Data Protection Bill [HL] — House of Lords, 2017-11-15
Topic: Civil Rights
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, from these Benches we also have some concerns about the national security and defence exemption. My noble friends Lord Clement-Jones and Lord Paddick have their names to a clutch of amendments to Clauses 24 and 26, and to a replacement for Clause 25—these are Amendment 124C and so on. These amendments essentially probe what Clause 24 means and question whether the requirements for national security certificates are adequate My first question is: what processing is outside the scope of EU law, and so would fall within Part 2 and not within Parts 3 and 4, the parts of the Bill on law enforcement and the intelligence services? Many of these amendments were suggested to us by Privacy International and one or two by Big Brother Watch. Those who know about these things say that they do not know what certificates exist under the current regime, so they do not know what entities may benefit from Clauses 24 to 26. However, Privacy International says that in their current form certificates are timeless in nature, lack transparency, are near impossible to challenge and offer overly broad exemptions from data protection principles, and all the rights of the data subject My second question is: what are "defence purposes"? That phrase does not feature in the interpretation clause of the Bill. The Explanatory Notes, in referring to the 1998 Act, refer to the section about national security. Is defence not a national security matter? There are very broad exemptions in Clause 24 and Privacy International even says that the clause has the potential to undermine an adequacy decision. For us, we are not convinced that the clause does not undermine the data protection principles—fairness, transparency, and so on—and the remedies, such as notification to the commissioner and penalties I note that under Clause 25(2)(a), a certificate may identify data, "by means of a general description" A certificate from a Minister is conclusive evidence that the exemption is, or was, required for a purpose of safeguarding national security, so is "general description" adequate in this context Amendment 124L proposes a new Clause 25 and is put forward against the background that national security certificates have not been subject to immediate, direct oversight. When parliamentary committees consider them, they are possibly tangential and post hoc. Crucially, certificates are open-ended in time. There may be an appeal but the proposed new clause would allow for an application to a judicial commissioner, who must consider the Minister’s request as to necessity and proportionality—words that I am sure we will use quite a bit in the next few hours—applying these to each and every provision from which exemption is sought. The Committee may spot that this could owe something to the Investigatory Powers Act Amendment 137P takes us forward to Part 3, the law enforcement part of the Bill. Clause 77(5) gives individuals the right to appeal against a national security certificate, but individuals will not know that they have been subject to such a national security certificate if the certificate itself takes away the specific rights which would require a controller or a processor to inform individuals that there was such a restriction in effect against them. The whole point of a right to access personal information and, on the basis of that, the right to appeal against a restriction, does not seem to us to work. The amendment provides for informing the data subject that he is a subject to a certificate Amendment 148C is an amendment to Part 4, which is the intelligence services part of the Bill. Clause 108 refers to an exemption being "required" for the purposes of national security. Our amendment would substitute "necessary", which is a more objective test. I might require something to be done, but it might not be necessary. It is more subjective. Amendment 148D would—I note the irony here—require a certificate because Clause 109 seems not to require it, although the certificate itself would be conclusive. Finally, Amendment 148H is our response to the Constitution Committee, which recommended that the Government clarify the grounds of appeal for proceedings relating to ministerial certificates under Clause 109, other than judicial review. We have set out some provisions which I hope will enable the Minister to respond to the committee’s recommendation.