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Data (Use and Access) Bill [HL]

My Lords, in carrying on on this group, I will speak to the question that Clause 78 stands part, and to Amendments 107, 109, 125, 154, 155 and 156, but to start I support Amendment 87 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. We had a masterclass from him last Tuesday and he made an extremely good case for that amendment, which is very elegant.

The previous Government deleted the EU Charter of Fundamental Rights from the statute book through the Retained EU Law (Revocation and Reform) Act 2023, and this Bill does nothing to restore it. Although references in the UK GDPR to fundamental rights and freedoms are now to be read as references to the ECHR as implemented through the Human Rights Act 1998, the Government’s ECHR memorandum states:

“Where processing is conducted by a private body, that processing will not usually engage convention rights”.

As the noble and learned Lord mentioned, this could leave a significant gap in protection for individuals whose data is processed by private organisations and will mean lower data protection rights in the UK compared with the EU, so these Benches strongly support his Amendment 87, which would apply the convention to private bodies where personal data is concerned. I am afraid we do not support Amendments 91 and 97 from the noble Viscount, Lord Camrose, which seem to hanker after the mercifully defunct DPDI.

We strongly support Amendments 139 and 140 from the noble Baroness, Lady Kidron. Data communities are one of the important omissions from the Bill. Where are the provisions that should be there to support data-sharing communities and initiatives such as Solid? We have been talking about data trusts and data communities since as long ago as the Hall-Pesenti review. Indeed, it is interesting that the Minister herself only this April said in Grand Committee:

“This seems to be an area in which the ICO could take a lead in clarifying rights and set standards”.

Indeed, she put forward an amendment:

“Our Amendment 154 would therefore set a deadline for the ICO to do that work and for those rights to be enacted. The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, made a good case for broadening these rights in the Bill and, on

that basis, I hope the Minister will agree to follow this up, and follow up his letter so that we can make further progress on this issue

”.—[Official Report, 17/4/24; col. GC 322.]

I very much hope that, now the tables are turned, so to speak, the Minister will take that forward herself in government.

Amendments 154, 155 and 156 deal with the removal of the principle of the supremacy of EU law. They are designed to undo the lowering of the standard of data protection rights in the UK brought about by the REUL Act 2023. The amendments would apply the protections required in Article 23.2 of the UK GDPR to all the relevant exceptions in Schedules 2 to 4 to the Data Protection Act 2018. This is important because data adequacy will be lost if the standard of protection of personal data in the UK is no longer essentially equivalent to that in the EU.

The EU’s adequacy decision stated that it did not apply in the area of immigration and referred to the case of Open Rights Group v the Secretary of State for the Home Department in the Court of Appeal. This case was brought after the UK left the EU, but before the REULA came into effect. The case is an example of how the preservation of the principle of the supremacy of EU law continued to guarantee high data protection standards in the UK, before this principle was deleted from the statute book by the REULA. In broad terms, the Court of Appeal found that the immigration exception in Schedule 2 to the Data Protection Act 2018 conflicted with the safeguards in Article 23 of the UK GDPR. This was because the immigration exemption was drafted too broadly and failed to incorporate the safeguards prescribed for exemptions under Article 23.2 of the UK GDPR. It was therefore held to be unlawful and was disapplied.

The Home Office redrafted the exemption to make it more protective, but it took several attempts to bring forward legislation which provided sufficient safeguards for data subjects. The extent of the safeguards now set out in the immigration exemption underscores both what is needed for compatibility with Article 23.2 of the UK GDPR and the deficiencies in the rest of the Schedule 2 exemptions. It is clear when reading the judgment in the Open Rights case that the majority of the exemptions from data subject rights under Schedule 2 to the Data Protection Act fail to meet the standards set out in Article 23.2 to the UK GDPR. The deletion of the principle of the supremacy of EU law has removed the possibility of another Open Rights-style challenge to the other exemptions in Schedule 2 to the Data Protection Act 2018. I hope that, ahead of the data adequacy discussions with the Commission, the Government’s lawyers have had a good look at the amendments that I have tabled, drafted by a former MoJ lawyer.

The new clause after Clause 107 in Amendment 154 applies new protections to the immigration exemption to the whole of Schedule 2 to the DPA 2018, with the exception of the exemptions that apply in the context of journalism or research, statistics and archiving. Unlike the other exemptions, they already contain detailed safeguards.

Amendment 155 is a new clause extending new protections which apply to the immigration exemption to Schedule 3 to the DPA 2018, and Amendment 156

is another new clause applying new protections which apply to the immigration exemption to Schedule 2 to the DPA 2018.

As regards Amendment 107, the Government need to clarify how data processing under recognised legitimate interests are compatible with conditions for data processing under existing lawful bases, including the special categories of personal data under Articles 5 and 9 of the UK GDPR. The Bill lowers the standard of the protection of personal data where data controllers only have to provide personal data based on

“a reasonable and proportionate search”.

The lack of clarity on what reasonable and proportionate mean in the context of data subject requests creates legal uncertainty for data controllers and organisations, specifically regarding whether the data subject’s consideration on the matter needs to be accounted for when responding to requests. This is a probing amendment which requires the Secretary of State to explain why the existing lawful bases for data processing are inadequate for the processing of personal data when additional recognised legitimate interests are introduced. It requires the Secretary of State to publish guidance within six months of the Act’s passing to clarify what constitutes reasonable and proportionate protections of personal data.

Amendment 109 would insert a new clause, to ensure that data controllers assess the risk of collective and societal harms,

“including to equality and the environment”,

when carrying out data protection impact assessments. It requires them to consult affected people and communities while carrying out these assessments to improve their quality, and requires data controllers to publish their assessments to facilitate informed decision-making by data subjects and to enable data controllers to be held accountable.

Turning to whether Clause 78 should stand part, on top of Clause 77, Clause 78 would reduce the scope of transparency obligations and rights. Many AI systems are designed in a way that makes it difficult to retrieve personal data once ingested, or understand how this data is being used. This is not principally due to technical limitations but the decision of AI developers who do not prioritise transparency and explainability.

As regards Amendment 125, it is clear that there are still further major changes proposed to the GDPR on police duties, automated decision-making and recognised legitimate interests which continue to make retention of data adequacy for the purposes of digital trade with the EU of the utmost priority in considering those changes. During the passage of the Data Protection and Digital Information Bill, I tabled an amendment to require the Government to publish an assessment of the impact of the Bill on EU/UK data adequacy within six months of the Act passing; I have tabled a similar amendment, with one change, to this Bill. As the next reassessment of data adequacy is set for June 2025, a six-month timescale may prove inconsequential to the overall adequacy decision. We must therefore recommend stipulating that this assessment takes place before this reassessment.