Big wins in the battle to improve the Digital Economy Bill

Big Brother Watch Team / March 2, 2017

The Government have accepted and in part apologised for the poor drafting and lack of detail in the Digital Economy Bill.

Following the serious dressing down they received from the Lords Delegated Powers and Regulatory Reform Committee the Government have confirmed that they will be amending some key parts of the Bill at report stage in the House of Lords.

This is great news. Many of the concerns held by the Committee are concerns Big Brother Watch have been raising since the Bill was published last year. Indeed, the promised amendments will make 4 of our 12 asks for the Bill a reality.

The promised amendments relevant to our 12 asks are:

  1. All “specified persons” – ie those allowed to access, retain and share our personal information – will be listed on the face of the Bill not buried in the codes of practice. The list will also be “narrowed” down, offering reassurance we hope that not every man and his dog will be accessing and sharing our personal information. This amendment address number 12 of our key asks.
  1. “Specified persons” will only be allowed to share information for the purpose of the specific objective they are working on. Right now, the Bill wants specified people to be able to share any information for any purpose. This amendment therefore goes someway to reaching our ask number 6, that data sharing must be necessary, proportionate and for a legitimate purpose. It also goes some way to addressing the Lords Committee’s concern that the Bill allows for the sharing of data for “any purpose connected with the provision of public service”.
  1. Objectives for why information should be shared will be “narrowed”. A third objective will be added to the Bill – what that will be is unknown. We hope that it will address our ask number 7 that data should be shared when vital not simply to improve wellbeing.
  1. The codes of practice will be laid before Parliament and will not be brought into force until they have been voted on by Parliament. This is not normal procedure and the Government acknowledge this. They also acknowledge that because the codes “comprise such important safeguards and because public authorities would be acting unlawfully by failing to have regard to them” there is a necessity for it to be done properly. We welcome the acknowledgement that the codes will have to be legally binding documents which we called for in point 2 of our asks, however we remain disappointed that the intention is still for “specified persons” to only have “regard to” the codes.

Further amendments which we welcome are:

  1. The purposes for why gas and electricity suppliers will access and share our data will be “narrowed” so they are clearly defined on the face of the Bill. This should restrict opportunities for future mission creep by energy companies looking to access other data for further purposes.
  1. The attempts by Government to give themselves the power to make changes to Chapter 1 of Part 5 of the Bill at any time (as outlined in Clause 37 Regulations under this Chapter), was defined by the Lords Committee as a power that had been added “just in case it may prove useful”. The Government have acknowledged that was the case and will be removing it from the Bill.
  1. Powers to amend or repeal chapters 3 and 4 regarding debt and fraud will also be scrapped. The Government have stated that if after the three year review of the powers changes are required amendments will be tabled and be given “adequate parliamentary oversight”.

These amendments are a really positive move towards improving Part 5 of the Bill and we welcome them, but as ever intention has to be backed up by action, so we will be looking closely at the amendments when they are published, particularly at what the new “objective” for data sharing will be, as we remain very concerned about the continued intention to share data for the purpose of wellbeing.

Whilst we are pleased that 4 of our 12 asks are being addressed there are still 8 other asks we have, many of which were raised in the committee stage of the House of Lords (see our blog). We will continue to work to raise those concerns with the Lords ahead of report stage which will take place on the 20th March.

If the intention of Government continues to be that the technical, legal and privacy safeguards of the law are to be outlined in the codes of practice rather than on the face of the Bill the codes will need to be published sooner rather than later. Lord Keen’s attempts to reassure the Lords that the “intention to run a public consultation before laying the code before Parliament” would have had greater value if he had committed to a timetable for publication, however there is still no clarity as to when the codes are likely to be published.

We cannot stress enough that sharing data is a critical requirement in a data driven world but it must be done properly. Promises that any sharing must adhere to data protection law must be backed up with clear guidance and completely accurate definitions – even down to the critical point of establishing absolutely whether we are talking about information or about data.

The amendments outlined above are a really positive move by Government but there is still a lot to be done. Let’s hope they continue to work with all concerned parties to improve the Bill before it returns to Parliament.