UK: Data (Use and Access) Bill: newcomer or a familiar face?

[co-authors: Rachel de Souza, Andrew Dyson]

Déjà vu in the world of UK data law: the Labour government has proposed reforms to data protection and e-privacy laws through the new Data (Use and Access) Bill (“DUAB“). The DUAB follows the previous government’s unsuccessful attempts to reform these laws post-Brexit, which led to the abandonment of the Data Protection and Digital Information (No.2) Bill (“DPDI Bill“), in the run-up to the general election.

The new Labour government first announced plans for a bill in the King’s speech in July. In a notable shift of emphasis from the DPDI Bill, the term ‘data protection’ has been dropped from the title of the Bill. Reform to the data protection and e-privacy regime is still an important part of the Bill, but arguably secondary to emphasis within the bill on wider data related policy initiatives, focussed on facilitating digital identities and securing access to ‘smart’ or ‘open’ data sets. This is reflected in the Government’s introduction that the new Bill will “harness the enormous power of data to boost the UK economy by £10 billion” and “unlock the secure and effective use of data for the public interest, without adding pressures to the country’s finances“.

Key data protection law changes

The Bill proposes very limited changes to the UK data protection regime. These are targeted and incremental and unlikely to have a material impact on day-to-day compliance for most businesses operating in the UK.

The specific areas of reform proposed include:

• Scientific research definition and broad ‘consent to research’: The DUAB creates a statutory definition of scientific research to help clarify how the various provisions in the UK GDPR which refer to ‘research’ are intended to be applied. The intention is to clarify that ‘scientific research’ can extend to cover research “carried out for commercial or non-commercial activity” and includes any research that “can reasonably be described as scientific”. This replicates similar proposals in the DPDI Bill, which effectively bring into the UK GDPR references that appear in the recitals to the GDPR, that suggest a broad interpretation of “scientific research” should be applied. The DUAB also clarifies that an individual may be able to give consent to their data being used for more than one type of scientific research, even if at the time consent is provided, it is not possible to identify all of those research purposes.
• Recognised legitimate interests: The DUAB helpfully introduces the concept of ‘recognised legitimate interests’ to provide a presumption of legitimacy to certain processing activities that a controller may wish to carry out under Article 6(1)(f) (legitimate interests). Again this is a helpful carry over from the DPDI Bill. The DUAB also introduces a new provision requiring any new recognised legitimate interest to be necessary to safeguard an objective listed in Article 23(1) UK GDPR (i.e. public security, the prevention, investigation, detection or prosecution of crime, public health, data subject rights etc.).
• Automated Decision Making: The DUAB will remove the requirement to establish a qualifying lawful basis before conducting automated decision making (the requirement currently at Article 21(2) UK GDPR), except where special category data is used. This change is particularly relevant to organisations using AI systems, potentially allowing those organisations to use ADM more widely than under EU GDPR. However, data subjects will still benefit from rights of objection and human intervention, and organisations will still need to carefully assess their use of ADM.
• Special category personal data: The DUAB grants the Secretary of State the authority to designate new special categories of personal data and additional processing activities that fall under the prohibition of processing special category data in Article 9(1) of the UK GDPR. This potentially extends the scope of additional protections afforded by Article 9, beyond the current prescribed list of categories of special category data in the UK GDPR. It is unclear whether the Government anticipates including any additional categories of data under this mechanism in the near term.

• Cookies: The DPDI Bill included a number of reforms to the rules on cookie consent. These have been retained in the DUAB. Businesses will likely find these changes helpful, as they have the effect of easing the consent requirements in some cases and provide greater clarity as to what falls within the “strictly necessary” exemption. One of the more challenging proposals by the previous government – that would have required cookie consent platforms to be centralised (e.g. into browsers) – has been withdrawn.
• PECR Enforcement Regime: The Bill fully aligns the UK GDPR / DPA and PECR enforcement regimes. This effectively increases regulatory exposure under the PECR to potential fines equivalent to the UK GDPR.
• International Data Transfers – The DUAB introduces amendments that are designed to clarify the UK’s approach to the transfer of personal data internationally and the UK’s approach to conduct of adequacy assessments. These are technical changes, but notably the EU approach to adequacy anticipates a third country has a regime that is ‘essentially equivalent’ to the EU standard; the DUAB moves away from that to a new threshold that the third country offers safeguards that are ‘not materially lower than’ the UK.
• ICO: The DUAB retains the majority of the reforms to the ICO, including the name change to an Information Commission, rather than a Commissioner, introducing a formal Board structure with an appointed CEO. The DUAB also aims to reduce the number of complaints reaching the ICO – by requiring complaints to be made first to the controller, with escalation to the authority only if they are not satisfactorily dealt with.

Which proposed changes have been dropped?

Many of the other reforms to UK data protection law proposed in the DPDI Bill have been dropped. Notably, the following provisions did not make their way into the new bill:

• The DPDI Bill proposed an expanded definition of ‘personal data’ which would have provided further clarification as to when data is related to an identified or identifiable individual and when it should be considered anonymous. That has been dropped.
• The DPDI Bill amended the accountability provisions within the UK GDPR, reducing the burden on smaller businesses to maintain records of processing, or carry out Data Protection Impact Assessments. Those changes have not be carried across. The role of the Data Protection Officer will also remain as is, with the previous proposal to replace the DPO with the concept of a ‘senior responsible individual’ dropped.
• The proposal in the DPDI Bill to exempt “vexatious” data subject access requests (in line with the terminology used in freedom of information law) has been discarded. Instead, the existing exemption of “manifestly unfounded or excessive” requests will continue to apply. Helpfully though the DUAB does incorporate a new provision allowing controllers to limit themselves to ‘reasonable and proportionate’ efforts in responding to access requests, a codification of ICO guidance and case law in this area.
• The proposal to remove a requirement on non-UK businesses to appoint a representative under Article 27 UK GDPR has been scrapped – the role of the representative in the UK remains for now.
• Some of the reform to the ICO has not survived, including the requirement for the ICO to take into account the government’s strategic priorities and some of the changes to the ICO’s enforcement powers.

Smart data schemes and digital identity verification

As noted above, data protection is no longer the main focus of the Bill, with large sections of the Bill set aside to deal with wider digital policy matters, including smart data schemes and certification for digital identity service providers “the Bill will create the right conditions to support the future of open banking and the growth of new smart data schemes” (HM Government).

• Smart data schemes – The DUAB gives the Secretary of State broad powers to make data regulations addressing access to business data and customer data, with sector specific ‘smart data’ regimes. Secondary legislation will follow that sets out much of the important detail here, but the essence of these provisions is to require data holders to provide or otherwise make available datasets, as well as give businesses and individuals the right to request access to those datasets. This is similar to elements of the EU Data Act and EU Data Governance Act at EU level, but goes further as it is not limited to IoT or public sector data. There is also a strong overlap with the European Health Data Space Regulation and the EU FIDA Regulation: promoting access to data for secondary uses and breaking down the barriers that exist between data holders and those persons, whether individuals or businesses, that would like access to data for certain, as yet undefined, purposes.
• Digital identity verification – The DUAB will separately establish a framework to facilitate the development of digital verification services. This framework aims to certify organisations that offer identity verification tools in accordance with the government’s trust framework standards. New provisions in the bill grant the Secretary of State the authority to deny certification on national security grounds and mandate that it consults with the Information Commissioner regarding relevant regulations.

What next?

Although the DUAB comes with some bold statements from the Government that it will “unlock the power of data to grow the economy and improve people’s lives“, the proposals represent incremental reform, rather than radical change. There are arguably no big surprises (and perhaps some missed opportunities) with much of the drafting a lighter version of what we saw in earlier drafts of the DPDI Bill, with some of the more innovative elements (around smart data access and use) still unclear as we await the detail of secondary legislation.

We will keep a close eye on the DUAB as it makes its way through Parliament. We expect a relatively smooth passage, given so much has already been through earlier legislative processes , so extensive debate seems unlikely.

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