Lord Clement-Jones

My Lords, I start with an apology, because almost every amendment in this group is one of mine and I am afraid I have quite a long speech to make about the different amendments, which include Amendments 73, 75, 76, 77, 78, 78A, 83, 84, 85, 86, 89 and 90, and stand part debates on Schedules 4, 5 and 7 and Clause 74. But I know that the Members of this Committee are made of strong stuff. Clause 70 and Schedule 4 introduce a new ground of recognised legitimate interest, which in essence counts as a lawful basis for processing if it meets any of the descriptions in the new Annexe 1 to the UK GDPR, which is at Schedule 4 to the Bill—for example, processing necessary for the purposes of responding to an emergency or detecting crime. These have been taken from the previous Government’s Data Protection and Digital Information Bill. This is supposed to reduce the burden on data controllers and the cost of legal advice when they have to assess whether it is okay to use or share data or not. Crucially, while the new ground shares its name with “legitimate interest”, it does not require the controller to make any balancing test taking the data subject’s interests into account. It just needs to meet the grounds in the list. The Bill gives the Secretary of State powers to define additional recognised legitimate interests beyond those in Annexe 1—a power heavily criticised by the Delegated Powers and Regulatory Reform Committee’s report on the Bill. Currently where a private body shares personal data with a public body in reliance on Article 6(1)(e) of the GDPR, it can rely on the condition that the processing is “necessary for the performance of a task carried out in the public interest”. New conditions in Annexe 1, as inserted by Schedule 4, would enable data sharing between the private and public sectors to occur without any reference to a public interest test. In the list of recognised legitimate interests, the most important is the ability of any public body to ask another controller, usually in the private sector, for the disclosure of personal data it needs to deliver its functions. This applies to all public bodies. The new recognised legitimate interest legal basis in Clause 70 and Schedule 4 should be dropped. Stephen Cragg KC, giving his legal opinion on the DPDI Bill, which, as I mentioned, has the same provision, stated that this list of recognised legitimate interests “has been elevated to a position where the fundamental rights of data subjects (including children) can effectively be ignored where the processing of personal data is concerned”. The ICO has also flagged concerns about recognised legitimate interests. In its technical drafting comments on the Bill, it said: “We think it would be helpful if the explanatory notes could explicitly state that, in all the proposed new recognised legitimate interests, an assessment of necessity involves consideration of the proportionality of the processing activity”. An assessment of proportionality is precisely what the balancing test is there to achieve. Recognised legitimate interests undermine the fundamental rights and interests of individuals, including children, in specific circumstances. When companies are processing data without consent, it is essential that they do the work to balance the interests of the people who are affected by that processing against their own interests. Removing recognised legitimate interests from the Bill will not stop organisations from sharing data with the public sector or using data to advance national security, detect crime or safeguard children and vulnerable people. The existing legitimate interest lawful basis is more than flexible enough for these purposes. It just requires controllers to consider and respect people’s rights as they do so. During the scrutiny of recognised legitimate interests in the DPDI Bill—I am afraid to have to mention this—the noble Baroness, Lady Jones of Whitchurch, who is now leading on this Bill as the Minister, raised concerns about the broad nature of the objectives. She rightly said: “There is no strong reason for needing that extra power, so, to push back a little on the Minister, why, specifically, is it felt necessary? If it were a public safety interest, or one of the other examples he gave, it seems to me that that would come under the existing list of public interests”.—[Official Report, 25/3/24; col. GC 106.] She never spoke a truer word. However, this Government have reintroduced the same extra power with no new articulation of any strong reason for needing it. The constraints placed on the Secretary of State are slightly higher in this Bill than they were in the DPDI Bill, as new paragraph (9), inserted by Clause 70(4), means that they able to add new recognised legitimate interests only if they consider processing the case to be necessary to safeguard an objective listed in UK GDPR Article 23(1)(c) to (j). However, this list includes catch-alls, such as “other important objectives of general public interest”. To give an example of what this power would allow, the DPDI Bill included a recognised legitimate interest relating to the ability of political parties to use data about citizens during election campaigns on the basis that democratic participation is an objective of general public interest. I am glad to say that this is no longer included. Another example is that a future Secretary of State could designate workplace productivity as a recognised legitimate interest—which, without a balancing test, would open the floodgates to intrusive workplace surveillance and unsustainable data-driven work intensification. That does not seem to be in line with the Government’s objectives. Amendment 74 is rather more limited. Alongside the BMA, we are unclear about the extent of the impact of Clause 70 on the processing of health data. It is noted that the recognised legitimate interest avenue appears to be available only to data controllers that are not public authorities. Therefore, NHS organisations appear to be excluded. We would welcome confirmation that health data held by an NHS data controller is excluded from the scope of Clause 70 now and in the future, regardless of the lawful basis that is being relied on to process health data.