I thank noble Lords and the noble Baroness for their further detailed consideration of Clause 14.
Let me take first the amendments that deal with restrictions on and safeguards for ADM and degree of ADM. Amendment 41 aims to make clear that solely automated decisions that contravene any part of the Equality Act 2010 are prohibited. We feel that this amendment is unnecessary for two reasons. First, this is already the case under the Equality Act, which is reinforced by the lawfulness principle under the present data protection framework, meaning that controllers are already required to adhere to the Equality Act 2010. Secondly, explicitly stating in the legislation that contravening one type of legislation is prohibited—in this case, the Equality Act 2010—and not referring to other legislation that is also prohibited will lead to an inconsistent approach. As such, we do not believe that this amendment is necessary; I ask the noble Baroness, Lady Jones, to withdraw it.
Amendment 44 seeks to limit the conditions for special category data processing for this type of automated decision-making. Again, we feel that this is not needed given that a set of conditions already provides enhanced levels of protection for the processing of special category data, as set out in Article 9 of the UK GDPR. In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the UK GDPR and a separate condition for processing under Article 9. Furthermore, where an organisation seeks to process special category data under solely automated
decision-making on the basis that it is necessary for contract, in addition to the Articles 6 and 9 lawful bases, they would also have to demonstrate that the processing was necessary for substantial public interest.
Similarly, Amendment 45 seeks to apply safeguards when processing special category data; however, these are not needed as the safeguards in new Article 22C already apply to all forms of processing, including the processing of special category data, by providing sufficient safeguards for data subjects’ rights, freedoms and legitimate interests. As such, we do not believe that these amendments are necessary; I ask the noble Baroness, Lady Jones, not to press them.
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Amendment 46, in the name of the noble Baroness, Lady Kidron, intends to prevent solely automated decisions that have significant effects on children unless they are in a child’s best interest. I absolutely recognise the intent behind this amendment; indeed, the Government agree with the noble Baroness that all organisations must take great care when making solely automated decisions about the use of children’s data.
The Bill already includes a range of safeguards relating to solely automated decision-making that would protect children and adults alike, including ensuring that children and their parents are provided with information related to significant decisions that have been taken about them through solely automated means and given the opportunity to make representations and seek human review of those decisions. Where the processing involves children, organisations will need to provide the information in a clear, age-appropriate manner to ensure that they comply with their transparency obligations. The Government do not want solely ADM to be used when it negatively impacts children, nor do they believe that it should be; this is in line with lawfulness, fairness and the other data protection principles.