Data Protection Bill [HL] — House of Lords, 2017-11-15
Topic: Civil Rights
George Young (Conservative, Centre-right): The co-pilot is in charge of this leg of the legislative journey, so there may be some turbulence. I am very grateful to the noble Baroness for her explanation of these amendments. I particularly welcome what she said at the beginning of her remarks—namely, that these were probing amendments designed to improve the style. We are all in favour of improving style. Having read previous Hansards, I know that there has been broad cross-party support for the Bill’s provisions, particularly this part of it. I know that the Liberal Democrat Benches are particular enthusiasts for enshrining in UK law the provisions of the EU law enforcement directive As the noble Baroness has indicated, this group of amendments relates to the definition of various terms used in Part 3, including that of a competent authority and the meaning of "profiling". I also welcome the contribution of the noble Lord, Lord Kennedy, in support of some of the amendments The scope of the law enforcement processing regime is provided for in Part 3 of the Bill. Unlike Part 4, which applies to all processing of personal data by the intelligence services, the scheme in Part 3 is purpose-driven. The Part 3 scheme applies to processing by competent authorities, as defined in Clause 28, for any of the law enforcement purposes, as defined in Clause 29. This approach is clear from a reading of Part 3 as a whole. For example, each of the data protection principles in Clauses 33 to 38 refers to processing for any of the law enforcement purposes The definition of a competent authority needs to be viewed in that context. Competent authorities will process personal data under the scheme in Part 3 only where such processing is for one of the law enforcement purposes. If they process data for another purpose, as the noble Baroness indicated—for example, for HR management purposes—the processing would be undertaken under either the GDPR or applied GDPR scheme, as the case may be. That would be the default regime. I am not sure there is a case for yet another regime on top of the two we already have. As paragraph 167 of the Explanatory Notes to the Bill makes clear, a government department will be a competent authority for the purposes of Part 3 only to the extent that it processes personal data for a law enforcement purpose. For example, where DWP processes data in the course of investigating criminal offences linked to benefit fraud, it will do so as a competent authority The approach we have taken in Schedule 7 is to list all the principal law enforcement agencies, including police forces, prosecutors and those responsible for offender management, but also to list other office holders and organisations that have law enforcement functions supplementary to their primary function. For example, the list in Schedule 7 includes some significant regulators. We should remember that the definition of "law enforcement purposes" includes the "execution of criminal penalties", as set out in Clause 29. That being the case, it is entirely appropriate to list contractors providing offender management services. I hope this explanation deals with Amendment 129A. As I explained a moment ago, where such contractors process data for a non-law enforcement purpose—again, an example given by the noble Baroness—they will do so under the GDPR or applied GDPR scheme. Schedule 7 is not, and is not intended to be, a wholly exhaustive list, and other organisations with incidental law enforcement functions will come within the scope of the definition of a competent authority by virtue of Clause 28(1)(b). Police and crime commissioners, to which Amendment 127A relates, may be a case in point, but if they process personal data for a law enforcement purpose, they will do so as a competent authority by virtue of Clause 28(1)(b). The government amendments in this group should be viewed against that backdrop Since the Bill was introduced, we have identified a number of other organisations that it would be appropriate to add to the list in Schedule 7, and Amendments 125, 126, 128 and 129 are directed to that end. Government Amendment 127 modifies the existing entry in respect of the independent office for police conduct in recognition of the fact that under the reforms we are making to the Independent Police Complaints Commission, the director-general will be the data controller of the reformed organisation The amendments to Clause 31 all seek to amend the definition of profiling. First, Amendment 129C seeks to include "attributes" in the definition of profiling, which currently refers to "aspects". The existing wording reflects the terminology used in the LED, which is clear. In any event, the two words do not differ much in substance, so little is gained by the proposed addition In Amendment 129B and Amendments 129D to 129F the noble Baroness seeks to widen the definition of profiling so that it is not restricted to "certain" areas of profiling or to the aspects listed. However, the personal aspects itemised in the definition are not intended to act as an exhaustive list, and the inclusion of the words "certain" and "in particular" do not have this effect. The list refers to those aspects considered of most importance to profiling. Again, for these reasons, these amendments are not necessary. I think the noble Baroness conceded that we were simply replicating the existing terminology I hope I have been able to reassure her on these points and that she will be content to withdraw her Amendment 124Q and support the government amendments.