My Lords, I am pleased to be moving the Government’s technical amendments this evening, and, in particular, Amendments 3, 4 and 5 which respond to the concerns raised by the noble Baroness, Lady Royall, and others on behalf of the UK’s universities, schools and colleges. They were worried that the Bill would restrict their ability to process the data of alumni for fundraising purposes. As the noble Baroness explained in Committee, universities, schools and colleges were concerned that being badged as public authorities by Clause 6 would mean they could not rely on the legitimate interests processing condition in article 6(1)(f). This is because the final sentence of article 6(1) states:
“Point (f) … shall not apply to processing carried out by public authorities in the performance of their tasks”.
Universities also doubted whether, in the context of alumni relations, they could rely on article 6(1)(e) of the GDPR which relates to processing necessary for the performance of a task carried out in the public interest. Although there is a good argument that any fundraising or similar activity which allows universities to improve facilities for students would be considered a “public interest” task, the Government can see why universities might doubt whether all their fundraising work would fall into that category. If universities could not rely on articles 6(1)(e) or 6(1)(f), they say they would be left without an obvious processing condition in situations where obtaining the data subject’s consent, at least in the GDPR sense of that term, was not a realistic option.
Government Amendments 3, 4 and 5 address these concerns by making it clear that public authorities will be treated as public authorities for data protection purposes only when they are carrying out their public tasks. To the extent that they carry out non-public tasks, they would not be defined as a public authority for the purposes of the GDPR and would not be prevented from relying on the legitimate interests processing condition.
We recognise the amendment does not refer to universities, schools or colleges by name. This is deliberate, meaning that any public authority which is processing data for non-public functions will be able to rely on this provision. The education sector is not the only one to have these worries. I know, for example, that our museums and galleries would welcome the same degree of flexibility, and this amendment will ensure they have it. I am grateful to the noble Baroness for raising this matter and I hope these amendments will provide universities and other similar organisations with the reassurance they need.
I will not go through the remaining amendments in the group one by one, but instead pick out a few which I think may be of broader interest—for example, Amendments 145 and 146. In Committee, my noble friend Lord Hunt of Wirral was among those to express concerns about the inclusion of the term “other adverse effects” in the definition of damage in Clause 159. He asked whether this was broader than the definition in the GDPR. As I set out then, the Government’s intention in including a definition of damage in Clause 159 was to provide clarity, specifically in relation to the inclusion of distress. Clause 159 does not seek to provide a wider definition of damage than is currently provided in the GDPR; nor indeed could it.
None the less, in light of the concerns expressed by my noble friend, the Government have reconsidered this issue and decided to amend the definition to ensure that it is as clear as possible and to minimise the risk of any uncertainty such as that which concerned noble Lords. The amended definition now simply states that the reference to “non-material damage” in the GDPR includes distress. The definition of damage for the purposes of the law enforcement and intelligence services regimes is set out separately in Clause 160. Amendment 146 makes a similar change to that definition so that it is as clear as possible and no longer refers to “other adverse effects”. I beg to move.