Protection of Freedoms Bill

My Lords, as regards consultation, we consult till the cows come home in this department and every other department, and I am distinctly happy about the amount of consultation that has taken place on this issue. We will move on now from feed-in tariffs and solar panels and get on to the gist of the amendment. My noble friend Lord Lucas is obviously not completely convinced that there is a need for parental consent at all, but accepts that he could be persuaded as long as, as I understand him, it is not overburdensome. That point is probably behind the amendments from the noble Lord, Lord Rosser, and others. By the way, the noble Lord, Lord Rosser, did ask in passing for confirmation of the figures he used, and I can confirm, if I heard them correctly, that he is broadly right. Our figures are that some 30 per cent of secondary schools and some 5 per cent of primary schools are making some use of biometric systems for dealing with matters which, again one ought to stress, are largely related to access to school dinners, libraries and that sort of thing—so not major matters that affect them in other ways. My noble friend obviously needs a degree of persuading about these matters. It is probably best if I go through the amendments in the appropriate order. I will deal with them in an order that I will take rather than as they are set out, but possibly I will leave Amendment 85, the first of my noble friend’s amendments, which even he described as being garbled; it is possibly best if I say little about that. I think my noble friend will understand why I take these a little out of order. I will start with Amendment 88. Amendment 88 would have three consequences. First, it would obviously narrow the definition of who is a parent for the purposes of these provisions. Secondly, it would change the scope of the requirement for consent in that only one parent will need to consent. Thirdly, it seeks to introduce legal protection for schools and colleges where a child’s biometric information is processed beyond the control of that school or college. I will begin by addressing the first and third effects of that amendment. For the purposes of these clauses, a parent means the child’s mother, father or any other individual who has parental responsibility for the child. Where it is not possible to obtain consent from any such persons, the parent is the person who cares for the child, unless the child is accommodated by a local authority or some voluntary organisation, in which case consent will be needed from that authority. My noble friend’s amendments obviously narrow this definition to include only individuals with parental responsibility. This would mean that, where there is no individual with parental responsibility who is able to consent, a school or college would be able to process a child’s biometric information without any person providing consent. I am sure that is not my noble friend’s intention, and he would probably want to adjust his amendment if he comes back to it—and I see my noble friend nod. The Government believe that all children, whatever their care arrangements, deserve the same level of protection in relation to the use of their personal information by a school or college. That is why we believe it is right that the definition of a parent goes wider than that suggested by my noble friend. Again I see my noble friend nod, and if he wants to come back to that he will no doubt amend his amendment. The third element of this amendment seeks to provide protection for schools and colleges where a child’s data is processed outside of the control of the school or college. I know that my noble friend is concerned that these provisions should not apply when pupils access commercial websites or software systems that use face recognition to control access. I can give reassurance to my noble friend that the provisions in Clause 26 cover only the processing of biometric information that is carried out by, or on behalf of, the school or college. Let me move on from Amendment 88 to the alternative approaches suggested by my noble friend in Amendments 85 and 87. It is also appropriate to consider here Amendments 86 and 89, from the noble Lord, Lord Rosser, which address a similar point and which I think my noble friend said he possibly preferred to his own. All those amendments seek to adopt a different approach to consent. At their most radical, they seek to replace the opt-in arrangement provided for in the Bill with an opt-out process. As a variant of this, they seek to provide for consent to be given by a single parent. Given the sensitive nature of the data involved, a positive decision should be made by both parents. This approach would afford them the opportunity to act on any concerns that they may have about the use of their child’s biometric information. In the vast majority of cases I would expect parents to discuss the issues between themselves and reach some agreement. As those of us who are parents will know, that is not always necessarily possible but, in the main, parents can reach that conclusion among themselves. On safeguards, as noble Lords will be aware, Clause 26 includes two important safeguards, which ensure that the rights of children are properly respected. The first prohibits a school or college from processing a child’s biometric data where the child objects to such processing or where they refuse to participate in a process involving an automated biometric recognition system, regardless of whether their parents have consented or not. The noble Lord, Lord Rosser, does not agree with that and thinks that the parents’ rights should overrule the child’s. I put to the noble Lord the example of a 15 year-old child who refuses point blank to have his biometric data taken, despite his parents being perfectly happy about it. Would the noble Lord be happy for that 15 year-old to be dragged kicking and screaming to the fingerprint machine to have his data taken, or is he suggesting something else? My belief is that we need parental consent—I will deal with that later—but the child’s consent is equally valid. I am sure the noble Lord would not consider it right for that 15 year-old to be dragged kicking and screaming, as I have said, to the fingerprint machine. The second safeguard requires the school or college to make reasonable alternative arrangements for pupils to access services or facilities where parental consent has not been given or where the child objects. Again, that is quite right and something that is perfectly easily managed by those who provide the machinery for these things. Amendments 90 and 92, tabled by my noble friend Lord Lucas, require only that schools and colleges must, "““as far as they are reasonably able””," ensure that biometric data are not processed where the child has refused; and, as far as they are reasonably able, provide alternative arrangements. Again, that is technologically easy and can be done. I recognise that my noble friend seeks to ensure that schools and colleges are not saddled with unnecessary burdens and I am in full agreement with him on that. However, those amendments would weaken two very important safeguards that will protect the rights of children in relation to their biometric information. The two amendments of the noble Lord, Lord Rosser, Amendments 86 and 89, would have a significant impact on the first of those safeguards. They would remove the right of children aged 16 and under to object to their biometric information being processed. As I have made clear, we believe that children should have that right, regardless of their age. Again, I put that question about the 15 year-old—although it might be a seven year-old—to the noble Lord. It is one that he needs to address. In respect of Amendment 90, I cannot envisage any school or college having difficulty in ensuring they do not process the data of a child who has refused or where parental consent has not been given to such processing. It should be abundantly clear when a child refuses to have his or her biometric information taken or to participate in a process involving an automated biometric recognition system, even in the case of very young children. On Amendment 91 in the name of my noble friend Lady Hamwee, I am sure that she would agree that it would be unacceptable for children to be disadvantaged because they did not want to use an automated biometric system or if their parents refused to give consent for such purposes. Amendment 95 would remove from Clause 27 the requirement on schools and colleges for consent, or withdrawal of consent, to be obtained in writing. We believe that requiring schools and colleges to gain written consent ensures that parents are aware that their child’s school or college uses an automated biometric system and that, by signing the consent form, parents are actively involved in determining whether or not their child participates in that system. Again, I confirm to the noble Earl, Lord Erroll, that written consent includes electronic as well as other means. I hope the noble Earl will accept that. I turn now to the age limit. Amendment 97 seeks to alter the requirement for parental consent to be obtained in relation to all children under the age of 18 so that it would be required only for children under the age of 16. Noble Lords will be aware that the Joint Committee on Human Rights suggested in relation to older children—16 or 17 year-olds—that they should be capable of reaching their own decisions on such matters. It has been suggested by some that people can drive—I cannot remember whether they can smoke—and do all kinds of things when they are 17 years-old. They can also serve in the Armed Forces, although they tend not to go abroad until they are 18. There are different ages for different matters for which people need consent: it is 17 for driving, 16 for marriage and I think that for the issue of firearm certificates the age goes down quite a lot. However, people can vote only at 18. Some believe that that should be reduced to 16, but I do not support that and I do not think it is a part of the coalition agreement. However, I need not get into voting ages. A variety of different ages affect us in different ways and, given these complex factors, we consider that it is a question of balance. Even 16 or 17 year-olds may not always fully understand the issues that arise in relation to processing biometric information. Even then it is important that parents should have a say in the matter. Similarly, we believe that children should have a say in it and that is why we are, in effect, giving children a veto in this matter. Such an age limit is not without precedents. As I have made clear, there are different age limits for different matters. Again, as I said, it is a question of balance in these matters and it will be difficult to get it right. We believe that 18 is the right age and that children under that age should have a right to opt out. Amendment 94 relates to the provision in Clause 27(1)(d) which, as currently drafted, provides that parental consent is not required where, "““it is otherwise not reasonably practical to obtain the consent of the parent””." My noble friend is concerned to address the question raised by the Information Commissioner as to whether schools which currently process pupils’ biometric information without specific parental consent would be able to rely on the provision in Clause 27(1)(d) and claim that, because of the administrative and financial burden of doing so, it would not be reasonably practical for them to obtain parental consent in relation to children who were already participating in an automated biometric recognition system. I can reassure my noble friend that the exception he seeks to remove cannot be used simply because it would be inconvenient or difficult to obtain consent. Amendment 98, the last of my noble friend’s amendments in this group, seeks to add to the definition the word ““inanimate”” before ““equipment””. I believe that my noble friend’s intention is to ensure that any living being or object capable of animate interpretation is excluded from this definition. I can assure him that the clause as drafted already provides for this.