Data Protection Bill [HL] — House of Lords, 2017-11-15
Topic: Civil Rights
Susan Williams (Conservative, Centre-right): My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Stevenson, who negated the need for me to speak to Amendment 142A, so I shall not do so I turn straight to Amendment 142B. This requires the controller to provide a data subject with specified information about the processing of their personal data unless the controller has previously provided the data subject with that information. This contrasts with the existing approach in Clause 91(3), which provides that the controller is not required to give the data subject information that the data subject already has. Although similar, the shift in emphasis of this amendment could undermine Clause 91(2) by requiring the data controller to provide information directly to the data subject rather than to generally provide it. The effect of this could be to place an undue burden on the controller by preventing them providing such information generally, such as by means of their website Clause 92 provides for an individual to obtain confirmation from a controller of whether the controller is processing personal data concerning them and, if so, to be provided with that data and information relating to it. It sets out how an individual would request such information and places certain restrictions and obligations on meeting such requests Amendment 142C would add to the information that must be provided to a data subject. I do not believe this amendment is necessary. Clause 91 already provides that the general information that must be provided by a controller is information about how to exercise rights under Chapter 3 of Part 4 and I am sure that the Information Commissioner will put out further information about data subjects’ rights under each of the schemes covered by the Bill. The purpose of Amendment 142D is to remove the ability of the intelligence services to charge a fee for providing information in response to a request by a data subject in any circumstances. The noble Lord, Lord Stevenson, or the noble Lord, Lord Kennedy—I am not quite sure who it was; I think it was the noble Lord, Lord Stevenson—has contrasted the position in Part 4 with that in Parts 2 and 3 of the Bill, whereby a controller may charge a fee only where the subject access request is manifestly unfounded or excessive. The fact remains, however, that the modernised Convention 108, on which Part 4 is based, continues to allow for the charging of a reasonable fee for subject access requests and we are retaining the power to specify a maximum fee, which currently stands at £10 It is entirely right that the intelligence services should be required to respond to subject access requests, but we believe it is appropriate to retain the ability to charge because we do not want the intelligence services to be exposed to vexatious or frivolous requests that could impose a significant burden upon Part 4 controllers. As I have said, the modernised Convention 108 allows for the charging of a fee and there is a power in Clause 92 not just to place a cap on the amount of the fee but to provide that, in specified cases, no fee may be charged. I think this is the right approach and we should therefore retain Clause 92(3) and (4) Amendment 143A would require every subject access request under Clause 92 to be fulfilled within one month and would remove the Secretary of State’s ability to extend the applicable time period to up to three months for any cases. The Delegated Powers and Regulatory Reform Committee has considered this Bill and made no comment on this regulation-making power. In our delegated powers memorandum we explained the need for this provision, and the equivalent power in Part 3 of the Bill, as follows: "Meeting the default one month time limit for responding to subject access requests or to requests to rectify or erase personal data may, in some cases, prove to be challenging, particularly where the data controller holds a significant volume of data in relation to the data subject. A power to extend the applicable time period to up to three months will afford the flexibility to take into account the operational experience of police forces, the CPS, prisons and others in responding to requests from data subjects under the new regime" I hope the noble Baroness would agree that this is a prudent regulation-making power which affords us limited flexibility to take into account the operational experience of the intelligence services in operating under the new scheme.