from those requirements in the UK GDPR for some small organisations, it has a limited impact because it applies only where their processing of personal data is “occasional”.

Clause 15 will replace the record-keeping requirements under article 30. It will make it easier for data controllers to understand exactly what needs to be included in the record. Most importantly, organisations of any size will no longer have to keep records of processing, unless their activities are

“likely to result in a high risk”

to individuals. That should help small businesses in particular, which have found the current small business exemption difficult to understand and apply in practice.

Clause 16 will make an important change to the logging requirements for law enforcement purposes in part 3 of the Data Protection Act. It will remove the ineffective requirement to record a justification when an officer consults or discloses personal data for the purposes of an investigation. The logging requirements are unique to the law enforcement regime and aim to assist in monitoring and auditing data use. Recording a justification for accessing data was intended to help protect against unlawful access, but the reality is that someone is unlikely to record an honest reason if their access is unlawful. That undermines the purpose of this requirement, because appropriate and inappropriate uses would both produce essentially indistinguishable data.

As officers often need to access large amounts of data quickly, especially in time-critical scenarios, the clause will facilitate the police’s ability to investigate and prevent crime more swiftly. We estimate that the change could save approximately 1.5 million policing hours. Other elements of the logs, such as the date and time of the consultation or disclosure and the identity of the person accessing them, are likely to be far more effective in protecting personal data against misuse; those elements remain in place. On that basis, I commend the clauses to the Committee.

Stephanie Peacock (Labour, Barnsley East)

Record keeping is a valuable part of data processing. It requires controllers, and to a lesser extent processors, to stay on top of all the processing that they are conducting by ensuring that they record the purposes for processing, the time limits within which they envisage holding data and the categories of recipients to whom the data has been or will be disclosed.

Many respondents to the Government’s consultation “Data: a new direction” said that they did not think the current requirements were burdensome. In fact, they said that the records allow them easily to understand the personal data that they are processing and how sensitive it is. It is likely that that was helped by the fact that the requirements were proportionate, meaning that organisations that employed under 250 people and were not conducting high-risk processing were exempt from the obligations.

It is therefore pleasing to see the Government rolling back on the idea of removing record-keeping requirements entirely, as was suggested in their consultation. As was noted, the majority of respondents disagreed with that proposal, and it is right that it has been changed. However, some respondents indicated a preference for more flexibility in the record-keeping regime, which is what I understand the clause is trying to achieve. Replacing the current requirements with a requirement to keep an appropriate record of processing, tied to high-risk activities, will give controllers the flexibility that they require.

As with many areas of the Bill, it is important that we be clear on the definition of “appropriate” so that it cannot be used by those who simply do not want to keep records. I therefore ask the Minister whether further guidance will be available to assist controllers in deciding what counts as appropriate.

I also wish to highlight the point that although in isolation the clause does not seem to change requirements much, other than by adding an element of proportionality, it cannot be viewed in isolation. In combination with other provisions, such as the reduced requirements on DPIAs and the higher threshold for subject access requests, it seems that there will be less records overall on which a data subject might be able to rely to understand how their personal information is being used or to prove how it has been used when they seek redress. With that in mind, I ask the Minister whether the Government have assessed the potential impact of the combination of the Bill’s clauses on the ability of data subjects to exercise their rights. Do the Government have any plans to work with the commissioner to monitor any such impacts on data subjects after the Bill is passed?

I turn to clause 16. Section 62 of the Data Protection Act 2018 requires competent authorities to keep logs that show who has accessed certain datasets, and at what time. It also requires that that access be justified: the reason for consulting the data must be given. Justification logs exist to assist in disciplinary proceedings, for example if there is reason to believe that a dataset has been improperly accessed or that personal data has been disclosed in an unauthorised way. However, as Aimee Reed, director of data at the Met police and chair of the national police data board, told the Committee:

“It is a big requirement across all 43 forces, largely because…we are operating on various aged systems. Many of the technology systems…do not have the capacity to log section 62 requirements, so police officers are having to record extra justification in spreadsheets alongside the searches”.––[Official Report, Data Protection and Digital Information (No. 2) Public Bill Committee, 10 May 2023; c. 56, Q118.]

That creates what she described as a “considerable burden”.

Understandably, therefore, the Bill removes the justification requirement. There are some—the Public Law Project, for example—who have expressed concern that this change would pose a threat to individual rights by allowing the police to provide a retrospective justification for accessing records. However, as the explanatory notes indicate, it is highly unlikely that in an investigation concerning inappropriate use, a justification recorded by the individual under investigation for improper access or unauthorised access could be relied on anyway. Clause 16 would therefore not stop anyone from being investigated for improper access; it would simply reduce the burden of recording a self-identified justification that could hardly be relied on anyway. I welcome the intent of the clause and the positive impact that it could have on our law enforcement processing.

John Whittingdale (Conservative, Maldon)

The intention behind clause 15 is to reduce the burden on organisations by tying the record-keeping requirements to high-risk processing activities. If there is uncertainty about the nature of the risk, organisations will be able to refer to ICO guidance. The ICO has already published examples on its website of processing that is likely to be high-risk for the purposes of completing impact assessments; clause 17 will require it to apply the guidance to the new record-keeping requirements as well. It will continue to provide guidance on the matter, and we are happy to work with it on that.

With respect to clause 16, I am most grateful for the Opposition’s welcome recognition of the benefits for crime prevention and law enforcement.

Clause 17 - Assessment of high risk processing

Stephanie Peacock (Labour, Barnsley East)

I beg to move amendment 102, in clause 17, page 32, line 12, leave out from “with” to the end of line 28 on page 33 and insert

“subsection (2)

(2) In Article 57(1) (Information Commissioner’s tasks), for paragraph (k) substitute—

‘(k) produce and publish a document containing examples of types of processing which the Commissioner considers are likely to result in a high risk to the rights and freedoms of individuals (for the purposes of Articles 27A, 30A and 35);’.”

This amendment would remove the provisions of clause 17 which replace the existing data protection impact assessment requirements with new requirements about “high risk processing”, leaving only the requirement for the ICO to produce a document containing examples of types of processing likely to result in a high risk to the rights and freedoms of individuals.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Amendment 103, in clause 17, page 33, line 9, at end insert—

“(4A) After Article 35(11) insert—

‘(11A) Any public authority, government department, or contractor of a government department which routinely uses public data in the discharge of its functions must publish any assessments of high risk processing conducted pursuant to this Article. Any assessments published under this Article must be redacted where necessary for the purposes of—

(a) removing sensitive details,

(b) protecting public interests, or

(c) ensuring the security of data processing operations.’”

This amendment inserts a new requirement into Article 35 of UKGDPR, for any public authority which uses public data to publish any assessment of high risk processing they conduct under Article 35.

Clause stand part.

Clause 18 stand part.

Stephanie Peacock (Labour, Barnsley East)

As was the intention, the Bill loosens restrictions on processing personal data in many areas: it adds a new lawful basis and creates new exceptions to purpose limitation, removes blocks to automated decision-making and allows for much thinner record keeping. Each change in isolation may make only a relatively small adjustment to the regime. Collectively, however, they result in a large-scale shift towards controllers being able to conduct more processing, with less transparency and communication, and having fewer records to keep, all of which reduces opportunities for accountability.

As mentioned, loosening restrictions is an entirely deliberate consequence of a Bill that seeks to unlock innovation through data—an aim that Members across the House, including me, are strongly behind, given the power of data to influence growth for the public good. However, given the cumulative impact of this deregulation, where increasingly opaque processing is likely to result in a large risk to people’s rights, a processor might at the very least record how they will ensure that any high-risk activities that they undertake do not lead to unlawful or discriminatory outcomes for the general public. That is exactly what the current system of DPIAs, as outlined in article 35 of GDPR, allows for. These assessments, which require processors to measure their activities against the risk to the rights and freedoms of data subjects, are not just a tick-box exercise, unnecessary paperwork or an administrative burden; they are an essential tool for ensuring that organisations do not deploy, and individuals are not subjected to, systems that may lead to a fundamental breach of their rights.

Assessments of that kind are not a concept unique to data processing. The Government routinely publish impact assessments on the legislation that they want to introduce; any researcher or scientist is likely to conduct an assessment of the safety and morality of their methodology; and a teacher will routinely and formally measure the risks involved when taking pupils on a school trip. Where activities pose a high risk to others, it is simply common practice to keep a record of where the risks lie, and to make plans to ensure that they are mitigated where possible.

In the case of data, not only are DPIAs an important mechanism to ensure that risks are managed, but they act as a key tool for data subjects. That is first because the process of conducting a DPIA encourages processors to consult data subjects, either directly or through a representative, on how the type of processing might impact them. Secondly, where things go wrong for data subjects, DPIAs act as a legal record of the processing, its purpose and the risks involved. Indeed, the Public Law Project, a registered charity that employs a specialist lawyer to conduct research, provide training and take on legal casework, identified DPIAs as a key tool in litigating against the unlawful use of data processing. They show a public law record of the type of processing that has been conducted, and its impact.

The TUC and the Institute for the Future of Work echo that, citing DPIAs as a crucial process and consultation tool for workers and trade unions in relation to the use of technology at work. The clause, however, seeks to water down DPIAs, which will become “assessments of high-risk processing”. That guts both the fundamental benefit of risk management that they offer in a data protection system that is about to become increasingly transparent, and the extra benefits that they give to data subjects.

Instead of requiring a systematic description of the processing operations and purposes, under the new assessments the controller would be required only to summarise the purpose of the processing. Furthermore, instead of conducting a proportionality assessment, controllers will be required only to consider whether the processing is necessary for the stated purpose. The Public Law Project describes the proportionality assessment as a crucial legal test that weighs up whether an infringement of human rights, including the right not to be discriminated against, is justified in relation to the processing being conducted.

When it comes to consultation, where previously it was encouraged for controllers to seek the views of those likely to be impacted by the processing, that requirement to seek those views will now be entirely omitted, despite the important benefit to data subjects, workers and communities. The new tests therefore simply do not carry the same weight or benefit as DPIAs, which in truth could themselves be strengthened. It is simply not appropriate to remove the need to properly assess the risk of processing, while simultaneously removing restrictions that help to mitigate those risks. For that reason, the clause must be opposed; we would keep only the requirement for the ICO to produce that much-needed guidance on what constitutes high-risk processing.

Moving on to amendment 103, given the inherent importance of conducting risk assessments for high-risk processing, and their potential for use by data subjects when things go wrong, it seems only right that transparency be built into the system where it comes to Government use of public data. The amendment would do just that, and only that. It would not adjust any of the requirements on Government Departments or public authorities to complete high-risk assessments; it would simply require an assessment to be published in any case where one is completed. Indeed, the ICO guidance on DPIAs says:

“Although publishing a DPIA is not a requirement of UK GDPR, you should actively consider the benefits of publication. As well as demonstrating compliance, publication can help engender trust and confidence. We would therefore recommend that you publish your DPIAs, where possible, removing sensitive details if necessary.”

However, very few organisations choose to publish their assessments. This is a chance for the Government to lead by example, and foster an environment of trust and confidence in data protection

Alongside the amendment I tabled on compulsory reporting on the use of algorithms, this amendment is designed to afford the general public honesty and openness on how their data is used, especially where the process has been identified as having a high risk of causing harm. Again, a published impact assessment would provide citizens with an official record of high-risk uses of their data, should they need that when seeking redress. However, a published impact assessment would also encourage responsible use of data, so that redress does not need to be sought in the first place.

The Government need not worry about the consequences of the amendment if they already meet the requirement to conduct the correct impact assessments and process them in such a way that the benefits are not heavily outweighed by a risk to data rights. If rules are being followed, the amendment will only provide proof of that. However, if anyone using public data in a public authority’s name did so without completing the appropriate assessments, or processed that data in a reckless or malicious way, there would be proof of that. Where there is transparency, there is accountability, and where the Government are involved, accountability is always crucial in a democracy. The amendment would ensure that accountability shined through in data protection law.

Finally, I turn to clause 18. The majority of respondents to the “Data: a new direction” consultation agreed that organisations are likely to approach the ICO voluntarily before commencing high-risk processing activities if that is taken into account as a mitigating factor in any future investigation or enforcement action. The loosening of requirements in the clause is therefore not a major concern. However, when that is combined with the watering down of the impact assessments, there remains an overarching concern about the oversight of high-risk processing. I refer to my remarks on clause 17, in which I set out the broader problems that the Bill poses to protection against harms from high-risk processing.

John Whittingdale (Conservative, Maldon)

As we have discussed, one of the principal objectives of this part of the Bill is to remove some of the prescriptive unnecessary requirements on organisations to do things to demonstrate compliance. Clauses 17 and 18 reduce the unnecessary burdens placed on organisations by articles 35 and 36 of the UK GDPR in respect of data protection impact assessments and prior consultation with the ICO respectively.

Clause 17 will replace the EU-derived notion of a data protection impact assessment with more streamline requirements for organisations to document how they intend to assess and mitigate risks associated with high-risk processing operations. The changes will apply to both the impact assessment provisions under the UK GDPR and the section of the Data Protection Act 2018 that deals with impact assessments for processing relating to law enforcement. Amendment 102 would reverse those changes to maintain the current data protection impact assessment requirements, but we feel that this would miss an important opportunity for reform.

There are significant differences between the new provisions in the Bill and current provisions on data protection impact assessments. First, the new provisions are less prescriptive about the precise processing activities for which a risk assessment will be required. We think organisations are best placed to judge whether a particular activity poses a high risk to individuals in the context of the situation, taking account of any relevant guidance from the regulator.

Secondly, we have also removed the mandatory requirement to consult individuals about the intended processing activity as part of a risk-assessment process, as that imposes unnecessary burdens. There are already requirements in the legislation to ensure that any new processing is fair, transparent and designed with the data protection principles in mind. It should be open to businesses to consult their clients about intended new processing operations if they wish, but that should not be dictated to them by the data protection legislation.

Clause 18 will make optional the previous requirement for data controllers to consult the commissioner when a risk assessment indicates a potential high risk to individuals. The Information Commissioner will be able to consider any voluntary actions that organisations have taken to consult the ICO as a factor when imposing administrative fines on a data controller. Currently, compliance with the prior consultation requirement is low, likely due to a lack of clarity in the legislation and a reluctance for organisations to engage directly with the regulator on potential high-risk processing. The clause will encourage a more proactive, open and collaborative dialogue between the ICO and organisations, so that they can work together to better mitigate the risks.

The Opposition’s amendment 103 would mandate the publication of risk assessments by all public sector bodies. That requirement would, in our view, place a disproportionate burden on public authorities of all sizes. It would apply not just to Departments but to smaller public authorities such as schools, hospitals, independent pharmacies and so on. The amendment acknowledges that each public authority would have to spend time redacting sensitive details from risk assessments prior to publication. As those assessments can already be requested by the ICO as part of its investigations, or by members of the public via freedom of information requests, we do not think it is necessary to impose that significant new burden on all public bodies. I therefore invite the hon. Member for Barnsley East to withdraw her two amendments, and I commend clauses 17 and 18 to the Committee.

Stephanie Peacock (Labour, Barnsley East)

I am happy not to press amendment 103 to a vote, but on amendment 102, I simply do not think it is appropriate to remove the need to properly assess the risk of processing while removing the restrictions that help to mitigate it. For those reasons, I will press it to a vote.

Clause 19 - Law enforcement processing and codes of conduct

John Whittingdale (Conservative, Maldon)

I beg to move amendment 1, in clause 19, page 35, leave out lines 23 to 25 and insert—

“(5) The Commissioner must encourage expert public bodies to submit codes of conduct described in subsection (1) to the Commissioner in draft.”.

This amendment replaces a duty on expert public bodies to submit draft codes of conduct relating to compliance with Part 3 of the Data Protection Act 2018 to the Information Commissioner with a duty on the Information Commissioner to encourage such bodies to do so.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Government amendments 2 to 4.

Clause stand part.

John Whittingdale (Conservative, Maldon)

Clause 19 introduces an ability for public bodies with the appropriate knowledge and expertise to produce codes of conduct applicable to the law enforcement regime. The clause mirrors the equivalent provision in the UK GDPR.

As with regular guidance, these codes of conduct will be drafted by law enforcement data protection experts and tailored to the specific data protection issues that affect law enforcement agencies, to help improve compliance with the legislation and encourage best practice. However, they are intended to carry more weight, because they will additionally have the formal approval of the Information Commissioner.

When a code of conduct is produced, there is a requirement to submit a draft of it to the Information Commissioner. While that is good practice, we think it is unnecessary to mandate that. Government amendment 1 replaces that requirement with a duty on the commissioner to instead encourage public bodies to do that. Government amendments 2 and 3 are consequential to that.

Where a public body has submitted a code of conduct to the commissioner for review, Government amendment 4 removes the requirement for the commissioner to review any subsequent amendments made by the public body until the initial draft has been considered. This change will promote transparency, greater clarity and confidence in how police process personal data under the law enforcement regime. Codes of conduct are not a new concept. The clause mirrors what is already available under the UK GDPR.

Stephanie Peacock (Labour, Barnsley East)

The Bill fails to fully recognise that the burdens that organisations face in complying with data protection legislation are not always best dealt with by simply removing the protections in place. In many cases, clarification and proper guidance can be just as fruitful in allowing data protection to work more seamlessly. Clauses such as clause 19, which seeks to create an environment in which best practice is shared on how to comply with data protection laws and deal with key data protection challenges, are therefore very welcome. It is absolutely right that we should capitalise on pockets of experience and expertise, especially in the public sector, where resources have often been stretched, particularly over the last 13 years. We should ensure that learnings are shared with those who are less familiar with how to resolve challenges around data.

It is also pleasing to see that codes that give sector-specific guidance will be approved by the commissioner before being published. That will ensure absolute coherence between guidance and the enforcement of data protection law more widely. I look forward to seeing what positive impact the codes of conduct will have on how personal data is handled by public bodies, to the benefit of the general public as well as the public bodies themselves; the burden on them will likely be lifted as a result of the clarity provided by the guidance.

John Whittingdale (Conservative, Maldon)

I welcome the Opposition’s support.

Clause 20 - Obligations of controllers and processors: consequential amendments

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to consider the following:

Government amendments 42 and 43.

That schedule 4 be the Fourth schedule to the Bill.

Government amendments 40 and 41.

John Whittingdale (Conservative, Maldon)

As clauses 12 to 18 remove terms such as data protection officers and data protection impact assessments from the legislation, some consequential changes are required to other parts of the legislation where the same terms are used. Clause 20 therefore introduces schedule 4, which sets out the details of the consequential changes required. An example of that is in article 13 of the UK GDPR, which currently requires controllers to provide individuals with the contact details of the data protection officer, where appropriate. In future, that provision will refer to the organisation’s senior responsible individual instead. Removal of the term data protection officer from the UK GDPR will have knock-on effects in other areas, including in relation to the types of people from whom the ICO receives requests and queries.

Government amendment 40 will provide that the commissioner may refuse to deal with vexatious or excessive requests made by any person, not just those made by data protection officers or data subjects. Government amendments 41 to 43 make further minor and technical changes to the provisions in schedule 4 to reflect the changes we have made to the terminology.

Stephanie Peacock (Labour, Barnsley East)

I have no comments to add on the consequential amendments in clause 20 beyond what has been discussed regarding the obligations on controllers and processors. With regard to Government amendments 40 to 44 and schedule 4, I will address changes to the ICO’s powers to refuse requests when we come to them further on in the Bill.

Schedule 4 - Obligations of controllers and processors: consequential amendments

Clause 21 - Transfers of personal data to third countries and international organisations

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Amendment 104, in schedule 5, page 144, line 28, at end insert—

‘4 All provisions in this Chapter must be applied in such a way as to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.’

This amendment would reinsert into the new Article on general principles for international data transfers the principle that all provisions of this Chapter of the UK GDPR should be applied in such a way as to ensure that the level of protection of natural persons guaranteed by the Regulation is not undermined.

Government amendments 24 to 26.

That schedule 5 be the Fifth schedule to the Bill.

Government amendments 27 to 29.

That schedule 6 be the Sixth schedule to the Bill.

That schedule 7 be the Seventh schedule to the Bill.

John Whittingdale (Conservative, Maldon)

Clause 21 refers to schedules 5 to 7, which introduce reforms to the provisions of the UK GDPR and the Data Protection Act 2018, which regulate the international transfers of personal data. Schedule 5 introduces changes to the UK’s general processing regime for transferring personal data internationally. In order to provide for a clearer structure than the current UK regime, schedule 5 will consolidate the existing provisions on international transfers. It replaces article 44 with article 44A, setting out in clearer terms the general principles for international transfers and listing the same bases under which personal data can be lawfully transferred overseas.

Schedule 5 also introduces article 45A, which sets out the Secretary of State’s power to make regulations approving transfers of personal data to a third country or international organisation. The Government now use the term “data bridges” to refer to those regulations, which allow the free flow of personal data. Article 45A outlines that the Secretary of State may make such regulations only if they are satisfied that the data protection test is met. In addition to the requirement that the Secretary of State be satisfied that the data protection test is met, article 45A specifies that the Secretary of State may have regard to other matters that he or she considers relevant when making those regulations, including the desirability of facilitating transfers of personal data to and from the UK.

Article 45B sets out the data protection test that the Secretary of State must consider is met in order to establish new data bridges. In order for a country or international organisation to meet the data protection test, the standard of protection for personal data in that country or international organisation must be “not materially lower” than the standard of protection under the UK’s data protection framework. The reformed law recognises that the Secretary of State must exercise their judgment when making a determination. Their assessment will be made with respect to the outcomes of data protection in a third country, instead of being prescriptive about the form and means of protection, recognising that no two data protection regimes are identical.

The article also sets out a more concise and streamlined list of key factors that the Secretary of State must consider as part of their assessment. However, article 45B(2) is a non-exhaustive list, and the Secretary of State may also need to consider other matters in order to determine whether the required standard of protection exists.

Article 45C amends the system for formally reviewing data bridge regulations, removing the requirement for them to be reviewed periodically. The Secretary of State will still be subject to the requirement to monitor developments in other countries on an ongoing basis. Schedule 5 also amends article 46, which sets out the rules for controllers and processors to make international transfers of personal data using alternative transfer mechanisms.

The new article 46 requirements are tailored for data exporters to transfer defined types of data in specific circumstances. They stipulate that the data exporter, acting reasonably and proportionately, must consider that the standard of protection provided for the data subject would be “not materially lower” than the standard of protection in the UK in the specific circumstances of the transfer. The new requirements accommodate disparities between data exporters, where what is right for a multinational organisation transferring lots of sensitive data may not be right for a small charity making ad hoc transfers.

Schedule 5 also introduces article 47A, which provides a power for the Secretary of State to create or recognise new UK and non-UK alternative transfer mechanisms. The new power will help to future-proof the UK’s international transfers regime by allowing the Government to shape international developments and react quickly to global trends, helping UK businesses connect and trade with their partners around the world.

Schedule 6 amends relevant parts of the Data Protection Act 2018 governing international transfers of personal data, which are governed by the law enforcement processing regime. Paragraph 4 omits the section governing transfers based on adequacy assessments and inserts a new provision to mirror the approach being adopted in schedule 5. As with the changes described in schedule 5, schedule 6 amends the power in new section 74AA for the Secretary of State to make regulations approving transfers of personal data to another jurisdiction. It replaces the current list of considerations with a broader, non-exhaustive one. The schedule also clarifies the test found in new section 74AB that must be applied when regulations are made, giving greater clarity to the UK regulations decision-making process.

Paragraph 6 amends the wording that provides for transfers outside the UK subject to “appropriate safeguards”. To improve the effectiveness of transferring data internationally, the amended wording introduces the principles of reasonableness and proportionality to manage what can be reasonably expected of an organisation transferring the data. Further amendments clarify the rules for law enforcement transfers in the absence of regulations or appropriate safeguards. That route will still be permitted only when there are special circumstances that warrant the transfer, such as to prevent an immediate, serious threat to public security.

Schedule 6 further amends the section of the Data Protection Act that currently obliges UK data controllers to ensure that international partners seek consent from the UK in all cases before they share personal data with another country or international organisation. The reform will allow a UK controller to permit international parties to transfer personal data without the consent of the UK controller where they conclude that that is necessary to prevent an immediate, serious threat to public security or national security. The proposal would remove any delay to addressing serious and immediate threats.

Clause 21 introduces schedules 5 and 6, which reform the UK’s international personal data transfers regime. The clause also introduces schedule 7, which contains consequential and transitional provisions supporting the amendments to the UK’s regime for international transfer of data.

I come to amendment 104, which the Opposition have tabled. Should I deal with that now or allow the Opposition to speak to the amendment first, Mr Hollobone?

Philip Hollobone (Conservative, Kettering)

The Minister is being very courteous and generous, and he makes a very sensible suggestion. Will he respond to amendment 104 after the Opposition have spoken to it?

John Whittingdale (Conservative, Maldon)

It would make sense to explain the reasons why we are not convinced after we have heard the arguments in favour.

Philip Hollobone (Conservative, Kettering)

I call Stephanie Peacock.

Stephanie Peacock (Labour, Barnsley East)

I am grateful to the Minister, and I will focus my remarks particularly on the contents of schedule 5 before explaining the thought process behind amendment 104.

In the globalised world in which we live, we have an obligation to be outward looking and to consider not just the activities that take place in the UK, but those that occur worldwide. When it comes to data protection, that means accepting that data will likely need to travel across borders, and inserting appropriate safeguards so that UK citizens do not lose the protection of data protection laws if their personal data is transferred away from this country. The standard of those safeguards is absolutely crucial to the integrity of our entire data protection regime. After all, if a controller can simply send the personal data of UK citizens to a country that has limited data protection laws for processing that would be unlawful here, and if they can transfer that data back afterwards, in reality our laws are only as strong as the country with the weakest protections in the world.

As things stand, there is only a limited set of circumstances under which personal data can be transferred to a third party outside the UK. One such circumstance is where there is an adequacy agreement, similar to that which we have with the EU. For such an agreement to be reached, the Secretary of State must have considered many things, including the receiver’s respect for human rights and data rules; the presence, or lack thereof, of a regulator, and its independence; and any international commitments they have made in relation to data protection. These amendments ensure that data can flow freely between the UK and another country as long as the level of protection received by citizens is not undermined by the regulatory structure in that country.

The Bill amends the adequacy-based framework and replaces it with a new outcomes-based approach through the data protection test. The test is met if the standard of the protection provided for data subjects, with regard to the general processing of personal data in the country or by the organisation, is not materially lower than the standard of protection under the UK GDPR and relevant parts of the DPA 2018.

When deciding whether the test is met, the Secretary of State must still consider many of the same things: their respect for human rights, the existence of a regulator, and international obligations. However, stakeholders such as Reset.tech and the TUC have expressed concern that the new test could mean that UK data is transferred to countries with lower standards of protection than previously. That is significant not just for data subjects in the UK, who may be faced with weaker rights, but for business, which fears that this may signify a divergence from the EU GDPR that could threaten the UK’s own adequacy status. Losing this agreement would have real-world consequences for UK consumers and businesses to the tune of hundreds of millions of pounds. What conversations has the Minister had with representatives of the European Commission to ensure that the new data protection test does not threaten adequacy? Does he expect the new data protection test to result in the data of UK citizens being passed to countries with weaker standards than are allowed under the current regime?

Moving on to amendment 104, one reason why some stakeholders are expressing concern about the new rules is because they appear to omit article 44. As it stands, for those who are concerned about the level of data protection available to them as a result of international transfers, article 44 of the UK GDPR provides a guarantee that the integrity of the UK’s data protection laws will be protected. Indeed, it sets out that all provisions relating to the international transfer of UK personal data

“shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.”

If UK data will not be transferred to countries with weaker protections, it is not clear why this simple guarantee would be removed. The amendment would clear up any confusion around that and reinsert the article so that data subjects can be reassured of the strength of this new data protection test and of their rights.

Again, it is important to emphasise that getting the clause right is absolutely essential, as it underpins the entire data protection regime in the country. Getting it wrong could cost a huge amount, rendering the Bill, the UK GDPR and the Data Protection Act 2018 essentially useless. It is likely that the Government do not intend to undermine their own regulatory framework. Reinserting the article would confirm that in the Bill, offering complete clarity that the new data protection test will not result in lower levels of protection for UK data subjects.

John Whittingdale (Conservative, Maldon)

We completely agree with the hon. Lady that we would not wish to see data transferred to countries that have an inferior data protection regime. However, we do not think amendment 104 is required to achieve that, because the reforms in chapter 5 already provide for a clear and high standard of protection when transferring personal data overseas. It states that the standard of protection in that country must not be “materially lower” than the standard under the UK GDPR. That ensures that high standards of data protection are maintained. In addition, we feel that the amendment would return us to the confusion of the existing regime. At present, the legislative framework makes it difficult for organisations and others to understand what standard needs to be applied when transferring personal data internationally, with several terms used in the chapter and in case law. Our reforms ensure that a clear standard applies, which maintains protection for personal data.

The hon. Lady raised the EU’s data adequacy assessment. That is something that featured earlier in our debates on the Bill, and, as we heard from a number of our witnesses, including the information commissioner, there is no reason to believe that this in any way jeopardises the EU’s assessment of the UK’s data adequacy.

Government amendment 24 revises new article 45B(3)(c) of the UK GDPR, which is inserted by schedule 5 and which makes provision about the data protection test that must be satisfied for data bridge regulations to be made. An amendment to the Bill is required for the Secretary of State to retain the flexibility to make data bridge regulations covering transfers from the UK or elsewhere. The amendment will preserve the status quo under the current regime, in which the Secretary of State’s power is not limited to covering only transfers from the UK. In addition to these amendments, four other minor and technical Government amendments —25, 26, 28 and 29—were tabled on 10 May.

Schedule 5 - Transfers of personal data to third countries etc: general processing

Schedule 6 - Transfers of personal data to third countries etc: law enforcement processing

Clause 22 - Safeguards for processing for research etc purposes

John Whittingdale (Conservative, Maldon)

I beg to move amendment 34, in clause 22, page 36, leave out lines 20 to 22.

This amendment and Amendment 37 transpose the requirement for processing of personal data for research, archiving and statistical purposes to be carried out subject to appropriate safeguards from the beginning to the end of new Article 84B of the UK GDPR.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Government amendments 35 to 39.

Clause stand part.

Clause 23 stand part.

John Whittingdale (Conservative, Maldon)

Clause 22 creates a new chapter in the UK GDPR that provides safeguards for the processing of personal data for the purposes of scientific research or historical research, archiving in the public interest, and for statistical purposes. Currently, the provisions that provide safeguards for those purposes are spread across the UK GDPR and the Data Protection Act 2018.

Clause 22 consolidates those safeguards in a new chapter 8A of the UK GDPR. Those safeguards ensure that the processing of personal data for research, archiving and statistical purposes does not cause substantial damage or substantial distress and that appropriate technical and organisational measures are in place to respect data minimisation. Clause 23 sets out consequential changes to the UK GDPR and Data Protection Act 2018 required as a result of the changes being made in clause 22 to consolidate safeguards for research.

Government amendments 34 to 39 are minor, technical amendments clarifying that, as part of the pre-existing additional requirement when processing for research, archiving and statistical purposes, a controller is to use anonymous—rather that personal—data, unless that means that those purposes cannot be fulfilled. It makes clear that processing to anonymise the personal data is permitted. On that basis, I commend the clauses, and indeed the Government amendments, to the Committee.

Stephanie Peacock (Labour, Barnsley East)

With regards to clause 22, it is pleasing to see a clause confirming the safeguards that are applicable when processing under the new research and scientific purposes. For example, it is welcome that it is set out that such processing must not cause substantial damage or distress to a data subject, must respect the principle of data minimisation and must not make decisions related to a particular data subject unless it is for approved medical research.

Those safeguards are especially important given the concerns that I laid out over the definition of scientific research in clause 2, which could lead to the abuse of data under the guise of legitimate research. I have no further comments on the clause or the Government’s amendments to it at this stage, other than to reiterate that the definition of scientific research must have clear boundaries if any of the clauses that concern research are to be used as intended.

Clause 23 makes changes consequential on those in clause 22, so I refer to the substance of my remarks during the discussion of the previous clause.

Clause 24 - National security exemption

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following:

Amendment 105, in clause 25, page 44, line 6, leave out “must consult the Commissioner” and insert

“must apply to the Commissioner for authorisation of the designation notice on the grounds that it satisfies subsection (1)(b).”

This amendment seeks to increase independent oversight of designation notices by replacing the requirement to consult the Commissioner with a requirement to seek the approval of the Commissioner.

Clauses 25 and 26 stand part.

John Whittingdale (Conservative, Maldon)

Clause 24 introduces an exemption that can be applied to the processing of personal data for law enforcement purposes under the law enforcement regime for the purposes of safeguarding national security. It will replace the current, more limited national security exemptions that exist in the law enforcement regime and mirror the existing exemptions in the UK GDPR and intelligence services regime.

The clause will allow organisations to exempt themselves from specified provisions in the law enforcement regime of the Data Protection Act 2018, such as some of the data protection principles and the rights of the individual, but only where it is necessary to do so for the purposes of safeguarding national security. Like the other exemptions in the Act, it must be applied on a case-by-case basis. There are limits to what the exemption applies to. The processing of data by law enforcement authorities must always be lawful, and the protections surrounding sensitive processing remain.

Subsection (2) amends the general processing regime of the Data Protection Act, regarding processing under UK GDPR, to remove the ability of organisations to exempt themselves, on the grounds of safeguarding national security, from article 77 of the UK GDPR, which provides the right for individuals to lodge a complaint with the Information Commissioner. That is because we do not consider exemption from that provision necessary. The change will align the national security exemption applicable to UK GDPR processing with the other national security exemptions in the Data Protection Act 2018, which do not permit the exemption to be applied in relation to an individual’s right to complain to the Commissioner.

The ability of a Minister of the Crown to issue a certificate certifying the application of the exemption for the purposes of safeguarding national security, which previously existed, is retained; clause 24(8) simply updates that provision to reflect the new exemption. That change will assist closer working between organisations operating under the three distinct data protection regimes by providing greater confidence that data that, for example, may be of importance to a police investigation but also pertinent to a separate national security operation can be properly safeguarded by both organisations. I will allow the hon. Member for Barnsley East to speak to amendment 105, because I wish to respond to her.

Stephanie Peacock (Labour, Barnsley East)

I am grateful to the Minister. I want to speak today about a concern that has been raised about clauses 24, 25 and 26, so I will address them before speaking to amendment 105.

In essence, the clauses increase the opportunities for competent authorities to operate in darkness when it comes to personal data through both national security certificates and designation notices. Though it may of course be important in some cases to adjust data protection regulation in a minimal way to protect national security or facilitate working with the intelligence services, important too is the right to understand how any competent authority is processing our personal data—particularly given the growing mistrust around police culture.

To cite one stark example of why data transparency in law enforcement is important, after Sarah Everard was murdered, more than 30 police officers were reportedly investigated for unnecessarily looking up her personal data. First, that demonstrates that there is a temptation for officers to access personal data without due reason, perhaps particularly when it is related to a high-profile case. Secondly, however, it shows that transparency does hold people accountable. Indeed, thankfully, the individuals who were accused of accessing the data were swiftly investigated. That would not have been possible if that transparency had been restricted—for example, had there been a national security certificate or a designation notice in place.

The powers to apply for the certificates and notices that allow the police and law enforcement authorities exemptions from data protection, although sometimes needed, must be used extremely sparingly and must be proportionate to the need to protect national security. However, that proportionate approach does not appear to be guaranteed in the Bill, despite it being a requirement in human rights law.

In their oral and written evidence, representatives from Rights and Security International warned that clauses 24 to 26 could actually violate the UK’s obligations under the Human Rights Act 1998 and the European convention on human rights. Everything that the UK does, including in the name of national security or intelligence services, must comply with human rights and the ECHR. That means that any time there is interference with the privacy of people in the UK—which is considered a fundamental right—for it to be lawful, the law in question must do only what is truly necessary for national security. That necessity standard is a high one, and it does not take into account whether a change might be more convenient for a competent authority.

Will the Minister clearly explain in what way the potential powers given to law enforcement under clauses 24 to 26, in both national security certificates and designation notices, would be strictly proportionate and necessary for national security, rather than simply making the operations of law enforcement easier and more convenient?

Primarily, the concern is for those whose data could be used in a way that fundamentally infringes on their privacy, but there are practical concerns too. Any clauses that contain suspected violations of human rights could set up the Government for lengthy legal battles, both in the UK and at the European Court of Human Rights, about their data protection and surveillance regimes. Furthermore, any harm to the UK’s important relationships with the EU around data could threaten the adequacy agreement which, as we have all repeatedly heard, is vital to our economy.

It is vital, then, that Minister confirms that both national security certificates and designation notices will be used only where necessary, and exemptions will be allowed only where necessary. If that cannot be satisfied, we must oppose the clauses.

I will now focus on amendment 105. Where powers are available to provide exemptions to privacy protections on grounds of national security, it is important that they are protected from exploitation, and not unduly concentrated in any individual’s hands without appropriate checks and balances. However, Rights and Security International warned that that was not taken into appropriate consideration in clause 25. Instead, the power to issue designation notices has been concentrated almost entirely in the hands of the Secretary of State, with no accountability measures built in.

Designation notices allow for joint processing between a qualifying competent authority and the intelligence services, which could have greatly beneficial consequences for tackling crime and threats to our national security, but they will also allow for both those parties to be exempt from what are usually crucial data protections. They must therefore be used sparingly, and only when necessary and proportionate.

As we have seen—and as I will argue countless times—we cannot rely on the Secretary of State’s acting in good faith. Our legislation must instead protect against a Secretary of State who acts in bad faith. Neither can we rely on the Secretary of State having the level of expertise needed to make complex and technical decisions, especially those that impact on national security and data rights at the same time.

Despite that, under clause 25(2), the Secretary of State alone can specify which competent authorities qualify as able to apply for a designation notice. Under subsection (3), it is the Secretary of state alone to whom qualifying competent authorities will jointly apply. It is the Secretary of State who reviews a notice and has the power to withdraw it, and it is the Secretary of State who makes transition arrangements.

Although there is a requirement in the Bill to consult the commissioner, the amendment seeks to formalise some independent oversight of the designation process by ensuring that the commissioner has an actual say in approving the notices and adjusting the concentration of power so that it does not lie solely in the Secretary of State’s hands. That would mean that should the Secretary of State act in bad faith, or lack the expertise needed to make such a decision—whether aware or unaware of this fact—the commissioner would be able to help to ensure that an informed and proportionate decision was made with regard to each notice applied for. This would not present any designation notices from being issued when they were genuinely necessary; it would simply safeguard their approval when they were.

John Whittingdale (Conservative, Maldon)

I assure the hon. Lady that clauses 25 and 26 are necessary for the improvement of national security. The reports on events such as the Manchester and Fishmongers’ Hall terrorist incidents have demonstrated that better joined-up working between the intelligence services and law enforcement is in the public interest to safeguard national security. A current barrier to such effective joint working is that only the intelligence services can operate under part 4 of the Data Protection Act, which is drafted to reflect the unique operational nature of their processing.

Carol Monaghan (Scottish National Party, Glasgow North West)

Of course, the reports on incidents such as those at Fishmongers’ Hall and the Manchester Arena pointed to a general lack of effective collaboration between security forces and the police. It was not data that was the issue; it was collaboration.

John Whittingdale (Conservative, Maldon)

I certainly accept that greater collaboration would have been beneficial as well, but there was a problem with data sharing and that is what the clause is designed to address.

As the hon. Member for Barnsley East will know, law enforcement currently operates under part 3 of the Data Protection Act when processing data for law enforcement purposes. That means that even when they work together, law enforcement and the intelligence services must each undertake separate assessments regarding the same joint-working processing.

Philip Hollobone (Conservative, Kettering)

Order. I am making a habit of interrupting the Minister—I do apologise—but we have some news from the Whip.

Written evidence reported to the House