My Lords, this group of amendments is about data protection principles. Our Amendments 129G and 129H would add transparency to the requirements of lawfulness and fairness for processing. Here, the directive is again being reflected, but why, since transparency is a requirement in the case of the intelligence services? I confess that I found this counterintuitive. I might have expected the services to have an argument against transparency because of the very nature of what they do, but not so law enforcement—at least, not so much.
Amendment 129J enables me to ask, as I did at Second Reading, why some activities are “strictly necessary” and others merely “necessary”. This arises in several places and this is the first example, although for good measure my Amendment 133ZJ seeks to add “strictly” to another of these—I am not sure that it was my best choice, but there you go. The point is that “strictly” calls into question just how necessary something that does not attract the term is. This may be an example of adopting language used in other legislation and directives without it having been considered in the context of UK legislation.
The Minister used the example of our seeking in the first group of amendments on these parts to change a term used in current legislation. I take that point, because it opens up a question as to whether there is any distinction. The point I am making about terminology is not a million miles away from that.
Amendment 130A concerns the scope for the Secretary of State to amend Schedule 8 by regulations. That schedule sets out the conditions for “sensitive processing”—in other words, when that processing is permitted. Should the Secretary of State be able to add circumstances when it is permitted, or to vary the schedule, omitting items from the schedule by regulations would fulfil the objective of protecting the data subject. That is very different from “adding” or “varying”.
Amendment 133ZB deals with another instance of different legislative styles. In Clause 34(1), the law enforcement purpose must be “legitimate”—an interesting term when applied to law enforcement. I suggest as an alternative “authorised by law”, a term used later in the clause, in order to probe this. In not very technical language “legitimate” suggests something wider than legal. It has elements of logic and justification and might import the notion of balance. The term comes from not only the GDPR but the 1995 directive—so
there is a history to this—and there are many examples of the accepted meaning of “legitimate” in EU law. However, I am concerned about how we interpret the term and apply it in the UK. Looking to the future, what will happen when we are cut adrift from the European Court of Justice? Presumably we will have to rely on the development of case law in the UK and the different UK jurisdictions. It is worth thinking about how this may be dealt with as we go forward.
On Amendment 133ZD, under Clause 36(3) a clear distinction needs to be made “where relevant”—the amendment would delete this—as far as possible between data relating to different categories of data subject. I do not see what “where relevant” means in this context. It begs the question of whether or not something is relevant and whether the provision is applicable.
Amendment 133ZE applies to Clause 36(4), which deals what must be done—or, rather, not done—with inaccurate, incomplete or out-of-date data, which must not be “transmitted or made available”. That is the phrase used and my amendment probes the question of why the term “disclosed” is not used. There is a definition of “processing” in Clause 2, which includes,
“disclosure by transmission, dissemination or otherwise making available”.
In other words, “disclosed” would cover everything.
Amendment 133ZK relates to Clause 40, which deals with the controller having an appropriate policy document. Under that clause, the controller must make the document available to the Information Commissioner. Is it not a public document? Should it not be published? The amendment proposes that it should be. I beg to move.