Clauses 70 and 71 of the New Data (Use and Access) Bill: Will We See a Different Approach to Delegated Powers in the New Parliament?

By Lucy Moxham. This post was written as part of the Bingham Centre's  Rule of Law Monitoring of Legislation Project. 

Introduction

This piece considers whether the delegation of legislative power is being appropriately circumscribed in the new Parliament. The question has arisen once again, this time in relation to the re-introduction of delegated powers that were first proposed by the previous government. Clauses 70(4) and 71(5) of the new Data (Use and Access) Bill reproduce, with some changes, Clauses 5(4) and 6(5) of the previous government's Data Protection and Digital Information Bill, which fell when the general election was announced. This piece focuses on the risks posed to the rule of law by excessive delegated powers. It has been recognised (see e.g., the Rule of Law Checklist adopted by the Council of Europe's Venice Commission ) that the scope of executive law-making powers, whether law-making procedures allow sufficient scrutiny of proposed legislation, and whether the resulting legal frameworks provide legal certainty, all impact on the rule of law.

A Digital Information and Smart Data Bill was trailed in the King's Speech background briefing notes in July 2024. The Data (Use and Access) Bill [HL] was introduced in the House of Lords on 23 October and had its second reading on 19 November. Committee stage is scheduled from 3 December. A press release states that the Bill will "unlock the secure and effective use of data for the public interest". It has been noted that many provisions in the new Bill are "similar or identical" to provisions in the previous government's Data Protection and Digital Information Bill which fell when Parliament was dissolved ahead of the general election. Therefore, we also highlight below some responses to the previous Bill that remain relevant to consideration of the new Bill.

The Data (Use and Access) Bill is over 250 pages long and, among other things, makes provision about access to customer data and business data, digital verification services, national underground asset register, registers of births and deaths, data protection and privacy, and the information commission. This comment piece does not consider the bill in its entirety and instead focuses on delegated powers in Clauses 70 and 71 relating to data protection principles. For an overview of the Bill and the other delegated powers it contains, see the House of Lords Library Briefing here and the Explanatory Notes accompanying the Bill.

Read the full comment piece here