Baroness Jones of Whitchurch (Lab)

My Lords, I thank noble Lords for their consideration of the issues before us in this group. I begin with Amendment 134 from the noble Lord, Lord Clement-Jones. I can confirm that the primary duty of the commissioner will be to uphold the principal objective: securing an appropriate level of data protection, carrying out the crucial balancing test between the interests of data subjects, controllers and wider public interests, and promoting public trust and confidence in the use of personal data. The other duties sit below this objective and do not compete with it—they do not come at the expense of upholding data protection standards. The commissioner will have to consider these duties in his work but will have discretion as to their application. Moreover, the new objectives inserted by the amendment concerning monitoring, enforcement and complaints are already covered by legislation. I thank the noble Lord, Lord Lucas for Amendment 135A. The amendment was a previous feature of the DPDI Bill but the Government decided that a statement of strategic priorities for the ICO in this Bill is not necessary. The Government will of course continue to set out their priorities in relation to data protection and other related areas and discuss them with the Information Commissioner as appropriate. Amendment 142 from the noble Viscount, Lord Camrose, would remove the ICO’s ability to serve notices by email. We would argue that email is a fast, accessible and inexpensive method for issuing notices. I can reassure noble Lords that the ICO can serve a notice via email only if it is sent to an email address published by the recipient or where the ICO has reasonable grounds to believe that the notice will come to the attention of the person, significantly reducing the risk that emails may be missed or sent to the wrong address. Regarding the noble Viscount’s Amendment 143, the assumption that an email notice will be received in 48 hours is reasonable and equivalent to the respective legislation of other regulators, such as the CMA and Ofcom. I thank the noble Lord, Lord Clement-Jones, for Amendment 144 concerning the ICO’s use of reprimands. The regulator does not commonly issue multiple reprimands to the same organisation. But it is important that the ICO, as an independent regulator, has the discretion and flexibility in instances where there may be a legitimate need to issue multiple reprimands within a particular period without placing arbitrary limits on that. Turning to Amendment 144A, the new requirements in Clause 101 will already lead to the publication of an annual report, which will include the regulator’s investigation and enforcement activity. Reporting will be categorised to ensure that where the detail of cases is not public, commercially sensitive investigations are not inadvertently shared. Splitting out reporting by country or locality would make it more difficult to protect sensitive data. Turning to Amendment 145, with thanks to the noble Baroness, Lady Kidron, I agree with the importance of ensuring that the regulator can be held to account on this issue effectively. The new annual report in Clause 101 will cover all the ICO’s regulatory activity, including that taken to uphold the rights of children. Clause 90 also requires the ICO to publish a strategy and report on how it has complied with its new statutory duties. Both of these will cover the new duty relating to children’s awareness and rights, and this should include the ICO’s activity to support and uphold its important age-appropriate design code. I thank the noble Lord, Lord Clement-Jones, for Amendments 163 to 192 to Schedule 14, which establishes the governance structure of the information commission. The approach, including the responsibilities conferred on the Secretary of State, at the core of the amendments follows standard corporate governance best practice and reflects the Government’s commitment to safe- guarding the independence of the regulator. This includes requiring the Secretary of State to consult the chair of the information commission before making appointments of non-executive members. Amendments 165 and 167A would require members of the commission to be appointed to oversee specific tasks and to be from prescribed fields of expertise. Due to the commission’s broad regulatory remit, the Government consider that it would not be appropriate or helpful for the legislation to set out specific areas that should receive prominence over others. The Government are confident that the Bill will ensure that the commission has the right expertise on its board. Our approach safeguards the integrity and independence of the regulator, draws clearly on established precedent and provides appropriate oversight of its activities. Finally, Clauses 91 and 92 were designed to ensure that the ICO’s statutory codes are consistent in their development, informed by relevant expertise and take account of their impact on those likely to be affected by them. They also ensure that codes required by the Secretary of State have the same legal effect as pre-existing codes published under the Data Protection Act. Considering the explanations I have offered, I hope that the noble Lords, Lord Clement-Jones and Lord Lucas, the noble Viscount, Lord Camrose, and the noble Baroness, Lady Kidron, will agree not to press their amendments.