PARLIAMENTARY DEBATE
Data Protection Bill [ Lords ] (Morning sitting) - 15 March 2018 (Commons/Public Bill Committees)

This is a wise and carefully crafted amendment. Does my hon. Friend agree that it is especially needed because the Government have rather unwisely decided not to incorporate article 8 into British law, which means there is a risk of courts in Europe and Britain interpreting data protection regimes differently, leading to divergence in future?

It is a privilege to serve under your chairmanship, Mr Streeter. I rise to support my hon. Friend on his excellent, very helpful amendment. Earlier in the week we had a debate about the wisdom of incorporating article 8 into the Bill. I want to underline that we now have two different foundations for privacy that will operate post-Brexit in Europe and in the UK. The law is not fixed in aspect; it is a dynamic body of thought and ideas, and in the years to come there is a risk that courts in Europe and in the UK will diverge in how they interpret those fundamental principles.

That risk is all the more profound in this area of public policy because technology is moving so quickly. Therefore, if the Government wanted to do away with the risk to any future adequacy agreements, they would look for any and every opportunity to create bridges between the EU data protection regime and the British regime. The more bridges that are put in place, and the more girders that yoke us together in this field of public policy, the better.

Companies will consider whether regulatory harmonisation in data protection will continue when they make investment decisions in the technology space in the UK. I am afraid that that is now a fact of economic life. The simpler and faster the Government can help companies take those decisions, by putting beyond dispute and doubt any future adequacy agreement, the better. It is in our common interest to try to create stronger links than the Bill offers. I hope that the Government will accept the amendment.

It is a pleasure to serve under your chairmanship, Mr Streeter. I thank the hon. Member for Bristol North West, who has great knowledge of these issues and has put his thoughts on his amendment very well to the Committee. As the Prime Minister said in her Mansion House speech, the ability to transfer data across international borders is crucial to a well-functioning economy, and that will remain the case after we leave the European Union. We are committed to ensuring that uninterrupted data flows between the UK and the EU continue. One way we can help to ensure that we have the foundations for that relationship is to continue to apply our exceptionally high standards for the protection of personal data.

Amendment 152 relates to the applied GDPR, which exists to extend GDPR standards to personal data processed for purposes outside the scope of EU law that may be otherwise left unregulated. The amendment is to schedule 6 of the Bill, which creates the applied GDPR by modifying the text of the GDPR so that it makes sense for matters outside the scope of EU law. The extension of GDPR standards is vital, because having a complete data protection regulatory framework will provide the UK with a strong foundation from which to protect people’s personal data and secure the future free flow of data with the EU and the rest of the world. Applying consistent standards ensures that those bodies—mostly public authorities—who process personal data, both in and out of the scope of EU law, experience no discernible operational difference when doing so.

However, the applied GDPR, although very close, is not identical to the GDPR known as the real GDPR. The differences are primarily the inevitable result of extending text designed for the EU to matters over which the UK and other member states retain competence. Reference to member states becomes a reference to our country; reference to the supervisory authorities becomes a reference to the Information Commissioner, and so on. Similarly, the applied GDPR, as a purely domestic piece of regulation, is outside the scope of the functions of the European data protection board and the EU Commission.

Decisions and guidance issued by the European Data Protection Board will have an important bearing on the GDPR as implemented in the UK. To ensure that the interpretation of the applied element of the GDPR remains consistent with the interpretation of the real GDPR, it is right that the Information Commissioner should have regard to decisions and guidance issued by the European Data Protection Board in carrying out her functions, as the UK regulator and enforcer of the applied GDPR. However, the amendment goes further, by requiring her to incorporate them into her guidance and codes of practice. The effect of that is to extend the ambit of the European data protection board so that, uniquely among member states, it would have within its purview processing outside the scope of EU law, when that processing was undertaken in the UK.

We do not agree that such an extension is required for the UK to achieve the relationship that we are seeking. By contrast, the current requirement in paragraph 49 of the schedule, for the commissioner to have regard to decisions and guidance issued by the European Data Protection Board in carrying out her functions means that she can and, in some cases, should incorporate into her guidance what she recognises as relevant and necessary. We are confident that that, founded on the commissioner’s discretion, remains the best approach. On that basis, I hope that the hon. Member for Bristol North West feels able to withdraw his amendment.

It is a pleasure to serve under your chairmanship, Mr Streeter. I listened closely to the Minister—I am struggling with the real and the applied GDPRs, as I am sure we all are—and the sense I get is that that will lead to potential divergence, which could have further consequences. We have reached an important point in the discussion. If we have divergence a few years down the line, does that not put adequacy at risk?

I reassure the hon. Gentleman that divergence, if it occurs, will apply only to the applied GDPR, which is outside the scope of EU law, and therefore may well apply in a similar sense to member states as well as to us, when we become a third country.

The Minister seemed to rest her argument on the need to preserve the Information Commissioner’s discretion, which implies that she is trying to protect the commissioner’s ability to go her own way. That will not help us to secure, lock down or nail to the floor an adequacy agreement in years to come. It will put an adequacy agreement at risk.

Could the Bill not also put the Information Commissioner in an extraordinarily difficult position? Decisions that she may make in the future could have huge political consequences. I would be surprised if she wanted to take that on.

I beg to move amendment 115, in schedule 6, page 180, line 2, leave out sub-paragraph (b) and insert—

“(b) in paragraph 2, for ‘Member States’ substitute ‘The Secretary of State’;

(c) after that paragraph insert—

‘3 The power under paragraph 2 may only be exercised by making regulations under section (Duty to review provision for representation of data subjects) of the 2018 Act.’”

This amendment is consequential on NC2.

These Government amendments concern the issue of class representation for data protection breaches. Article 80(1) of the GDPR enables a not-for-profit organisation to represent a data subject on their behalf, if the data subject has mandated them to do so. The Bill gives effect to the same right in clause 183. Where a not-for-profit organisation wants to bring a claim on behalf of multiple people, as things stand it will need to make multiple applications to the court. That is not efficient, and it would be better if all the claims could be made in a single application.

New clause 1 gives the Secretary of State the power to set out provisions allowing a non-profit organisation to bring a claim on behalf of multiple data subjects under article 80(1). We have taken the practical view that that will be an effective way for a non-profit group to seek a remedy in the courts on behalf of a large number of data subjects. The Bill does not give effect to article 80(2), which allows not-for-profit bodies to represent individuals without their mandate. We believe that opt-out collective proceedings should be established on the basis of clear evidence of benefit, with a careful eye on the pitfalls that have befallen so-called class-action lawsuits in other jurisdictions. The Government have, however, listened to the concerns raised and accept that further consideration should be given to the merits of implementing the provisions in article 80(2).

New clause 2 provides a statutory requirement for the Secretary of State to conduct a review of the operation of article 80(1), which will consider how it and the associated provisions in the Bill have operated in practice and assess the merits of implementing article 80(2) in the future. The review will involve consultation among relevant stakeholders, such as the Information Commissioner, businesses, privacy groups, the courts, tribunals and other Departments. The new clause requires the Secretary of State to conduct the review and present its findings to Parliament within 30 months of the Bill’s coming into force. That is necessary to provide enough time for there to be sufficient evidence to scrutinise the options provided in article 80(1) in the civil courts. Were the review period to be substantially shorter, it would increase the likelihood of there being a paucity of evidence, which would undermine the effectiveness and purpose of the review. Upon the conclusion of the review period, the Secretary of State will have the power, if warranted, to implement article 80(2), allowing non-profit organisations to exercise the rights awarded to data subjects under articles 77, 78, 79 and 82 on their behalf without first needing their authorisation to do so.

Amendments 63 to 68, 73, 74 and 115 are consequential amendments that tidy up the language of the related clause, clause 183. They provide additional information about the rights of data subjects that may be exercised by representative bodies. I commend the amendments to the Committee.

I will speak to amendments 154 and 155, which are in my name and those of my hon. Friends. The broad point I want to start with is a philosophical point about rights. If rights are to be real, two things need to be in place: first, a level of transparency so that we can see whether those rights are being honoured or breached; and, secondly, an efficient form of redress. If we do not have transparency and an effective, efficient and open means of redress, the rights are not real, so they are theoretical.

We think there are some unique circumstances in the field of data protection that require a slightly different approach from the one that the Government have proposed. The Government have basically proposed an opt-in approach with a review. We propose an opt-out approach. We think that the argument is clear cut, so we do not see why the Government have chosen to implement something of a half-measure.

The Bill gives us the opportunity to put in place an effective, efficient and world-leading form of redress to ensure that data protection rights are not breached. The reality is that large-scale data breaches are now part and parcel of life. They affect not only the private sector but the private sector, which is partnering with Government. We have seen a number of data breaches among Government partners where financial information has been leaked. The reality is that data protection breaches around the world are growing in number and size.

What is particularly egregious is that many private sector companies admit to the scale of a data breach only many years after the offence has taken place. Yahoo! is a case in point. It had one of the biggest data breaches so far known, but it took many months before the truth came out. That has been true of Government partners, too. Sometimes a lesser offence is admitted to. There is muttering about a particular problem and then, as the truth unfolds, we hear that a massive data breach has taken place. The reality is that these firms are by and large going unpunished. Although the Bill proposes some new remedies of a significant scale, unless those remedies can be sought by ordinary citizens in a court, they frankly are not worth the paper they are printed on.

To underline that point, I remind the Committee that often we look to the Information Commissioner to take the lead in prosecuting these offences. My hon. Friend the Member for Bristol North West was right to celebrate the strength of our current Information Commissioner, but the Government have not blessed the Information Commissioner with unlimited resources, and that will not change in the foreseeable future. What that means is that in the last year for which we have information—2016-17—the Information Commissioner issued only 16 civil monetary penalties for data breaches. That is a very small number. We think we need a regime that allows citizens to bring actions in court. That would multiply the power of the Information Commissioner.

Article 80 of the GDPR addresses that problem in a couple of ways, and the Minister has alluded to them. Article 81 basically allows group or class actions to be taken, and article 82 says that the national law can allow representative bodies to bring proceedings. The challenge with the way in which the Government propose to activate that power is that the organisation bringing the class action must seek a positive authorisation and people must opt in. The risk is that that will create a burden so large that many organisations will simply not step up to the task.

It is a pleasure to serve under your chairmanship this afternoon, Mr Streeter.

I support amendment 154. We strongly recommend that if the Government are, as they claim to be, serious about providing the best possible data protection regime to achieve the gold standard that they often talk about for UK citizens, they should look again at the issue of collective redress and make provision for suitably qualified non-profit organisations to pursue data protection infringements and breaches of their own accord, as provided for by the GDPR.

The right hon. Member for Birmingham, Hodge Hill rightly said that the amendments would allow representative bodies to bring such cases, but would also allow individuals to opt out. Currently there is not a level playing field. If the Bill is not amended, the already uneven playing field will become impossibly uneven for individuals whose rights are breached or infringed—probably by a tech giant.

Collective redress was one of the most controversial and hotly debated issues when the Bill was in the House of Lords. The Government resisted all attempts to change it there. There have been slight amendments since then, and an understanding has been reached, but I feel that what the Government propose does not go nearly far enough to address the concerns expressed by Scottish National party and Labour Members.

Anna Fielder, a former chair of Privacy International, wrote:

“Weak enforcement provisions were one of the widely acknowledged reasons why the current data protection laws, in the UK and elsewhere in Europe, were no longer fit for purpose in the big data age. As a result, it has been more convenient for organisations collecting and processing personal information to break the law and pay up if found out, than to observe the law — as profits made from people’s personal information vastly outweighed even the most punitive of fines.”

That is the situation we are in, and it is incumbent on legislators to level the playing field—not to make it even more uneven. However, as the Bill currently stands, it only enables individuals to request that such suitably qualified non-profit organisations take up cases on their behalf, rather than allowing the organisations themselves to highlight where they believe a breach of data protection law has occurred.

All too often, as has been pointed out on numerous occasions, individuals are the last people to know that their data has been unlawfully and in many cases illegally used. They depend on suitably qualified non-profit organisations, which are there to conduct independent research and investigations, to inform them that that is the case. Indeed, there was a very striking example recently in Germany, where the consumer federation took one of the tech giants to court over a number of platform breaches of current German data protection law, and it won. However, there are numerous examples across the world of organisations and groups highlighting bad or illegal practices that would hitherto probably have gone unnoticed here.

Privacy International recently published a report on the use and possible abuse of personal data connected to the rental car market. Which? has carried out research on online toys that are widely available in this country, which could pose serious child safety risks. The Norwegian consumer council has done similar work on toys, as well as exposing unlawful practices by health and dating apps.

Across the world, there are groups that do collective redress work very successfully in Belgium, Italy, Portugal, Spain, Sweden, Canada and Australia. I urge the Government to reconsider the matter and to see the great consumer benefits and protections that would come from accepting amendment 154. It would give not-for-profit organisations the right to launch complaints with a supervisory authority, as well as seeking judicial remedy, when it considered that the rights of a data subject under the GDPR had been breached.

I repeat that at the moment we have an uneven playing field. If the Bill goes through unamended it will become an impossible playing field for consumers, so I urge the Government to accept the amendment.

It is a pleasure to serve under your chairmanship, Mr Streeter. We have had three excellent speeches already in support of amendments 154 and 155, so I will not try to replicate them. As the right hon. Member for Birmingham, Hodge Hill said, this is one of the pivotal debates on the Bill. I would like to be positive, but all I can bring myself to say about the Government’s new clause and amendments is that they are marginally better than nothing. However, they do not go far enough and they will leave the UK significantly behind other EU countries in terms of collective redress and the pursuit of the gold standard of data protection. They will leave the Bill falling short of what the Government themselves promised on effective redress.

Only amendments 154 and 155 will provide a comprehensive opt-out regime and enable adults and children who are victims of data breaches properly to vindicate their rights to proper protection of their personal data. The amendments will provide a mechanism whereby serious breaches of data protection, which can affect the most vulnerable in society, are seriously addressed and result in real change that will benefit thousands if not millions of consumers across the UK.

The Bill provides a hugely significant opportunity to legislate for a cost-effective and efficient mechanism for redress in cases of mass data breaches, which we all know are increasingly common and which the Information Commissioner’s Office has limited resources to deal with. The measure is essential to make the Bill fit for purpose and I wholeheartedly support both amendments.

I thank right hon. and hon. Members for their contributions. We certainly agree with the need for a transparent system of rights over people’s personal data and a system of enforcement of those rights. We could not agree more with the thinking behind that, but we need to pause for thought before implementing article 80(2). The GDPR represents significant change, but we should test the effectiveness of the new enforcement scheme, including, as we have already discussed, article 80(1), before we make further changes of the type proposed this morning under amendments 154 and 155.

Amendment 154 applies article 80(2) with immediate effect and gold-plates it. We have a number of concerns with that approach. First, we are wary of the idea that data subjects should be prevented from enforcing their own data rights simply because an organisation or, in this instance, an individual they had never met before, got there first. That is not acceptable. It contradicts the theme of the Bill and the GDPR as a whole, which is to empower individuals to take control of their own data. As yet we have no evidence that that is necessary.

Let us take Uber—one of the most recent of the 200 data breaches listed on Wikipedia. In that case, 57 million records were leaked. How is one of those drivers going to take Uber to court to ensure justice?

The GDPR places robust obligations on the data controller to notify all data subjects if there has been a breach that is likely to result in a high risk to their rights. That example is almost unprecedented and quite different—

It is not unprecedented. Look at the Wikipedia page on data breaches. There are 200 of them, including Uber, Equifax, AOL, Apple, Ashley Madison, Betfair—the list goes on and on. I want an answer to a very simple question. How is a humble Uber driver, who is busting a gut to make a living, going to find the wherewithal to hire a solicitor and take Uber to court? What is the specific answer to that question?

If a data subject is sufficiently outraged, there is nothing to stop them contacting a group such as Which? and opting into a group action. Furthermore, a range of enforcement options are open to the ICO. It can issue enforcement notices to compel the controller to stop doing something that is in breach of people’s data rights. As I said, there is nothing to stop a data subject opting into a group action.

There is only one major precedent for the kind of scenario the Minister has sketched out today, which is Various Claimants v. Wm Morrisons Supermarket plc—a case she knows well. That case illustrates the difficulties of opt-in. It is by far the largest group of data protection claimants ever put together. Even then, the total number of people who could be assembled was 5,000 out of 100,000 people whose data rights were breached. That was incredibly difficult and took a huge amount of time. Even if the claim succeeds, the 95% of people not covered by the claim will not receive justice. I am not quite sure what new evidence the Minister is waiting for so that she has enough evidence to activate the kind of proposals we are talking about today.

As I said, the GDPR represents significant change. We believe we should test the effectiveness of the new enforcement scheme before we make further changes of the kind the right hon. Gentleman is suggesting. The Morrisons case was effective. The collective redress mechanism—group litigation orders—was used and was effective. The Information Commission will have new powers under the Bill to force companies to take action when there has been a breach of data.

There are other problems with amendment 154. First, like the right hon. Member for Birmingham, Hodge Hill, we are concerned about children’s rights. We would be concerned if a child’s fundamental data rights were weighed up and stripped away by a court without parents or legal guardians having had the opportunity to make the decision to seek redress themselves or seek the help of a preferred non-profit organisation. Once that judgment has been finalised, there will be no recourse for the child or the parent. They will become mere observers, which is unacceptable and makes a travesty of the rights they are entitled to enforce on their own account.

Secondly, we must remember that the non-profit organisations referred to in the amendment are, by definition, active in the field of data subjects’ rights. Although many will no doubt have data subjects’ interests at heart, some may have a professional interest in achieving a different outcome—for example, chasing headlines to promote their own organisation. That is why it is essential that data subjects are capable of choosing the organisation that is right for them or deciding not to partake in a claim that an organisation has advertised. The amendment would also allow an individual to bring a collective claim on behalf of other data subjects without their consent.

Does the Minister not accept, as I said earlier, that individuals are often the last people to know that their data has been breached and their rights have been infringed? For collective rights in hugely complicated areas, there must be a presumption that those rights are protected, and the Bill does not do that. I do not believe it reflects the principle that individuals are often the last people to know, and that they are the ones who need protecting.

The Information Commissioner has powers to force companies to notify data subjects of any breach of data, and there is a legal requirement on companies so to do.

The amendment would allow an individual to bring a collective claim on behalf of other data subjects without their consent. We oppose it because it does not give people the protection of knowing that the entity controlling their claim is a non-profit organisation with a noble purpose in mind. I am pleased to say that, as I outlined this morning, the Government’s position was supported in the other place by the Opposition Front Benchers and the noble Baroness Kidron.

I am incredibly disappointed with the Minister’s response, and I am not quite sure I believe that she believes what she has been reading out. I hope that between now and Report, or whenever the amendment is pressed to a vote, she will have the opportunity to consult Which? and her officials. The reality is that for complex public policy decisions, whether relating to organ donation or auto-enrolment pensions, we have well-established procedures for opting out, rather than opting in. There has been strong cross-party support for that over the past seven or eight years, and it reflects a reality in new economic thinking. Behavioural economics shows that opt-out is often better than opt-in.

If the Government pursue that line of argument on Report, in the other place and through to Royal Assent, we will not permit the Minister ever again to refer to the Bill as a gold standard in data protection. It is a shoddy, tarnished bronze. She has sought to ensure that the legal playing field is tilted in the favour of large organisations and tech giants, and away from consumers and children. That will lead to a pretty poor state of affairs. We now have enough precedents to know that the regime she is proposing will not work. This is not a theoretical issue; it has already been tested in the courts. Her proposal will not fix the asymmetry that potentially leaves millions of people without justice.

The idea that the Minister can present the Morrisons case as some kind of success when 95% of the people whose data rights were breached did not receive justice because they did not opt in to the class action betrays it all. She is proposing a system of redress that is good for the few and bad for the many. If that is her politics, so be it, but she will not be able to present the Bill as the gold standard if she persists with that argument.

It is a pleasure to serve under your chairmanship once again, Mr Streeter. I think it was about 18 months ago that we were in this very room, debating the Bill that became the Digital Economy Act 2017. We discussed at length the trade-off between the rights of data subjects, privacy, transparency and the need for Government access to data. In that context we were debating the rights of viewers of online pornography, rather than matters of national security. I note that the Government have had to delay the introduction of the regulations, because they failed to get to grips with the issues that we raised in Committee. I do not envy the new Minister, or, indeed, my right hon. Friend the shadow Minister, their task of attempting to get things right. It was one of the low points of my political career when I had to negotiate with the present Secretary of State for Digital, Culture, Media and Sport on what sexual acts would be blocked. I wish them both luck in taking the matter forward, and am glad I am dealing only with national security issues in the Bill that we are considering today.

As we come to crucial clauses that give Ministers and the security services a great deal more latitude, it is important for the Opposition to lay out key principles on national security certificates. Of course we support the legitimate interests of the intelligence services, as dictated by their statutory functions, including the safeguarding of national security. Of course we recognise that protecting citizens from harm often means striking a difficult balance between operational requirements and the rights of individuals who may fall within the scope of the investigations. We know that the security services take that seriously.

It is the Opposition’s duty, however, to scrutinise the Government’s approach, to ensure that any powers that explicitly allow the setting aside of citizens’ data rights under the Bill are proportionate and necessary, and that they will be overseen through appropriate safeguards. Clauses 26 and 27 provide for a national security certification regime allowing restriction of and exemption from a wide range of rights under the GDPR and the Bill on the basis of national security, and for defence purposes.

The Government state that national security falls outside the scope of EU law and, therefore, the GDPR, and that therefore any processing of personal data relating to national security will be governed by the applied GDPR. Article 4(2) of the treaty on the European Union provides that national security remains the sole responsibility of each member state. Despite that, EU data protection legislation provides for derogations for national security. If national security were entirely outside the scope of the EU treaty, such derogations would be unnecessary, so, as the Joint Committee on Human Rights argued, the provisions imply the retention of some level of EU scrutiny over derogations from EU data protection rights on the grounds of national security. It is thus not at all clear that the Government’s assertions about blanket national security exemptions are correct.

Furthermore, there is no clear definition of which entities will be covered by the extremely broad exemptions under subsection 1, which refers to “national security” and “defence purposes”. I am concerned that a measure allowing broad exemptions to the rights of citizens does not stipulate which entities will be entitled to jettison those rights. As was debated at length in the other place, there are no clear definitions of national security, or of the extended exemption for defence purposes, which goes beyond the Data Protection Act 1998, in the Bill or the explanatory notes. As the right hon. and learned Member for Rushcliffe (Mr Clarke) remarked during the passage of the Investigatory Powers Act 2016,

“National security can easily be conflated with the policy of the Government of the day.”—[Official Report, 15 March 2016; Vol. 607, c. 850.]

As the Joint Committee on Human Rights concluded,

“it is unclear why the authorities require such a breadth of exemptions from their obligations under the data protection regime.”

Before we move on to discuss our amendments to clause 26, I should be grateful if the Minister could assure us about the definitions of “national security” and “defence purposes” and in particular which entities they apply to.

I rise to speak to amendment 161 and amendments 162 to 169.

My apologies.

It is a pleasure to serve under your chairmanship, Mr Streeter. Clause 26 creates an exemption for certain provisions in the Bill only if that exemption is required for the purpose of safeguarding national security or for defence purposes. Where processing does not meet these tests, the exemption cannot apply. It is possible to exempt from most but not all the data protection principles the rights of data subjects, certain obligations on data controllers and processors, and various enforcement provisions, where required to safeguard national security or for defence purposes. In relation to national security, the exemption mirrors the existing national security exemption provided for in section 28 of the 1998 Act. The statutory framework has long recognised that the proportionate exemptions from the data protection principles and the rights of data subjects are necessary to protect national security. The Bill does not alter that position.

The exemption for defence purposes is intended to ensure the continued protection, security and capability of our armed forces and of the civilian staff who support them—not just their combat effectiveness, to use the outdated language of the 1998 Act. In drafting this legislation, we concluded that this existing exemption was too narrow and no longer adequately captured the wide range of vital activities that are undertaken by the Ministry of Defence and its partners. We have seen that all too obviously in the last two weeks.

On that point, will the Minister give way?

If the right hon. Gentleman is going to disagree with me that combat effectiveness would be a very narrow term to describe the events in Salisbury, of course I will give way.

I actually wanted to ask about interpreters who support our armed forces. There is cross-party consensus that sometimes it is important to ensure that we grant leave to remain in this country to those very brave civilians who have supported our armed forces abroad as interpreters. Sometimes, those claims have been contested by the Ministry of Defence. Is the Minister confident and satisfied that the Ministry of Defence would not be able to rely on this exemption to keep information back from civilian staff employed as interpreters in support of our armed forces abroad when they seek leave to remain in this country?

I cannot possibly be drawn on individual applications for asylum. It would be wholly improper for me to make a sweeping generalisation on cases that are taken on a case-by-case basis. I refer back to the narrow definition that was in the 1998 Act and suggest that our enlarging the narrow definition of combat effectiveness would mean including the civilian staff who support our brave troops.

The term “defence purposes” is intended to be limited in both application and scope, and will not encompass all processing activities conducted by the Ministry of Defence. Only where a specific right or obligation is found to incompatible with a specific processing activity being undertaken for defence purposes can that right or obligation be set aside. The Ministry of Defence will continue to process personal information relating to both military and civilian personnel in a secure and appropriate way, employing relevant safeguards and security in accordance with the principles of the applied GDPR. It is anticipated that standard human resources processing functions such as the recording of leave and the management of pay and pension information will not be covered by the exemption.

I am sorry to press the Minister on this point, and she may want to write to me as a follow-up, but I think Members on both sides of the House have a genuine interest in ensuring that interpreters who have supported our troops abroad are able to access important information, such as the terms of their service and the record of their employment, when making legitimate applications for leave to remain in this country—not asylum—or sometimes discretionary leave.

I am very happy to write to the right hon. Gentleman about that. The exemption does not cover all processing of personal data by the Ministry of Defence, but I am happy to write to him on that subject.

It may assist the Committee if I give a few examples of processing activities that might be considered to fall into the definition of defence purposes requiring the protection of the exemption. Such processing could include the collation of personal data to assist in assessing the capability and effectiveness of armed forces personnel, including the performance of troops; the collection and storage of information, including biometric data necessary to maintain the security of defence sites, supplies and services; and the sharing of data with coalition partners to support them in maintaining their security capability and the effectiveness of their armed forces. That is not an exhaustive list. The application of the exemption should be considered only in specific cases where the fulfilment of a specific data protection right or obligation is found to put at risk the security capability or effectiveness of UK defence activities.

The hon. Member for Sheffield, Heeley asked for a definition of national security. It has been the policy of successive Governments not to define national security in statute. Threats to national security are constantly evolving and difficult to predict, and it is vital that legislation does not constrain the security and intelligence agencies’ ability to protect the UK from new and emerging threats. For example, only a few years ago it would have been very difficult to predict the nature or scale of the threat to our national security from cyber-attacks.

Clause 26 does not provide for a blanket exemption. It can be applied only when it is required to safeguard national security or for defence purposes.

What weight does the Minister give to the written evidence that the Committee received from the Information Commissioner’s Office? It is obviously expert on this issue, and it addresses some of the points she made. It concludes that there is no threshold for when “defence purposes” are to be used, and that there is no guidance

“for when it is appropriate to rely on the exemption.”

What weight does the Minister give to that, and what is her response to the concern raised by the Information Commissioner’s Office?

Again, surely it is for the Executive—elected officials—to take responsibility for decisions that are made by data controllers in the Ministry of Defence. Obviously, the Department has considered the Information Commissioner’s representations, but this is not a blanket exemption. The high threshold can be met only in very specific circumstances.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

Clause 27

National security: certificate

I beg to move amendment 161, in clause 27, page 17, line 2, leave out subsection (1) and insert—

“A Minister of the Crown must apply to a Judicial Commissioner for a certificate, if exemptions are sought from specified provisions in relation to any personal data for the purpose of safeguarding national security.”

This amendment would introduce a procedure for a Minister of the Crown to apply to a Judicial Commissioner for a National Security Certificate.

With our amendments we seek to provide some oversight of and protections against the very broad definitions in this part of the Bill. I am afraid we are not content with the Minister’s assertions in her response on the previous clause.

As they currently stand, national security certificates give Ministers broad powers to remove individuals’ rights with absolutely no oversight. If this is a matter for the Executive, as the Minister has just said, they must be subject to oversight and accountability when making such decisions, and as it stands there is absolutely none at all. The rights at risk from the exemption are the right to be informed when personal data is collected from individuals, which is in article 13 of the GDPR; the right to find out whether personal data against them is being processed, in article 15; and the right to object to automated decision making, in articles 21 and 22. Furthermore, the Information Commissioner’s inspection, authorisation and advisory powers are set aside, which is why she and her office raised concerns, as my hon. Friend the Member for Cambridge set out.

It is not difficult to envisage examples of why those exemptions may be necessary. The Minister has laid some of them out: for instance, during the course of an ongoing national security investigation, the right of an individual to be informed that their data is being processed would not be appropriate. With these exemptions, there will inevitably be a need for appropriate safeguards to protect the rights of citizens. We are not yet convinced that the Bill contains them. That is what these amendments seek to tackle.

It may come as no surprise that I rise to speak in support of amendments 161 to 169. They are intended to challenge the Government’s plan to introduce a national security certification regime that will allow the restriction of and exemptions from a wide range of fundamental rights on the basis of national security and defence. Although it is absolutely right that, as a country, the UK has the ability to act in its own national security interest, I and many others are worried that the scale and scope of what is proposed in the Bill goes much further than the 1998 Act by widening the national security definition to include a further and, I would suggest, undefined range of defence purposes.

The Minister gave three or four examples earlier, but stressed that it was not an exhaustive list. Given the broad and indefinite nature of those national security exemptions, we are concerned that they do not meet the test of being both necessary and proportionate. How much confidence can we have that an individual’s fundamental rights will be best protected when the exemptions will be signed off by a Government Minister with little or no judicial oversight? It is also concerning that there appears to have been little or no attention to the harmful impact of exempting vast amounts of information from data protection safeguards by relying upon national security certificates.

As we heard earlier, the list of rights that are exempted, set out in clause 26, includes the right to be informed when data is being collected, the right to find out when personal data is being processed and the right to object to automated decision making. Those exemptions are to be exercised by a certificate, which, as I say, will be signed by a Minister, who will certify that an exemption from those rights and obligations is necessary for the purpose of safeguarding national security.

That means that, as the Bill is currently drafted, people’s rights could be removed by a politician without any form of judicial oversight. That cannot be right. We would argue most strongly that there has to be judicial oversight of any such decision, to prevent the removal of individual data protection rights from being permitted purely at the say-so of a Government Minister. I ask the Minister, how do the Government define national security and defence purposes in the context of the Bill? I certainly was not satisfied with the explanation we heard earlier on. I believe that these undefined terms are unnecessarily open-ended and broad, and open to vague interpretation. They could very well result in the removal of an individual’s rights unnecessarily. The lack of a clear definition of national security and defence purposes also means that people will be unable to foresee or understand when their rights will be overridden by the application of these exemptions. Surely that is incompatible with an individual citizen’s fundamental rights.

These exemptions, on the surface, are not limited to the UK’s intelligence and security services. As we heard when debating part 2 of the Bill, which deals with general processing, they broadly permit public authorities, and even private corporations on occasion, to invoke national security and defence as a reason to cast aside privacy rights. Can the Minister explain if, how, and under what circumstances a public authority or private company could invoke national security and defence as a reason to cast aside privacy rights?

That brings me to necessity and proportionality, which are fundamental principles when looking at exemptions from data protection, and which will be examined extremely closely by the European Commission and its legal team when it decides on the UK’s suitability for adequacy after Brexit. The principles of necessity and proportionality are enshrined in the European convention on human rights. A Minister must take them into account when they consider restricting or limiting an individual’s rights, such as those under article 8, the right to privacy.

As the Bill stands, no conditions or tests are imposed on a Minister’s decision to withdraw an individual’s personal data protection rights by issuing a national security certificate. There is no limitation on how a national security certificate should run or how long it should operate for. There is no obligation to review the ongoing necessity of having a live certificate. In effect, a certificate is open-ended and indefinite. My concern is that that may allow the state to use a certificate for activities for which it was not considered relevant or appropriate by the Minister when it was first issued or signed.

That loophole cannot be considered proportionate or necessary. The certificates have to be time-limited. That does not mean that once a certificate has expired it cannot be re-certified, but it would ensure that certificates that are no longer necessary or that have been used beyond their original remit do not continue indefinitely. Perhaps the Minister could explain why she thinks such a system could not work, and why it would not be in the best interest of the state and of protecting an individual’s rights.

As with everything we do, including everything we have done in this area in the past couple of years, the Bill has to be seen against the backdrop of Brexit. Not only do we have to comply with the GDPR, but we have to do so in a way that means the United Kingdom will achieve the vital, much sought after adequacy decision from the European Commission. We also have to keep our laws consistent with EU law to maintain that adequacy status. I fear that the widespread use of exemptions and, perhaps more worryingly, the undefined range of defence purposes could deal a severe blow to the UK achieving an adequacy decision from the European Commission.

Can the Minister tell me whether the Government have been given cast-iron guarantees that the new and undefined range of defence purposes will be consistent with EU law, to allow us not just to achieve adequacy but to maintain adequacy post Brexit?

On reflection, I would not wish the hon. Member for Cambridge to understand my earlier answer to mean that a Minister makes a decision on defence purposes. I apologise to him if that was not clear. It is the data controller at the Ministry of Defence who makes that decision. The data controller is accountable to Ministers and in due course to domestic courts. I hope that clarifies that.

I think I am going to be cut off for lunch, Mr Streeter.

Much as I would like the Minister to speak rapidly, I will move the Adjournment.

Ordered, That the debate be now adjourned.—(Nigel Adams.)