My Lords, that was intriguing. I thank the Minister for his response. It sounds as though, again, guidance would have been absolutely fine, but what is there not to like about the ICO bringing clarity? It was quite interesting that the Minister used the phrase “uncertainty in the sector” on numerous occasions and that is becoming a bit of a mantra as the Bill goes on. We cannot create uncertainty in the sector, so the poor old ICO has been labouring in the vineyard for the last few years to no purpose at all. Clearly there has been uncertainty in the sector of a major description, and all its guidance and all the work that it has put in over the years have been wholly fruitless, really. It is only this Government that have grabbed the agenda with this splendid 300-page data protection Bill that will clarify this for business. I do not know how much they will have to pay to get new compliance officers or whatever it happens to be, but the one thing that the Bill will absolutely not create is greater clarity.
I am a huge fan of making sure that we understand what the recitals have to say, and it is very interesting that the Minister is saying that the recital is silent but the ICO’s guidance is pretty clear on this. I am hugely attracted by the idea of including recital 38 in the Bill. It is another lightbulb moment from the noble Baroness, Lady Kidron, who has these moments, rather like with the age-appropriate design code, which was a huge one.
We are back to the concern, whether in the ICO guidance, the Bill or wherever, that scientific research needs to be in the public interest to qualify and not have all the consents that are normally required for the use of personal data. The Minister said, “Well, of course we think that scientific research is in the public interest; that is its very definition”. So why does only public health research need that public interest test and not the other aspects? Is it because, for instance,
the opt-out was a bit of a disaster and 3 million people opted out of allowing their health data to be shared or accessed by GPs? Yes, it probably is.
Do the Government want a similar kind of disaster to happen, in which people get really excited about Meta or other commercial organisations getting hold of their data, a public outcry ensues and they therefore have to introduce a public interest test on that? What is sauce for the goose is sauce for the gander. I do not think that personal data should be treated in a particularly different way in terms of its public interest, just because it is in healthcare. I very much hope that the Minister will consider that.
7.45 pm
I am a fan of the amendments tabled by the noble Baroness, Lady Kidron. The noble Baroness, Lady Harding, put her finger on it when talking about Amendment 22 in the name of the noble Baroness, Lady Jones. I do not like what is in the current clauses, but of greater importance is the Secretary of State’s power to extend this part of the Bill on what is covered by scientific research. I absolutely support Amendment 22. It is déjà vu all over again, as somebody once said. Basically, we are back to talking about the Secretary of State’s powers, as we did when discussing the Online Safety Bill and the digital markets Bill. This Government are addicted to giving the Secretary of State additional powers. It is like a fix that has to be taken. On any Bill produced by this Government in the last few years, there has been criticism by the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee but it has fallen on deaf ears.
As the noble Baroness, Lady Harding, said, the lobbying power of big tech is the real danger here: you get into the department, have a chat with the Secretary of State and Bob’s your uncle. That is why we passed amendments to the digital markets Bill. We did not want a coach and horses driven through that Bill, and we do not want a coach and horses arriving in this Bill as a result of this power. There will be plenty more to argue about at later stages of the Bill, but in the meantime I beg leave to withdraw my amendment.