I do not know whether it is usual or unusual for the regulator to engage in this way, but the Bill team engages with the Information Commissioner frequently and regularly, and, needless to say, it will continue to do so on this and other matters.
Children need particular protection when organisations are collecting and processing their personal data, because they may be less aware of the risks involved. If organisations process children’s personal data, they should think about the need to protect them from the outset and design their systems and processes with this in mind.
Before I turn to the substance of what the Bill does with the provisions on high-risk processing, I will deal with the first amendment in this group: Amendment 79. It would require data processors to consider data protection-by-design requirements in the same way that data controllers do, because there is a concern that controllers may not always be able to foresee what processors do with people’s data for services such as AI and cloud computing.
However, under the current legislation, it should not be for the processor to determine the nature or purposes of the processing activity, as it will enter a binding controller-processor agreement or contract to deliver a specific task. Processors also have specific duties under the UK GDPR to keep personal data safe and secure, which should mean that this amendment is not necessary.
I turn to the Clause 16 stand part notice, which seeks to remove Clause 16 from the Bill and reinstate Article 27, and Amendment 80, which seeks to do the same but just in respect of overseas data controllers, not processors. I assure the noble Lord, Lord Clement-Jones, that, even without the Article 27 representative requirement, controllers and processors will still have to maintain contact and co-operation with UK data subjects and the ICO to comply with the UK GDPR provisions. These include Articles 12 to 14, which, taken together, require controllers to provide their contact details in a concise, transparent, intelligible and easily accessible form, using clear and plain language, particularly for any information addressed specifically to a child.
By offering firms a choice on whether to appoint a representative in the UK to help them with UK GDPR compliance and no longer mandating organisations to appoint a representative, we are allowing organisations to decide for themselves the best way to comply with the existing requirements for effective communication
and co-operation. Removing the representative requirement will also reduce unnecessary burdens on non-UK controllers and processors while maintaining data subjects’ safeguards and rights. Any costs associated with appointing a representative are a burden on and a barrier to trade. Although the variety of packages made available by representative provider organisations differ, our assessments show that the cost of appointing representatives increases with the size of a firm. Furthermore, there are several jurisdictions that do not have a mandatory or equivalent representative requirement in their data protection law, including other countries in receipt of EU data adequacy decisions.