Data Protection Bill [HL] — House of Lords, 2017-11-06
Topic: Civil Rights
Thomas Ashton (Conservative, Centre-right): My Lords, I am grateful to noble Lords who have spoken and for the opportunity to set out the purposes of various conditions included in Part 1 of Schedule 1 It is worth recalling that, in order for special categories of data to be processed lawfully, controllers must demonstrate that their processing meets one of a defined list of processing conditions set out in article 9 of the GDPR. Many controllers will meet this requirement by seeking the explicit consent of the data subject but the reality is there will be circumstances where it would not be appropriate, or indeed possible, for a controller to seek consent. In these cases, alternative conditions include processing which is necessary for the purposes of employment and social security; for the provision of health or social care; for public health; and for archiving and research. But for UK controllers to take advantage of these particular processing conditions, the UK must make suitable provision in UK law. That is what the conditions set out in Part 1 of Schedule 1 seek to do Paragraph 1 of that schedule, referenced in Amendment 25, refers to the processing of sensitive personal data where necessary for exercising obligations under employment law, social security law or the law relating to social protection. This is a specific category under article 9(2)(b) of the GDPR, and paragraph 1 gives it legislative effect It is true that the 1998 Act did not refer to social security and social protection law, but the GDPR gives them specific emphasis in recognition of the reality that processing of special categories of data may be necessary for the purposes of calculating social security benefits or arranging interventions by social services when people are in need of support. In practice, it may not be possible to obtain consent to every measure or decision which is taken about a person when arranging benefit payments or care provisions. Amendment 25 would remove paragraph 1(1)(a) from Schedule 1, making this clause ineffective and closing off a potentially valuable processing condition to social services and other care providers The noble Earl, Lord Kinnoull, and the noble Lord, Lord Clement-Jones, suggested in Amendment 25A that "under" employment law should be replaced with "in connection with" employment law. I appreciate the sentiment behind the amendment, which is to ensure that the provision does not operate too restrictively. However, the Government are satisfied the term is sufficiently broad to cover processing that would have been permitted for these purposes under the Data Protection Act, while operating within the limits of the derogation provided for by the GDPR. The new condition, which permits processing that is, "necessary for the purposes of performing or exercising obligations or rights of the controller or the data subject under employment law", would have the same meaning as the Data Protection Act wording, which referred to, processing necessary for the purposes of, "exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment" I therefore hope the noble Lords will accept my reassurances in that regard.