Consideration of Commons amendments and / or reasons in the Lords
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Lord Ashton of HydeCrossbench- Quote
- That this House do agree with the Commons in their Amendments 1 to 28.
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- The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)Crossbench
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- My Lords, with the leave of the House, I beg to move that this House do agree with the Commons in their Amendments 1 to 28. I will speak also to the other amendments in this group. It is my pleasure to be able to open Lords Consideration of Commons amendments to the Data Protection Bill this afternoon. As we discussed at length when the Bill first passed through your Lordships’ House, this is a detailed and often quite technical Bill, intended to make our data protection laws fit for the digital age. It went through a period of review and revision under your Lordships’ supervision, and it has since been refined further in the other place. It now falls on us to review, and I hope agree, those refinements. I am very grateful to my noble and learned friend Lord Keen and my noble friend Lady Williams for helping me with some of these key areas today. In setting out the reasoning behind the Commons amendments today, I will focus my remarks on the substantive changes made rather than the technical tweaks, of which there are many. This first group of amendments addresses the Commons amendments to Parts 1 and 2. I shall start with the subject of parish councils, a cause previously championed by my noble friend Lord Marlesford, and I declare an interest in that my wife is a parish councillor. Parish and community councils are not exempt from the new law. Nonetheless, by describing parish and community councils as “public authorities”, the Bill gives these councils additional obligations above and beyond those placed on other small organisations, including that they must appoint a data protection officer. We have been working to minimise the impact of this requirement—for example, by exploring options for parish councils to share a data protection officer. However, since the Bill left your Lordships’ House, we have concluded that as parish and community councils process very little personal data and often have few staff and small budgets, the burden that they will face may be disproportionate in some instances. I am therefore pleased to say that Commons Amendments 8, 9, and 10 would take these councils out of the definition of “public authorities” for data protection purposes. Their status in respect of other legislation, including the Freedom of Information Act, is unaffected. Since the introduction of this Bill, it has been brought to our attention by a range of stakeholders from all sides of the political divide that there is concern about how processing for the purpose of democratic engagement should be treated for the purposes of the GDPR. I remember especially the contributions from the noble Lord, Lord Kennedy, and others on this subject, and I have met him to discuss these issues. I am grateful for his time and commitment. As I have said before, the Government believe that there is a strong public interest in political parties and elected representatives and officials being able to engage with the public both inside and outside elections, which may sometimes include the processing of personal data. Having considered the matter further since then, the Government have concluded that it would be prudent to make provision in the Bill, to provide greater clarity to those operating in this space. Helpfully, Clause 8 already provides high-level examples of processing activities which the Government consider could be undertaken on the grounds of public interest. As a consequence of the importance that the Government attach to the matter, Commons Amendment 12 would add, “an activity that supports or promotes democratic engagement”, to that list. This term has been deliberately chosen with the intention of covering a range of activities carried out with a view to encouraging the general public to get involved in the exercise of democracy. That could include activities such as communicating with electors, campaigning activities, supporting candidates and elected representatives, casework, surveying and opinion gathering, and fundraising to support such activities. We will ensure that the Explanatory Notes include such examples to assist the interpretation of what this provision means in practice. However, any processing of personal data in connection with these activities would have to be necessary for the purpose and have a legal basis. That is why we can be clear that firms like Cambridge Analytica will not be able to claim public interest irrespective of whether Amendment 12 is agreed today. The amendment does not seek to create partisan advantage for any one side or to create new exemptions from the data protection legislation; it is intended to provide greater clarity and allow legitimate political activity to continue. The amendment is also technology neutral, given that in a short time we have moved from physical post to email, text, Twitter, Facebook, WhatsApp and Snapchat, and no doubt other means that I do not know about.
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Lord Clement-Jones (LD)Liberal Democrat- Quote
- My Lords, I thank the Minister for that lucid exposition. When one has 282 amendments from the Commons, which I think is fairly unusual after the Lords have worked on a Bill, we find that the Commons have made many improvements, with one or two notable exceptions that no doubt we will come to in later groups. I welcome Amendments 8, 9 and 10 in particular, and Amendment 12. I heard what the Minister said in caveating the intended extent of the amendment. I very much hope that it will have the effect he hopes for. The automated decision-making provisions have to be in line with the GDPR, so it is clearly necessary to amend the Bill in that respect, but I generally welcome this group of amendments.
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Lord Kennedy of Southwark (Lab Co-op)Labour- Quote
- My Lords, I too welcome this group of amendments. First, on Amendments 8, 9 and 10, I recall the debate led by the noble Lord, Lord Marlesford, who is not in his place at the moment. He talked about his experience of the parish council in his area, explaining that a part-time clerk did a couple of days a week and it was impossible. He made his case well and I am happy to support him in it. I am glad to see that the Government have listened. I also believe that many Members on all sides of the House in the other place made similar points. I thank the Government very much for that. I am very pleased with Amendment 12. We, with the Liberal Democrats, raised this issue during a debate in this House. We could not get it all agreed before it left to go to the other place but I had two very positive meetings with Matt Hancock and Margot James. The noble Lord, Lord McNally, also came along to our other meetings and the noble Lord, Lord Hayward, from the Conservative Benches, was also involved. We got to a good place. Nobody from any party thought that this issue should not be properly recognised in legislation. I am very pleased that the Minister and his colleagues have listened to us. The Minister is of course right that technology changes all the time. We have no idea what we will be doing in four or five years’ time. Things move so fast now, so it is good that our legislation is written to take that into account. I was also pleased to hear the Minister say that the Government intend to consult and work with the Parliamentary Parties Panel, which is very important. It is a statutory body, set up in the PPERA 2000, where practitioners from all political parties can come together and talk with both the Electoral Commission and Cabinet Office officials. It really is the body where the people who know what they are talking about can come together. I sat on the body for many years and there was a lot of agreement among party officials about what needs to be done. I am glad that the Government will do it and I am pleased with what has come forward today.
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- Lord Ashton of HydeCrossbench
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- My Lords, I am grateful to the noble Lords, Lord Clement-Jones and Lord Kennedy, for their positive remarks. There are a lot of amendments so, as I said before, I will try to concentrate on the substantive ones. There are a lot of consequential amendments, which make sure that the substantive amendments go through so that the Bill makes sense. I note that, having considered 692 amendments in your Lordships’ House, we are now considering a further 286; 978 amendments later, we should be in a better place.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendment 29.
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)Conservative- Quote
- My Lords, Amendments 29 and 30 relate to Clause 51, which enables data subjects to exercise certain rights through the Information Commissioner. Under Part 3, where a person makes a subject access request, it may be necessary for the police or another competent authority to give a “neither confirm nor deny” response; for example, to avoid tipping off that person that they are under investigation for a criminal offence. Under the Bill as passed by this House, a data subject could exercise their rights under Clause 51 to request that the Commissioner check that the processing of their personal data complied with the provisions in Part 3. Such a request would clearly undermine a “neither confirm nor deny” response, effectively providing a back door for data subjects to find out if personal data was being held on them. To address this, the amendments replace the requirement on the Information Commissioner to check that processing complies with Part 3 with a requirement to check that a restriction imposed by the controller is lawful. Commons Amendments 31 and 32 relate to Clause 53, which enables a controller when in receipt of a manifestly unfounded or excessive subject access request either to charge a reasonable fee before responding to the request or refuse to act on the request. The amendments extend this latitude afforded to a controller to cover requests made by a data subject under Clause 50, which requires a controller to reconsider a decision based solely on automated processing. Although the vast majority of subject access requests made by data subjects are reasonable, the amendments are necessary to ensure that controllers have a robust mechanism in place to deal with any repeated or malicious requests that they receive. I beg to move.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendments 30 to 50.
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- Lord Ashton of HydeCrossbench
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- That this House agrees with the Commons in their Amendments 51 and 52.
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- Lord Ashton of HydeCrossbench
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- My Lords, this group of Commons amendments relates primarily to the enforcement powers available to the Information Commissioner. This is one area where, after the Bill originally left your Lordships’ House, events have influenced the Government’s thinking. The Information Commissioner’s investigation into Cambridge Analytica is unprecedented in both its scale and its complexity. It has, necessarily, pushed the boundaries of what the drafters of the Data Protection Act 1998, and the parliamentarians who scrutinised it, could envisage. While recognising that the Bill already expands and enhances the commissioner’s ability to enforce the requirements of the data protection legislation in such circumstances, the Government undertook to consider whether further provision was desirable in light of the commissioner’s recent experience. Following extensive conversations with the commissioner and others, we concluded that such provision was indeed desirable. The amendments made in the other place would strengthen the commissioner’s ability to enforce the law while ensuring that she operates within a clear and accountable structure. I want to give five examples in particular. First, Commons Amendment 64 would allow the commissioner to require any person who might have knowledge of suspected breaches of the data protection legislation to provide information. Previously, information could be sought only from a data controller or data processor. This could be important where, for example, a former employee had information about the organisation’s processing activities or if an organisation had gone into administration. Secondly, Commons Amendment 70 would allow the commissioner to apply to the court for an order to force compliance where a person failed to comply with a requirement to provide information. Organisations that might previously have been tempted to pay a fine for non-compliance instead of handing over the information will now find themselves at risk of being in contempt of court if they do not comply. Thirdly, Commons Amendments 67 and 87 would allow the commissioner to require controllers to comply with information or enforcement notices within 24 hours in some very urgent cases, rather than the seven days the current law provides for. Amendment 79 would allow the commissioner in certain circumstances to issue an assessment notice that can have immediate effect. The amendments would allow the commissioner to obtain information about a suspected breach or put a stop to high-risk processing activities promptly and effectively. They will also allow her to carry out no-notice inspections without a warrant in certain circumstances. Fourthly, Commons Amendment 81 criminalises the behaviour of any person who seeks to frustrate an information or assessment notice by deliberately destroying, falsifying, blocking or concealing evidence which has been identified as being relevant to the commissioner’s investigation. Finally, we have also taken this opportunity to modernise the commissioner’s powers. Storing files on an office PC is rapidly becoming a thing of the past. Commons Amendment 210 would enable the commissioner to apply for a warrant to access material which can be viewed via computers on the premises but which is actually held elsewhere, such as in the cloud.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, I thank the Minister for his explanation. In many ways, when these clauses came to the House we missed a trick; I do not think we quite understood at the time that the Information Commissioner did not have adequate powers. It was rather a sorry sight to see the Information Commissioner hanging around for several days outside Cambridge Analytica waiting to be allowed to enter and inspect, so these amendments are extremely welcome—as, of course, is the new criminal offence the Minister mentioned. I will say one thing: it is not entirely clear whether these powers are on all fours with, for instance, the Competitions and Markets Authority, Ofcom, Ofgem, and so on, in terms of the ability to make a dawn raid. I have looked at it but it is not entirely clear that that is possible. Clearly, in the current circumstances, the misuse of data is an extremely important aspect. It would be very interesting to hear from the Minister whether at the end of the day these are modelled on the other regulators. Does the Information Commissioner have very similar powers, and is a dawn raid available to her? Given that there are safeguards in the Bill—a warrant from the High Court and so on—that would be desirable. We have discovered that it is important for the Information Commissioner, as a result of the Cambridge Analytica scandal, to have all the powers necessary.
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Lord Stevenson of Balmacara (Lab)Labour- Quote
- My Lords, I associate myself with what has just been said by the noble Lord, Lord Clement-Jones, and I agree with the Minister that this is a welcome step forward. I have three minor points to put to him and I shall ask a question about the powers at the end. He said several times that he had had conversations with and was in agreement with the ICO about the powers that were taken. Following up on what the noble Lord, Lord Clement-Jones, said, has the ICO agreed that these powers are what she asked for and will achieve what she aims to do in cases such as that of Cambridge Analytica? Secondly, what are they modelled on? I have had the benefit of a conversation with the Bill team and the Minister on this and I think the answer to the question of whether they are modelled on the Competition and Markets Authority’s powers is that they are coming from slightly different directions. It is not necessary that the powers should be exactly the same, but I think the answer is that they were broadly what was envisaged for the CMA when it was set up and therefore appropriate for the powers required by the ICO. Can the Minister confirm that is the case? My third question is one that we have explored at length in Committee and on Report. Given these new duties and responsibilities, which are substantial and will have to be exercised with great care but will add a burden to its existing work—as was laid out in the Bill when we saw it in this House some time ago—will the resources be available to the ICO to carry out that work? If not, what will the Government do about that? This bears particularly on the question of staff and staff capacity because, as the Minister says, we are talking about the cutting edge of technology. My final point is that we are legislating in haste. There is no reason why we should be suspicious of that but it was done very quickly and there was not as much scrutiny as one would have wished, in either this House or the other place. I was not able to find this in the Bill itself, but can the Minister confirm whether, should it turn out that these powers are not as well drafted or well expressed as they could be, he has the powers to go back and amend them through the appropriate procedures in due course, should that be necessary?
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Baroness Cavendish of Little Venice (Non-Afl)Crossbench- Quote
- My Lords, I have one question that builds on the point made by the noble Lord, Lord Stevenson. I note that the Minister said that organisations that refuse to hand over information will be in contempt of court. Can he confirm whether there will be a public interest defence built into these provisions?
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Lord Pannick (CB)Crossbench- Quote
- Building on the point about the limited time for scrutiny here, can the Minister also explain whether there is a protection for the sources of journalism, with no obligation to disclose sources? Is there a protection for legal professional privilege and matters of that sort?
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- Lord Ashton of HydeCrossbench
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- I am grateful for the contributions made by noble Lords. The first thing to acknowledge is that these amendments were made at a reasonably late stage in the Bill but not a very late stage, in the sense that it was in the second House. We considered the Bill first and the second House amended the Information Commissioner’s powers, so we are now looking at them again. However, I can confirm to the noble Lord, Lord Stevenson, that the Information Commissioner was involved in these powers. That is not to say that, in the course of those discussions, she did not put up some powers that she might like to have but, in discussion with the Government, we settled on some powers that she was content with. I can confirm that she is content with this suite of powers; in fact, she has written to the Minister for Digital confirming as such. The noble Lord, Lord Clement-Jones, mentioned a dawn raid and asked whether we can do that and, further, whether these powers are on all fours with the Competition and Markets Authority and Ofcom. By and large the powers are on all fours but, as the noble Lord, Lord Stevenson, said, they are not exactly the same. They were modelled on them but they are slightly different, given the different roles and functions that regulators have. As for a dawn raid, the Information Commissioner has the power to ask for a warrant to be issued without notice if the judge is satisfied that giving the controller advance notice would not be appropriate. As I say, we looked closely at the powers of the CMA and Ofcom and modelled them as closely as possible. The noble Lord, Lord Pannick, asked about protection for journalists’ sources. I can confirm that, yes, the new ICO powers continue to respect the need to protect journalistic sources and legal professional privilege. The noble Lord, Lord Stevenson, also talked about the Information Commissioner’s resources. As he knows, we have increased the fees and made a commitment in the past that we will make sure that the Information Commissioner has the resources available to do her job properly. We understand the issues that that involves. We need the Information Commissioner to do a proper job and to be able to do so, not least because of the Brexit negotiations and the data adequacy requirements that we will want to continue for electronic commerce. I think I have dealt with the points raised and, on that basis, I thank noble Lords for their support for these powers.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendment 53.
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- Lord Ashton of HydeCrossbench
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- My Lords, Commons Amendments 53 and 207 would remove from the Bill matters inserted by the noble Lord, Lord Mitchell, with the intention of protecting value in certain personal data held by the state. I am grateful to the noble Lord for again taking the time to come to see me to discuss further the intention of his original amendments to the Bill. He has been very helpful and we are in full agreement that this is an important matter. Our meeting also gave me the opportunity to explain the Government’s plans to address the issues that he raised going forward. In this new digital information age, big data is changing the world we live in. One of the key reasons for updating our data protection laws was to ensure that the law is fit for this new age, where an ever increasing amount of personal data is being processed. We have remained conscious throughout the drafting of the Bill of the need to protect individuals’ data while also ensuring that the new law does not stifle innovation in the way that we use personal data. The Government recognise that novel ways of processing personal data could bring great technological, economic and societal benefits to the UK. Longitudinal health and care data, in particular, has the power to fundamentally transform our lives in truly positive ways. The Government are taking a considered approach to the policy in this area in order to ensure that we get this right and fully realise the potential benefits of using health data, while ensuring that individual privacy is respected. We want to examine how we can maximise the value of the data for the benefit of the NHS and those who use and pay for it. While we are entirely sympathetic to the aim of the noble Lord’s amendments, Commons Amendments 53 and 207 would reverse them because we firmly believe they do not help us achieve the outcome we are all seeking. A statutory code of practice risks stifling innovation, placing public authorities in a straitjacket. In an area where the thinking is still developing and the rate of technological advancement is increasing, flexibility is essential. Moreover, maintaining a register of “data of national significance” is likely to raise a number of security concerns. The NHS has been the victim of cyberattacks and we do not want to produce a road map to assist those who want to harm us. The Information Commissioner’s Office has also stated, quite rightly, “that even establishing and maintaining a register would still require the Commissioner to make decisions in an area where she is not best placed to advise”, because her core function is to protect information rights. While not developing a code and a register, the Government are none the less taking active steps to ensure we grip the issue that the noble Lord raises. We are working to connect to make the most of the distributed data that exists in the health service, identifying three to five local exemplars of integrated digital health and care records and using these to develop digital innovation hubs to support the use of data for research purposes, including in partnership with industry. The Department of Health and Social Care is working to explore how to maximise the benefits of health and care data for patients and taxpayers. This includes exploring the different approaches taken by a range of bodies and lessons to be learned from local experiences of working with the private sector. It will look specifically at how best to capture value from products developed using NHS data. Although Commons Amendments 53 and 207 may appear disappointing to the noble Lord, I can reassure the House that they are made with the best intentions, and that the Government are making every effort to address the concern in the right way. I beg to move. Amendment 53A (as an amendment to the Motion on Amendment 53)
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Lord MitchellLabour- Quote
- At end insert “, and do propose Amendment 53B instead of the words left out of the Bill by this Amendment and by Amendment 207”.
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- Lord Mitchell (CB)Labour
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- My Lords, the words in the Bill and the words on the screens above us summarise my position. This is the Data Protection Bill, and my amendment is solely about protecting data—our data; our data of national significance; and in particular, our data owned by our National Health Service. Who do I wish to protect it from? From the predatory big tech companies, which see a huge financial opportunity in developing this NHS data and creating data algorithms; they can then sell those for billions of pounds, leaving us with precious little in return. The very same companies, by the way, pay minuscule corporation tax in our country and, indeed, it is the same in their own country. They are clever, immensely well funded, and very focused—they run rings around the NHS. I feel that I have to prevent this happening. I seek to set in motion a process which will keep the value of this data for the benefit of our NHS so that it can use these proceeds either to plug its growing budget deficit or fund significant critical medical research—or, indeed, both. If I let my imagination go even further, I would like to see the setting up of a sovereign health fund into which these proceeds could be channelled and administered, in the same way as the Norwegians set up a sovereign wealth fund. What they have done with the proceeds of their North Sea oil we can now do with our data bonanza. As many have said throughout the Bill’s proceedings, data is the new oil—and we have struck a gusher. If I may be permitted to extend the analogy even further—like oil in the ground, this data is crude; it needs to be refined. Huge investment will need to be made to create a data refinery which will be able to synthesise the millions of records that will produce the algorithms. It should be seen as a national co-production, perhaps with private and public partnership. At Second Reading, I stated that it was my judgment that the market value of NHS longitudinal data could be worth billions of pounds. In all honesty, as I progressed, I fully expected someone to disagree with me and tell me that I was wrong. But no such person has come forward. All the experts seem to confirm my position. I made the point that the longitudinal data owned by the NHS was unique, with tens of millions of patient records going back to 1948 and even earlier. No other country has access to such a treasure trove. Even better, our population is diverse, with the records of people whose family members come from all corners of the globe. We have a perfect dataset. The reason big tech companies are so interested in this data is that with the combination of sophisticated software, ultra-fast data processing, artificial intelligence and machine learning capabilities, they are able to produce algorithms which are tremendously powerful. These can be used to predict organ abnormalities to the extent that clinicians can save time and money, and ultimately people’s lives. And who can disagree with that? It is wonderful for all mankind. By way of an example, DeepMind, which is based in London—it is a subsidiary of Alphabet, which owns Google—has been working with the Royal Free in anticipating acute kidney injury. Like knights on white chargers, DeepMind has financed the digitisation of millions of patients’ data and produced algorithms that are already making a major contribution to improving difficult-to-diagnose conditions. It has cost the Royal Free next to nothing and, unsurprisingly, its staff are over the moon. What they do not realise is that the algorithms produced by DeepMind have international value and will be monetised all over the world for the benefit of Google, not of our NHS. DeepMind and companies like it are swarming all over the NHS. For my part, to put it bluntly, I want to stop them gathering the benefits of our data on the cheap. My new amendment would water down previous amendments that your Lordships agreed to on Report—an amendment that the Commons in its infinite wisdom decided to annul. Frankly, I am still at a loss to understand why a Conservative Government would not want to maximise this goldmine; I always thought they were the party of business. I have, however, taken on board the points made by the Information Commissioner. She said the amendments went beyond her powers. I have reduced them to a minimum. In substitution I have inserted a requirement for the Secretary of State to require the National Audit Office to prepare a code of practice for data controllers, for guidance on how to obtain best value in relation to the commercial exploitation of personal data of national significance, and for the NAO to report annually to Parliament on the commercial explication of the very same data. The Minister and his team have listened to what I have had to say and I am very grateful for his kindness and attentiveness. Our last meeting was very helpful, and I look forward to him confirming the points that were made. I beg to move.
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Lord Freyberg (CB)Crossbench- Quote
- My Lords, I support Amendment 53A, moved by the noble Lord, Lord Mitchell. In doing so, I wish to make two specific points that follow on from his speech today. First, the amendment crucially recognises the importance of measuring what we as a nation are doing with data of significance before we take important, industrially strategic decisions on how we make the most of this vital national resource. The noble Lord and others have made the analogy of data as the new oil. That analogy works particularly well for personal data as, like oil, it is potentially as toxic as it is valuable, and it must be carefully handled and not allowed to be released into the environment without due care. If we are to best manage, protect and distil it, we must first learn where and how it is being moved, used and commercialised. Can we as a nation easily answer the question that we are asking of Facebook or the former Cambridge Analytica: how much data are we commercialising at home and abroad, and to whom? If not, why not? Progressive and young, emerging nations are reviewing how they use their national data for national advantage, and we must make a concerted effort to do the same. My second point is how the amendment therefore recognises that this measurement should be done centrally, not burdening already stretched government departments with developing their own approaches. While these departments must remain involved to provide domain insight into certain data types—for example, health and social care—the National Audit Office or other bodies should take charge of a cross-departmental process for measuring and tracking these flows of significant and valuable data. In this way we should be able to develop a consistent, coherent view of how we are handling our data reserves, which will give us the best possible evidence upon which to base our decisions on a secure approach to maximising their impact for our future national good. I therefore hope the Minister will be able to shed some light today on how this process is being thought through.
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Baroness Jones of Moulsecoomb (GP)Green Party- Quote
- My Lords, I support Amendments 53A and 53B, tabled by the noble Lord, Lord Mitchell. I must express my general frustration at the Bill. There is so much information, so much data of national significance that, it is clear, will be abused by the Government, whether or not they know that they are doing so. The Windrush scandal showed just how badly the Home Office gets things wrong, and the Bill’s provisions allow the sharing of people’s data which would further the “hostile environment” policy. I am very disappointed that the Government have not tabled amendments to curtail the broad powers in the Bill that will allow for such abuse. There are so many cases of people who are victims of serious crime—of rape, violence and people trafficking—who are being reported by the police to the Home Office and then being arrested, detained and deported. At least 27 police forces have admitted that they do this. Ministers cannot possibly claim to be learning from those instances, just as they appear not to have learned from Windrush, while they continue to include such cruel and intrusive powers in the Bill. The fact that the Government can get things so horribly wrong is why the amendment should be included. We have heard that data is more valuable than oil. It is more valuable than oil or gold. It is the boom industry of our times, and the temptation for government to allow its exploitation by the commercial sector—the predatory big tech organisations to which the noble Lord, Lord Mitchell, referred—will be overwhelming, especially in this age of austerity when money appears to be so short. This is not just an issue of exploitation in a negative sense: there are lots of opportunities for government data to be used to empower communities. We can do things such as monitor air pollution and hold the Government to account by using this data. I am excited by those opportunities, but they need proper regulatory oversight to ensure that data is used for good. The control and processing of nationally important data must be properly overseen by the Information Commissioner and the National Audit Office. The Government recognised this in the Bill as drafted, and I do not understand why that has been removed—perhaps the Minister could explain. I really hope that the Minister will support the amendments, but I rather suspect he will not.
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- Lord Clement-Jones (LD)Liberal Democrat
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- My Lords, on these Benches, we are very sympathetic to Amendments 53A and 53B. Like the noble Lord, Lord Mitchell, we find it difficult to understand why it has been impossible to come to some sort of agreement. I hear what the Minister said: that he is sympathetic, but not so sympathetic that he agrees with the amendments. This disagreement about whether a statutory code, guidance or whatever is the right way forward seems to be dancing on the head of a pin. I pray in aid the intervening report of the AI Select Committee on precisely this matter, which supports the contentions of the noble Lord, Lord Mitchell. In our report, we stated: “Increasingly, public sector data has value. It is important that public organisations are aware of the commercial potential of such data. We recommend that the Information Commissioner’s Office work closely with the Centre for Data Ethics and Innovation in the establishment of data trusts, and help to prepare advice and guidance for data controllers in the public sector to enable them to estimate the value of the data they hold, in order to make best use of it and negotiate fair and evidence-based agreements with private-sector partners”. That seems fair and square along the lines proposed by the noble Lord, Lord Mitchell. In the course of our inquiry, we also looked carefully at the sorts of arrangements made by DeepMind—not only the benefits, which he very fairly outlined, but the issues with how sharing that data was organised, which of course led to an investigation by the Information Commissioner’s Office. Of course, NHS data is particularly important in this context. In our report, we stated: “The data held by the NHS could be considered a unique source of value for the nation. It should not be shared lightly, but when it is, it should be done in a manner which allows for that value to be recouped”. So, fair and square, we are with the noble Lord, Lord Mitchell. It would be somewhat ironic if the Secretary of State, in his response to our Select Committee in three or four weeks, said, “Yes, we agree: there should be something along these lines”, but we had missed the opportunity in this Bill.
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- Lord Stevenson of BalmacaraLabour
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- My Lords, we supported the amendments that my noble friend Lord Mitchell tabled in Committee and on Report, and we support him in his journey through this process. The issue is probably complicated by the fact that, had this Bill been delayed by a matter of months from now, we would probably find that this issue was bobbing up all over our public realm, where people are beginning to realise the value of the assets that they hold. To the extent of being a first mover, I think that my noble friend has probably suffered from that, but I hope that the Minister will show some sympathy and support for him.
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- Lord Ashton of HydeCrossbench
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- My Lords, I feel a lot of sympathy for the noble Lord, Lord Mitchell, and commend what he is trying to do. I think that I shall be able to reassure the noble Lord, Lord Clement-Jones, that we are not as far apart as he might think. The noble Lord, Lord Mitchell, raised with great enthusiasm the point that we should ensure as a country that we use our rich resources wisely. We share his excitement about the huge potential of big data to improve health and care. We acknowledge that, if we leverage these data to their full potential, that will have huge positive impact in improving care, giving people greater control, enabling the system to plan better and target support and treatments to those who can benefit, and it will transform our already world-leading life sciences industry. Nevertheless, in the judgment not just of the DCMS but also the Department of Health and Social Care—I know that the noble Lord has been speaking to my noble friend Lord O’Shaughnessy, on this subject—Amendment 53B risks undermining the work already being done in this space. NHS England, the Department of Health and Social Care and the Office for Life Sciences are already undertaking a programme of work that looks seriously at the public benefits that can be derived from NHS data. They are committed to working with representatives of the public and industry to explore how to maximise the benefits of health and care data for patients and taxpayers. In doing so, it is vital that service users and patients are involved every step of the way. They will accept and support the use of their health data only if they understand how and why their information is being used and how everyone will benefit. We must take the public with us on this journey, rather than imposing a code now. My noble friend Lord O’Shaughnessy and his ministerial colleagues at the Department of Health and Social Care have made a written commitment to keeping the noble Lord, Lord Mitchell, involved in future discussions about this work. He will make a valuable contribution with his expertise in this matter, ensuring that we maximise the value in these datasets. I want to answer straightaway and head-on the point about why the Government should not consider that we extract the full value of the taxpayers’ data. Of course, it is absolutely right that public sector bodies should be aware of the value of the data that they hold, but that value can be extracted in many ways, not solely through monetary means. For example, sharing health data with other companies that analyse that data may lead to a deeper understanding of diseases and potentially even to new cures. That is why we want to take some time to explore this important issue fully and try to find the most appropriate solution, should one be needed, rather than tying ourselves to one approach now. That was raised in the other place when this issue was discussed by amendments from people who are very concerned about how health data are being treated. As I said before, we have to be very careful, particularly when talking about health data, how we use datasets when people have given their information on the basis that it is anonymous and is extremely sensitive. The noble Lord, Lord Freyberg, rightly broadened the issue a bit from just health data. He asked how much data we are commercialising, at home and abroad, and to whom. He suggested that bodies other than central government should take charge of a process for measuring and tracking these flows of significant data. The noble Lord, Lord Clement-Jones, mentioned the Centre for Data Ethics and Innovation. A body exactly such as that can, in this very fast-moving area, consider the balance between the need to protect an individual’s anonymity and the sensitivity of their data, and that data’s monetary value and use for things such as curing disease. The noble Baroness, Lady Jones, made some interesting remarks about how information would be abused by the Government and the broad powers we have taken in the Bill. I remind her that the GDPR, which takes effect directly on 25 May, is exactly about protecting data subjects’ rights. For example, it allows data subjects the rights of rectification and erasure. The point about subject access rights is to allow individuals to have more protection than they currently do. The Bill brings some of those rights and extends them into areas which are not even covered by EU competence. I do not agree with the noble Baroness that we are abusing the powers.
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Lord Framlingham (Con)Conservative- Quote
- I apologise for interrupting the Minister. I have not been in the House long, so have not heard the whole debate, but I was listening to a programme about this subject at lunchtime today. The impression was clearly given that lives were being put at risk because of oversensitivity about the sharing of data. Perhaps the Minister will get his advisers to check what was said on that programme and see how much sense it made.
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- Lord Ashton of HydeCrossbench
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- I will find out what was said. We should deal with what the GDPR calls special categories of data very sensitively. We should take data on health, sexual orientation, ethnicity and things like that very seriously. That is what the GDPR does and we will continue to do it under the Bill. Finally, I return to the Commons amendments. I am afraid we still cannot support Amendments 53A and 53B as, at the moment, we believe that they are fundamentally the wrong solution. However, I hope that the productive discussions, to which the noble Lord, Lord Mitchell, referred, along with what I have said today, have convinced the noble Lord that our vision is aligned and that he finds sufficient reassurance in these words, and the written assurances that he has had from my noble friend Lord O’Shaughnessy, to be able to withdraw his amendment.
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- Lord MitchellLabour
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- I thank the noble Lord for his very helpful comments. I also thank my noble friend Lord Freyberg, who has been with me all the way on this and given me huge support, and the noble Baroness, Lady Jones, for her comments. On the Front Benches, the noble Lord, Lord Clement-Jones, has always been a supporter and, at this particular point, the noble Lord, Lord Stevenson, has guided me through the intricacies of ping-pong, which I was not aware of. I have heard what the Minister has said, and have received a letter from the noble Lord, Lord O’Shaughnessy. It is the end of the football season. We are now in extra time; we are still at a draw and could be facing penalty shoot-outs, but I am going to decline that. I beg leave to withdraw the amendment.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendment 54.
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Lord Keen of ElieConservative- Quote
- That this House do agree with the Commons in their Amendment 55.
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- The Advocate-General for Scotland (Lord Keen of Elie) (Con)Conservative
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- My Lords, the amendments in this group concern the regulation of the press and the processing of personal data for the purposes of journalism. First I will address Clauses 142, 168 and 169, which were added to the Bill by this House without the support of the Government, and which the Commons amendments now seek to remove. These clauses, and the issues they pertain to, have been subject to a great deal of passionate debate in both this place and the other. Since we previously discussed the Bill in this House, the Government have also published their response to the consultation on Section 40 and the future of the Leveson inquiry, to which these amendments relate, and have outlined their position in detail on these matters. The Bill is about data protection and, as previously observed by the noble Lord, Lord Stevenson, during our last debate, it is therefore not the right forum for a debate on press regulation in the future. I hope to demonstrate that, even if it were, these clauses are simply not the solution to the problems faced by the press today to ensure that it is free, fair and sustainable. Commons Amendments 106, 107 and 141 would remove Clauses 168 and 169, which were added to the Bill by this House. As they stand, these clauses would essentially introduce the provisions contained in Sections 40 and 42 of the Crime and Courts Act 2013, although they would apply only to breaches of data protection law. They would mean that any publication not regulated by Impress would be at risk of having to pay the legal costs for any complaint against them, whether they won or lost. As I have already said, since we previously discussed the Bill in this House, the Government have published their response to the consultation on the future of Section 40. By way of update, then, I can tell the House that some 79% of direct responses favoured full repeal of Section 40, compared to just 7% which favoured full commencement. Many respondents cited concerns about the “chilling effect” that Section 40 would have on the freedom of the press. Andrew Norfolk, who uncovered the Rotherham child abuse scandal, has said that Section 40 would have made it “near impossible” to do his job. These clauses would also impose further financial burdens on already struggling local and national publishers, with 200 local newspapers having closed since 2005. I recognise, however, that the primary motivation behind this House originally inserting these clauses was to ensure that victims of press intrusion would have access to adequate redress. I can reassure your Lordships that enormous progress has been made on this front—some of it since the Bill left this House—making these cost provisions no longer necessary or proportionate. In 2014, the old Press Complaints Commission was replaced by the Independent Press Standards Organisation. IPSO follows many of the principles set out in Sir Brian’s report and is fundamentally different to the PCC. It has a legally binding contract with the publications it regulates, which means that, if a publication fails to comply with IPSO’s orders, such as publishing a front page correction, it can face court action. Earlier this month, IPSO announced that it would create a compulsory low-cost arbitration scheme under which claims can be made for as little as £50, and all the major national newspapers that are IPSO members have signed up to it. This means that someone who has been wronged by a newspaper can, for the first time, ask for arbitration of their claim—and the newspaper cannot refuse. With the introduction of this scheme, IPSO has met one of the most important recommendations of the Leveson report and has ensured that ordinary people have a fair legal remedy that is quick and inexpensive. As Opposition noble Lords have previously acknowledged, once IPSO has met the majority of the standards for recognition established by the Press Recognition Panel, it is sensible to look afresh at this complex set of interrelated measures of inducements and penalties. Now is that time.
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Baroness Hollins (CB)Crossbench- Quote
- My Lords, I rise to speak to Amendment 62A, which states: “as an amendment to the Motion that this House do agree with the Commons in their Amendment 62, at end insert ‘, and do propose Amendment 62B instead of the words so left out of the Bill’”. Let me explain why I have tabled this amendment after it was considered in the other place last week and narrowly defeated. First, the need for completing this inquiry continues to grow. The illegal conduct which led to part 1 of Leveson is now known to be far more extensive and to go beyond phone hacking. More revelations emerge every week. It is an inquiry into criminality, corruption and abuse; in any other industry the press would be demanding an inquiry, and yet their opposition is uniform. We now know that the Sunday Times employed a blagger for 15 years to unlawfully access the phone accounts, utility bills and even bank accounts of ordinary people and government Ministers. The blagger, who has become a whistleblower, also said that they organised the theft of rubbish from the houses of Cabinet Ministers, published the stories they uncovered and then blamed it on a Civil Service leak. My noble friend Lord Turnbull was, it seems, moved to call in the Security Service to investigate the Cabinet Office mole, who never actually existed. This involved the personal details of the noble Lords, Lord Prescott and Lord Hague, and the noble and learned Lord, Lord Falconer, and they are among hundreds of victims. This was concealed from part 1 of the Leveson inquiry by the same executives now campaigning to stop part 2. Noble Lords may have heard of similar behaviour by other newspapers. Secondly, firm promises were made to victims of press abuse. Thirdly, I believe that the arguments made against completion of the inquiry were misleading, and that the other place should reconsider the matter. Finally, I have made some adjustments to the amendment which I believe will help the other place to reconsider it, if we are to pass it today. Let me explain these adjustments, made after listening carefully to the debate in the other place. The first addresses the concerns of the Democratic Unionist Party that part 1 of the inquiry could have examined the situation in Northern Ireland more closely. Just before last week’s debate, the DUP was made a last-minute offer by the Government: a non-statutory review with no powers of evidence or witnesses into press conduct in four years. Having considered the matter, I am proposing a change that addresses the party’s proper and reasonable concerns and puts it before Parliament. Let me clarify how my amendment relates to that offer by the Culture Secretary. Last Wednesday, in response to a question from the DUP Member for North Antrim, the right honourable Ian Paisley, the Culture Secretary said that the Government plan to have, “a named person review the standards of the press in Northern Ireland”.—[Official Report, Commons, 9/5/18; col. 712.] This interchange came just before the Government, backed by the DUP, narrowly defeated the amendment that would have required the second stage of the Leveson public inquiry into media ethics to be completed. The Culture Secretary’s surprise announcement was welcomed by Mr Paisley who described it—and this is important—as a “Leveson for Northern Ireland”. The National Union of Journalists called for absolute clarity on the scope and nature of any such review. The Department for Digital, Culture, Media and Sport later explained that there is no review planned for Northern Ireland into press standards and that the Cairncross review of quality journalism is in fact UK-wide, specifically relates to examining media compliance with new data protection regulations and is to be undertaken by the Information Commissioner’s Office. The Culture Secretary referred to having a named person for Northern Ireland, but there will also be a named person appointed for Scotland and separately for England and Wales, and they will each feed into the overall review. The other adjustment that I have made is specifically to exclude the local press from the scope of the inquiry. That will address the concerns of those who have argued, rightly or wrongly, that a public inquiry will somehow impose a burden on local newspapers. I will not rehearse the arguments for completing this inquiry again—we know them well—and the case for the amendment makes itself. It is an amendment to complete a public inquiry, repeatedly promised, to investigate allegations of illegality, corruption and improper conduct among newspaper corporations, the police and other media organisations responsible for holding personal data. As we all know, contrary to claims made by its opponents, these issues were excluded from part 1 and have never been properly investigated. We are also familiar with the arguments against. These are, as I understand it, that this inquiry would be too expensive, would hurt local publications, would be a chill on free speech and would not be forward-looking. The honourable Member for North East Somerset in the other place said that the promises to victims of a previous Prime Minister can be ignored. None of those arguments has any validity. Would any of us accept an argument that investigations into mass criminality or years of concealment in, say, social work or the building trade should be abandoned because they were too expensive? Exposing the full scale of corruption in the police and press is just as vital as are recommendations to ensure that they are never repeated. Abandoning a public inquiry will damage the credibility of other inquiries. What about the Grenfell Tower inquiry? As for the local press, they were never the main subject of part 2 of the Leveson inquiry and under this amendment they are excluded entirely. It states: “In setting the terms of reference for the inquiry the Secretary of State must … include exemptions or limitations designed to exclude local and regional publishers from the scope of the inquiry”. It could not be clearer. It is also absurd to suggest that an inquiry designed to be transparent, to expose the truth and make fair and proportionate recommendations in the public interest could possibly interfere with free speech. Finally, the inquiry is specifically designed to look forward as well as back by exposing the full extent of wrongdoing by examining the reforms that have actually been implemented since part 1. Part 2 will be able to make practical and proportionate recommendations for the next steps. Both parts of the original inquiry were welcomed with huge cross-party support from both Houses. The relevant Select Committee in the other place, chaired by a Conservative, recommended unanimously that Leveson part 2 should proceed. The chair of the inquiry, Sir Brian Leveson, has recommended that it should proceed. I circulated his letter to some noble Lords today as a reminder. Many respected people have written to noble Lords today. I understand that Sir Harold Evans, the former editor of the Sunday Times, believes that part 2 is needed to restore integrity and public confidence in the press. Some 126 academics from 35 institutions, including former journalists and those teaching the journalists of the future, have also written, as has the mother of a victim following the Manchester Arena bombing, where press behaviour was, quite frankly, appalling. To cancel this amendment is an act of gross censorship. The promises to the victims of press abuse still hold. This Government are breaking those promises. What is the role of this House if not to ensure that the Government act with honour and integrity and are held to their word?
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Earl Attlee (Con)Conservative- Quote
- My Lords, it has been a long and hard struggle to attempt to convince the Government to meet their commitments to complete the Leveson reforms and, most importantly, complete part 2 of the Leveson inquiry. During earlier debates, I claimed not to know any celebrities who were not politicians. I apologise to the House because I should have inserted the caveat, “other than a world-famous international yachtsman”. I agree with my noble and learned friend the Minister that we should accept the Commons rejection of my Amendment 147, which sought in effect to commence Section 40 of the Crime and Courts Act 2013 in respect of data protection. I shall try to explain why in a moment, but it has nothing to do with the merits. First, I would like unreservedly to support the noble Baroness, Lady Hollins, and her new amendment which seeks to commence the Leveson 2 inquiry. I agree with everything she has said, and I hope that she will seek the opinion of the House. If she does, I will be supporting her in the Lobby. I am bound to say that the print media have consistently misrepresented the issues in question. For instance, it has been said that the noble Baroness and I hijacked this Bill to pursue our amendments. It is actually fair comment, but as any noble Lord who has been in opposition knows, it is a perfectly proper standard parliamentary procedure, and I am sure that my noble friend the Government Chief Whip has himself used this technique many times when he was in opposition. It was also alleged that we cynically excluded politicians from the scope of the inquiry. This is simply not true. We did try to table an amendment that sought much wider terms of reference for the inquiry. Quite properly, the clerks advised us that we needed to restrict the scope of the amendment to data protection issues. It would, of course, be open to the Government to set wider terms to include politicians, and if a Conservative politician is alleged to have done something wrong, I am happy to see them explain themselves to the inquiry. I turn to my amendments. When my noble and learned friend comes to reply, while he has explained the stick component of Section 40, will he remind the House of how its carrot component works, because I do not think that he mentioned it? Although the Commons never actually divided on my amendments, they were fully debated and it is clear to me that there is no realistic prospect of the Commons changing their mind. There is no Salisbury problem with the amendment tabled by the noble Baroness, Lady Hollins, because she genuinely believes that if we send it to the Commons, we may get a different answer. However, I would suggest that this will probably be the last roll of the dice. I feel bound to comment on the exceptionally effective campaign run, presumably, by the News Media Association. Whoever is running it knows what they are doing, although we have all been playing hardball. However, what is disturbing is that I have been silenced and skilfully suppressed nearly everywhere except in your Lordships’ Chamber, and therefore I am extremely grateful to the BBC programme, “The Big Questions”, for allowing me to contribute to yesterday’s debate. It is not clear to me why the Convenor of the Cross Bench Peers politely declined my offer to address the Peers on my amendment but nevertheless later allowed Sir Alan Moses, the chairman of IPSO, to address the Cross-Bench Peers. In the days immediately after our votes on Report, despite one national newspaper devoting three whole pages to criticising some noble Lords, my name was mentioned only once in any national newspaper, and I suspect that that was an accident. It is good that the press is supposed to be biased, opinionated and partisan. Despite trying very hard, I was able to secure only two meetings to discuss the Leveson amendments with two Conservative MPs, and they had very good reasons to do so but nevertheless, quite understandably, they voted with the Government. Even the Leader of your Lordships’ House declined to have a meeting with me in the week preceding the vote in the Commons to discuss these problems—so much for free speech. The very same honourable Members who declined to meet me had helped to produce a majority of 530 to 13 in the vote to insert new Section 40 in the Crime and Courts Act 2013. What is going on? I welcome the Government’s Cairncross review into the sustainability of the press. This is one of the Government’s arguments for not implementing Leveson. When I talked to my local editor, he was not worried about regulation; his problem was sustainability. Recently, in accordance with the principal VAT directive, the appropriate tribunal decided that online publications would attract VAT at the standard rate. This is a tax on information and knowledge, when books and publications are exempt. The EU withdrawal Bill has enough difficulties without me raising another one, and I do not want to tie the Minister’s hands, but can my noble and learned friend write to me—and perhaps to my noble friend Lord Black—to assure us that the appropriate officials are aware of the risk of negotiating away our freedom to zero-rate online publications post Brexit? Much of the debate on Section 40 has centred on state regulation of the press. At the moment, unfortunately, we have covert state regulation because anyone in government, particularly sources close to No. 10, can suggest to the media that Ministers are reconsidering commencing Section 40. This is a completely unacceptable gun, held to the press’s head, which must be deactivated at the earliest possible moment. Worse still, it could inadvertently lead to the press self-censoring in the case of a story that might, in any case, make for difficult ethical and legal decisions for the editor concerned. Can the Minister indicate when this very short Section 40 repeal Bill will be presented to Parliament? If we are not to implement the Leveson press reforms, we need to commence part 2 of the inquiry to find out what has gone wrong in the past, ensure that it is not continuing and prevent it from recurring. As one of our briefings today put it, the past is a prologue for the future.
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- Lord PannickCrossbench
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- My Lords, I declare an interest as one of the few counsel who has acted in privacy cases for both the Daily Mail and Mr Max Mosley. I cannot support the amendment in the name of the noble Baroness, Lady Hollins. I remind your Lordships of what the Conservative Party manifesto said before the election last year: “Given the comprehensive nature of the first stage of the Leveson Inquiry and given the lengthy investigations by the police and Crown Prosecution Service into alleged wrongdoing, we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press”. As your Lordships know, the Commons held a lengthy debate on this subject last Wednesday and voted not to institute a Leveson part 2. Your Lordships’ House has heard the pro and con arguments on many occasions. I want simply to emphasise two points. Amendment 109 introduces extensive new powers on the Information Commissioner in relation to the press and, as the Minister has already indicated, it requires the commissioner to conduct a review of the press in the short term. Also, over the years, there have been not just police, and other, inquiries: a large number of civil actions—cases against the press—have been brought by phone-hacking victims. Those victims have not gone without remedy; they have received very substantial financial compensation, and rightly so. It is true that some of the claimants were celebrities, but many were not; they were victims of phone hacking because, for example, they were related to television actors or spent the night with a footballer. Reprehensibly, the press hacked their phones. They brought legal actions; the lawyers acted on a conditional fee basis. After the event, insurance ensured that there was no financial risk to the claimant, so it is simply not the case that victims of phone hacking lack, and have lacked, legal remedy. Newspapers have rightly been ordered to pay substantial sums by way of compensation. It is simply unrealistic to think, in the light of the criminal prosecutions and civil liability, that the message has not got across. I respect, of course, the views of the noble Baroness, Lady Hollins, the noble Earl, Lord Attlee, and the others who support this amendment, but it really is time for this House to give way to the views of the Commons on this matter.
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Lord Cormack (Con)Conservative- Quote
- My Lords, I support what the noble Lord, Lord Pannick, has just said. I also have the utmost respect for the noble Baroness, Lady Hollins. She has shown that she is a doughty campaigner; she passionately believes in her cause, and she has every right so to do. I want to dwell on just one aspect: the relationship between the two Houses of Parliament. I hope that I have shown that I am not afraid to vote against the government line; I have done so frequently recently and I do not regret it, because I have done what I thought was right. When we take such a line, we ask the other place to think again. However much the noble Baroness, Lady Hollins, may regret it, the other place has thought again. This is not the moment to introduce new amendments—to protract the ping-pong by bringing in a new ball. With proper deference to the elected House, we have to accept the line that it has taken. There are of course other arguments that one could deploy—it has been said that this is not the right Bill and all the rest of it—but the matter has gone to the other place; it has made its decision. We would be overemphasising our constitutional legitimacy if we sought to reject what it has said.
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Lord Prescott (Lab)Labour- Quote
- My Lords—
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Lord Lipsey (Non-Afl)Labour- Quote
- My Lords, I have some sympathy with what the noble Lord, Lord Cormack, has said, but equally I think that we are in danger of making this yes or no, black or white and getting ourselves boxed into corners. Something remarkable happened a couple of weeks ago. The Sun carried a story based on a report from the Resolution Foundation. I shall not go into the full details, but the Resolution Foundation had found that private renting was likely to increase by one-third over the next couple of decades and the Sun reported that there would be an 80% fall in owner occupation in that period, which it had somehow deduced from the one-third increase. That is not remarkable, but what is remarkable is that the charity Full Fact, of which I am deputy chairman, pointed out the error to it and—do you know what happened?—it apologised and corrected it. This may just mean that the Sun has completely changed its coat and that, in future, we can expect page 3 to consist entirely of corrections of its errors, but there is another explanation, which is that the Sun realises, as does the whole press, the pressure that it is under from these Houses of Parliament and from the victims to mend its ways. The danger, however, is that that will last just so long as Section 40 has not been repealed and there is no Leveson 2, and then it will return to its old ways. I think that there is a way through on this. In Amendment 109, the Government are introducing a requirement that the Information Commission review after four years how the press and media are getting on with data protection. If they were to widen that concept of a review after four years, it would keep the pressure on the newspapers to behave differently. I believe that they have made some progress. The institution of the arbitration scheme by IPSO, which was the glaring fault in its original constitution, was a big step forward even though it has its flaws. If we can keep the pressure on in the way that I suggest, by Ministers agreeing to extend Amendment 109 to a wider forum, we may find a solution to this mess without us having Lords versus Commons. Rather, we would meet a common need to have a better press free to report, as is its duty.
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- Lord PrescottLabour
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- I am sorry for my earlier intervention. I thought the noble Lord, Lord Lipsey, was a Labour Member. I declare an interest: I have twice been a victim of this. I do not have the clever words of the lawyers who constantly dominate this debate but we are talking about credibility, about a promise and about a Parliament that has agreed an action but is now about to reject it. That is a very important issue for both Houses to face. I say to the Minister that I support the noble Baroness’s amendment on a second inquiry. Indeed, I am pleased to see that Lord Leveson himself did so when the Government consulted him on it. To that extent, this is a political decision—a very political decision—that the Government have made. I have three questions; I know that time is limited and I do not want to delay the House. My first question is based on my experience. I think that a second inquiry is necessary and should not just be into the events of the time. I do not think that things have changed, even with the so-called independent press body. We need to ask ourselves, what did the royal charter mean? When it was presented to the Commons, when I was still a Member there, we were told that the matter would be taken out of the political field—that it will be dealt with in a royal charter, we can all agree it together and there will be no division. Well, there is certainly division now, and it is still under the Queen’s charter. I ask the Minister: did they discuss this with the Privy Council or the Queen? We have actively involved her in a deliberate breach of a decision between the two Houses. We are, in that sense, divided. It is very political and on political lines, although it is all the opposition parties in the other place that have actually agreed on this. Did the Government consult the Queen on this? I was always told that you do not involve the Queen in the politics; that is why we use a royal charter. Well, by God, we have certainly involved her now, and we are divided. What is the position? Has she been advised about it and does she agree it? Is there any obligation to talk to her, and did the Government do so? My second question concerns my interest as someone who was phone-hacked. I went to the courts and it was denied by everybody—by the press body, the police, the public prosecutor—so I had to win my case on the grounds of human rights, European human rights. I had to get it established that the hacking of my phone was a breach of my human rights. Since then, everybody has been telling me: “That is now the past; things have changed and you don’t have to worry. We can just get on with the business and not have a second enquiry”. Then, along comes the Sunday Times and Mr Witherow, its editor. We know from recent announcements in ongoing court cases that a man called John Ford was hired to commit criminal acts against individuals, including me and the Prime Minister at that time, Gordon Brown. It is clear from his statements, his bank accounts, his personal effects and the solicitors that we were all hacked and the victims of criminal acts by this Mr John Ford, who has made it absolutely clear everywhere that he was employed by Mr Witherow. Now, of course, you might play around with the word “employed”, but he was paying him for 20 years. He might have been a separate investigator, but he was committing criminal acts and breaching the human rights of everyone involved. That has been announced in public statements by Mr John Ford. Indeed it was Mr Witherow who, when asked about the Leveson inquiry, when Gordon Brown was challenging him about things that happened then, said there was no truth in it. Well, Mr Witherow, you appear to be a liar. I know those are strong words used here, but you did not tell the truth, you did pay the money and you did commit criminal acts against people and breach their human rights. That, surely, in any democracy is wrong. Leveson showed it was wrong; he even pointed it out. We just ignored his recommendations. We are not entitled to do that, in my view. You can force the issue if you like and talk about the powers, telling us that we can disagree on day one but not on day two. You can say that as much as you like. There are very important issues involved here about the human rights of individuals. I am not talking about the real victims who have been betrayed by the Government, due to a manoeuvre with the Irish. But leave that aside—we can all have our opinions about that. My third and final question is on something that I have never understood, although I have asked about it in every debate here. If the argument is about having these press regulations as recommended by Leveson, or most of them, why is it that they accuse us of a threat against democracy? They say that if editors are forced to register with government then that is the biggest threat to democracy. But I will ask again, although I never get an answer: why is it that every one of these newspapers registers in Ireland? The accountability in Ireland is controlled by a Minister in its Government but I think nobody is suggesting that there is no democratic accountability in Ireland. If the same newspapers can sign up for the same kind of accountability under a form of state regulation in Ireland, why can they not do it here? Perhaps they cannot do it here because of what they can get away with under a Government doing what they are at the moment. Remember that there have been seven full inquiries into the press and they have always recommended a regulatory framework. That has always been defeated and it looks as if it will be defeated again. No doubt it will help among the press with me being just a politician. Perhaps it helps what they print if they have a Government supporting their issue. It might influence their opinion. For my mind, the issue is in the three questions that I have posed in all these debates. Why in Ireland? Why are they are at it again since Leveson, using illegal, criminal acts to breach the human rights of people? That is what the accusation was about and nothing has been done about it, except to protect them even further. As for the Queen, I would be interested to hear if it was talked over with her.
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Lord Kerslake (CB)Crossbench- Quote
- My Lords, I speak in support of the amendment tabled by the noble Baroness, Lady Hollins, and in doing so I declare my interest as chair of the Manchester Arena review. Indeed, it is on this that I would like to speak first as it was referred to in the debate in the other House. I will come back to the noble Baroness’s amendment later. If your Lordships look at the terms of reference of the review, you will find no mention of us looking into the behaviour of the press. However, both the Mayor of Greater Manchester and the review panel were clear from the outset that the experiences of the bereaved families, the injured and others directly affected should be at the heart of the review process. It was through the contributions of those directly affected that the issues of media behaviour emerged. The panel commissioned the National Society for the Prevention of Cruelty to Children to support its work. Over 200 contributions were received via the NSPCC, most through email and a dedicated phone line. Members of the panel also met with those directly affected to hear their experiences in person. The panel itself heard from the family and friends of 11 of the 22 people who died. These contributions were made on an individual basis. They were strictly confidential apart from the need, should it arise, to share them with the coroner. I salute their enormous courage in reliving that experience in order that we might learn for the future. On a personal level, I felt truly humbled by their contributions. Most of the participants who commented on their experiences of the media in the aftermath of the attack were negative. People talked about being hounded and bombarded; about having to force their way through scrums of reporters at hospitals who “wouldn’t take no for an answer”. Specific mention was made of photos being sneakily taken through the glass windows at the Etihad Stadium, when the families were being given news of their bereavement. Several people told of the physical presence of crews outside their homes. One mentioned the forceful attempt by a reporter to gain access through their front door by ramming a foot in the doorway. There were at least two examples of impersonation. I personally heard from a family whose daughter was visited by a reporter at their home and given condolences on the death of her brother, while her parents were at the Etihad stadium waiting to hear the news. This took place on the morning following the attack. The families were not told that their son was likely to be among the fatalities until later that day. In another case I heard I was told of an injured member of a family being rung on her mobile by a journalist while in a hospital ward recovering from multiple operations to deal with her injuries. I could go on, but noble Lords can read the account for themselves in chapter 2 of our report. It is important to say that a number of families spoke in praise of the sympathetic reporting, particularly by the Manchester Evening News, but also by other papers local to the bereaved. But overall, the panel were shocked and dismayed by these accounts. To have experienced such intrusive and overbearing behaviour at a time of such enormous vulnerability seemed to us to be completely unacceptable. By any measure, these actions fell well below the standards set out in the editors’ code of conduct. The report does not name individual publications or news channels. This is because neither we nor the families concerned where in a position to confirm, when a journalist said they were from a particular publication, that this was indeed the case. Nor have there been many individual complaints to IPSO. The level of trauma experienced by these families, which they were still living with when I met them, meant that even if they were aware of the opportunity to complain to IPSO, the reality is that that was very unlikely to happen. Their focus, quite rightly, was not on press intrusion but on coping with family tragedy—something that consumes most if not all of the time and energy available to them. But I am in no doubt that a number of journalists, albeit a minority, behaved very badly towards these very vulnerable families and it is highly unlikely that they were all from foreign media. In contrast to the fire and rescue service and Vodafone, which immediately issued full apologies on the issues we raised, the response from IPSO and other representative organisations to our media findings was very disappointing. To his credit, though, the chair of IPSO, Sir Alan Moses, has in subsequent correspondence with me acknowledged the seriousness of the issues and IPSO has produced an action plan to address our recommendations. It was not the role of the review’s report to comment on the wider ramifications for the press. Our focus was on what specific action could be taken to prevent this happening again. But there is a real relevance to our debate because it points to the fact that, whatever improvements have been made in recent years, real issues still remain about the behaviour of the press, and in significant parts of the press there is still denial about these issues. I should say that I am a passionate believer in the independence of the press and its importance in a free society. Indeed, to the annoyance of some of my colleagues in central and local government, I argued forcefully against new proposed restrictions to the Freedom of Information Act being put forward by the then Minister for the Cabinet Office, one Matt Hancock. It is certainly the first and probably the last time I will receive a favourable comment on the front page of the Daily Mail. This love of papers was imbued in me from an early age. One of my father’s personal treats at the weekend was to buy a couple of extra newspapers to read. He always went for papers which did not reflect his particular views so that he could get a rounded picture. My love of newspapers, inherited from him, is not conditioned by whether or not they say kind things about me or even this House. If the price of having a free press is for noble Lords to put up with being described as “ripe for the abattoir”, that is a price worth paying. However, that licence cannot and should not be extended to ordinary members of the public who are vulnerable and not in a position to respond.
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- Baroness Cavendish of Little VeniceCrossbench
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- My Lords, I do not think anybody can listen to that description without being worried about the state of the press. There is no point pretending that everything is perfect. As a former and current practising journalist, I would not. I welcome the narrowing of the scope that the noble Baroness, Lady Hollins, has suggested, particularly the exclusion of local newspapers, but I suggest that in recognising the importance of that she has also recognised the significant burden that the kind of wide-ranging inquiry she is proposing would place not only on those papers but on all the others that would be covered by the remaining scope. The last time I had the temerity to speak in this debate, the noble Lord who spoke after me said that he had heard quite enough from journalists, thank you. Actually, there are very few journalists in this House and, I suggest, very few people who understand just how difficult the task of investigative journalism is. Although the issues we are immediately concerned with in the amendment are about the salacious nature of journalism, I fear that even this amendment would touch on some of the important issues that I, as an investigative journalist, have dealt with. I won the Paul Foot Award for exposing miscarriages of justice in the courts. As a result of that the Labour Government changed the law, I am pleased to say. I was also involved in the exposure of the Rotherham sex-grooming scandal at the Times with Andrew Norfolk, who was referred to earlier. I believe that Andrew Norfolk’s view about Section 40, as expressed by the Minister, is very important. He is at the front line of investigative journalism and understands what that would actually mean in practice. This should not be just about revenge. If we are going to legislative effectively, we have to think about exactly what we are trying to achieve. The noble Lord, Lord Prescott, suggested that nothing has changed since his experiences. I suggest that a great deal has changed, and other Members have referred to that. The landscape is different. IPSO is a tougher regulator. I was so disturbed by some of the events in Manchester that I contacted IPSO to find out how it had dealt with them and how many complaints had been made. In fact—I think the noble Lord, Lord Kerslake, would agree—only one complaint was made to IPSO about the Daily Star; that complaint was upheld. There may be a problem, as he suggests, in that people could not trust exactly which publication they were talking to but we need to take that into account when we are reflecting on this. We have heard today and in subsequent readings of the Bill about the significant new powers to be given to the Information Commissioner. I asked the Minister a question, which arose out of my ignorance, and was shocked to hear the scope of the new powers that are being so rapidly extended. We need to reflect on that again. As the noble Lord, Lord Lipsey, said earlier, one of the powers the Information Commissioner will get under House of Commons Amendment 109 is to review journalistic application of data protection laws. I would rather wait and see how that pans out. I suggest to the noble Lord that that will put significant pressure on the press. I do not like public inquiries. They tend to be a last resort for Governments who do not know what to do. They are extremely expensive and work only when they have a specific end in mind. My real fear about the amendment is that the specific end that many of its supporters have in mind is to reopen precisely the questions and amendments we have been debating and which have been defeated in the House of Commons, in particular those relating to Section 14 of the Crime and Courts Act. If we launched yet another public inquiry, of which the public would not be greatly supportive, we would reopen a series of questions, some of which would go back over old ground. I appreciate the promise of the noble Baroness, Lady Hollins, to move forward—she is right on that—but we would open the door again to people who are keen to impose enormous costs and burdens upon the major newspaper groups. It would expose those groups to having to pay malicious damages in groundless, malicious lawsuits. Let me remind noble Lords of the history of this House. When I arrived here I thought it was about defending free speech. I totally accept the concerns that have been raised—I do not believe that everything is perfect—but this amendment is not going to move us forward.
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Lord Black of Brentwood (Con)Conservative- Quote
- My Lords, standing on one leg will at least ensure my brevity. I declare an interest as deputy chairman of Telegraph Media Group. I agree entirely with the comments of my noble friend Lord Cormack and the noble Lord, Lord Pannick, about the advisability of sending this amendment back to the House of Commons. Were we to do so, we should remember a few points on the substance of the noble Baroness’s amendment. First, we should always bear in mind that the amendment would produce yet another inquiry covering the same ground that has been ploughed over not only by the first Leveson inquiry but by three police investigations, at least three Select Committee inquiries, a Joint Committee of this House, the US Department of Justice and, in this country on the question of corporate liability, the DPP. There is little left to uncover. Secondly, since Leveson reported, there has been a genuine, wholesale change in press regulation. We have moved from a voluntary complaints handling service, chaired by my noble friend Lord Wakeham, to a system of tough, legally enforceable regulation with strong powers of sanction. I say to the noble Lord, Lord Lipsey, that it is those tough legal powers which IPSO possesses that mean there could be no backsliding to the standards of the past. Thirdly—this an important point we all need to bear in mind—since IPSO introduced a mandatory arbitration scheme in the past few weeks, there are virtually no lawful recommendations of Leveson that have not been introduced. It has produced a sea change in how newspapers are run, managed and deal with complaints, and in how journalists are trained and monitored. Fourthly, since the first Leveson inquiry, the situation facing the press has changed dramatically. I note the noble Baroness seeks to cut out the local press from this but all publishers, including national ones, are under huge and sustained commercial pressure, which will not abate. It is a struggle for survival on a day-to-day basis, which will be made all the more complicated by having to wind the clock back 10 to 15 years to rake over a world which, frankly, no longer exists. Fifthly, the biggest threat today to the sustainability of high-quality journalism comes from Google and Facebook, which are not even mentioned in the amendment. If we go down this route, in 20 years’ time people will ask why on earth this Parliament insisted on endlessly rerunning the repeats of an ancient black and white drama rather than looking at how journalism could survive in the global digital environment. I have always been taught that this House must try to understand that, as an unelected Chamber, it needs at least to try to understand the realities of the outside world and take note of the will of the people. During a consultation on what is, in effect, this amendment, the people spoke in huge numbers and, by an overwhelming majority, rejected it. For all the reasons that I set out today, so should we.
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Baroness Kennedy of The Shaws (Lab)Labour- Quote
- My Lords, I know that my noble friend—
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Lord Faulks (Con)Non-affiliated- Quote
- My Lords, I do not think the noble Baroness was here for the debate.
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- Baroness Kennedy of The ShawsLabour
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- My Lords, I was here during the previous amendment; of course I was. I was here in relation to the whole matter concerning this amendment from the noble Baroness, Lady Hollins. I heard the references from the Front Bench to the particular part of the argument that has just been conducted, and I was here to hear the noble and learned Lord, Lord Keen, speak about what was happening with this amendment and what had happened in the Commons. I shall carry on because I do not accept the comment made by the noble Lord. I support the position of the noble Baroness, Lady Hollins, for a number of reasons. One is that the question of ethics, and the ethics of the media, has really not been dealt with adequately so far. The other matters that really concern me are those concerning the police. So far, I am afraid, the police have got off rather lightly in the course of investigations into what took place regarding media misbehaviour. Unlike other lawyers—I know my noble friend Lord Prescott has a poor view of lawyers—I do not act for newspapers and have not done, nor do I have a column in any newspaper. However, I have acted for victims who have gone through court processes, I have acted for defendants who are on trial and I have acted in inquests, and I have to say that the story with regard to police behaviour is not good. Too often—I know this from direct experience—there have been leaks and tip-offs to the media by the police when people have been invited into police stations to be interviewed. Perhaps they are suspected or they are going to assist in an inquiry, but they end up being met at the police station doors by photographers and journalists. They are exposed to speculative pieces about why they were being seen by the police, and often they are chased and stalked by the paparazzi as a result. You have to ask yourself why that happens. I am afraid that journalists covering criminal courts over the years have told me that often they would basically have police officers in their back pockets, and that meant the pocket that had their wallet in it. What was offered to police were bungs, pay-offs and “drinks”, as they were called euphemistically, for providing those tip-offs. They happen still, and they have happened subsequent to the Leveson inquiry: people who have been asked to come to police stations to be interviewed with regard to sexual matters but have not been charged—and no charges have, in the end, been forthcoming—have found themselves over the front pages of newspapers. At this very moment, Sir Cliff Richard is involved in litigation regarding that kind of collusion and coalition between the media and the police. I am concerned that the police still have not been looked at adequately for the role they have played in some of this particularly iniquitous conduct. The second part of Leveson seems of real importance to the well-being of our nation. If there is corruption in our police—if they are able to do this and to supplement their incomes by doing it, and there is money available in the media to do it—we know that something is seriously wrong. I hope the House has that in mind. Sometimes the purpose of a public inquiry is to air such matters and make clear the seriousness with which such corruption and misbehaviour is viewed.
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Lord PaddickNon-affiliated- Quote
- My Lords, I should declare a few interests. The first is that I was the victim of a kiss and tell story in a Sunday tabloid newspaper: front page and eight inside pages. I was also, separately, the victim of phone hacking. Thirdly, I joined the noble Lord, Lord Prescott, in his civil action under the Human Rights Act. Fourthly, I am a former senior police officer. Briefly, on the contribution of the noble Lord, Lord Pannick, and the rather rosy picture he has of civil actions being taken by victims of phone hacking, and referencing what the noble Lord, Lord Black, said about the reality of what goes on outside, my reality was that yes, I had lawyers working on a conditional fee agreement—no win, no fee. I was told at the beginning of the process that I could get insurance against losing. Three months into the action, when tens of thousands of pounds had been spent by both sets of lawyers, it was established that I could not get insurance against losing. If I had stopped the action at that point, I would have had to pay the costs not only of the newspapers’ lawyers but my lawyers, because a conditional fee agreement works only if you go through with the action and then lose. Unfortunately, it is very difficult for ordinary people to take on newspapers through the courts in the way that the noble Lord, Lord Pannick, presented it to the House earlier. I say to the noble Lord, Lord Cormack, that, yes, the other place considered a previous amendment that we put to them. This is a different amendment. It addresses many of the concerns expressed in the other place, and the other place should have the opportunity to consider this amendment. The noble Baroness, Lady Cavendish of Little Venice, and the noble Lord, Lord Black of Brentwood, both talked about the enormous burdens on major newspaper groups. We need to consider the enormous burdens placed on innocent victims of the media.
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Lord PuttnamLabour- Quote
- My Lords, the noble Baroness, Lady Cavendish, made the point that there were few journalists here. As far as I know, the noble Baroness, Lady Kidron, and I are the only remaining film-makers—and I think that we do know how to edit. I would very much like to support the amendment perfectly set out by the noble Baroness, Lady Hollins. It should not be necessary to say this in your Lordships’ House but, once again, I reiterate that I am the proud son of a journalist and would die in a ditch to protect a responsible and fearless free press. But freedom of any sort brings its own responsibilities, and the greatest of these is the sustaining of trust. This short debate is all about trust. The Minister in another place said he was being “forward-looking”. I am sure that I speak for many in this House when I suggest that the most forward-looking ambition that we share is the possibility that we might, over time, regain the trust of the people of this country in the quality and integrity of Parliament. As I see it, this ambition trumps all others—and to judge by recent coverage in our national press we are not coming from a particularly good place in that respect. On the evidence of the past 20 years or so, much of the national press takes the position that its role in society is so important that Parliament needs to get over itself, and understand that in the real world you cannot make omelettes without breaking eggs. The view that it appears to advance is that, to remain sustainable, injustice, distortion, deception, abuse and even at times criminality are the price that society is required to pay for a robust, unfettered press. What if the Church took a similar position with regard to misconduct in its own ranks, or our judges argued that an acceptance of illegal practice in the collection of evidence was a necessary price to pay in the pursuit of justice? At the height of the financial crisis we came close to being persuaded by the banks that their reckless behaviour was justified by the pressures placed on them by their shareholders. I would argue, as has been very well put many times during the passage of this Bill, that society cannot afford the luxury of entirely unconstrained freedoms—not in the law, the Church, the financial sector, social media and even the press. The reasons why Leveson 2 is necessary were well explained by the noble Baroness, Lady Hollins, in setting out her amendment. Personally, I have not the slightest doubt that such a review would reveal an extensive and entirely improper set of relationships between the press, politicians and the police, with the very real possibility that significant cases of actual obstruction of justice would come to light. It seems just possible that, in making that suggestion, I have stumbled across the real reason for the Government’s desire to scrap this second and, to my mind, more important inquiry. I have just two specific questions to put to the Minister. First, having checked, I can find no record of the former Prime Minister having expressed a view on the unprecedented repudiation of his commitment to Parliament, let alone the breach of his well-publicised personal promises to the victims of press abuse. Has he been asked about, and has he indeed endorsed, the recent decision by the Secretary of State? Is Mr Cameron prepared to meet the victims to explain what factors or new revelations encouraged him to change his mind on this matter—if he has? Possibly the Minister, or even the media, might choose to inquire. Further, does the Minister feel that the precedent set by the decision to scrap Leveson 2 is likely to enhance or diminish the likelihood of overcoming the challenge I referred to at the outset—the ambition of all responsible politicians to develop greater public belief in the honesty and integrity of Parliament in general and of the Government that he serves in particular?
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Viscount Colville of Culross (CB)Crossbench- Quote
- My Lords, I declare an interest as a television producer who has been involved in investigative programmes for the BBC and other channels. I listened with horror to the stories of victims that my noble friend Lord Kerslake told, and I am sure that I was as appalled as the rest of the House. In previous debates, my noble friend Lady Hollins has also talked about victims’ stories, which must also have appalled us all. However, I ask the House to consider how the amendment could rebalance the relationship between the right to privacy of the individual and the right to freedom of expression, in favour of the former. I am particularly concerned about proposed new subsection (3)(f) of the amendment, which looks innocent enough—and I think that it would help the victims of phone hacking, which of course is something I welcome. However, it might come at a terrible cost to freedom of expression. This morning I spoke to a number of representatives of the most responsible newspapers and broadcasters about their fears over this proposed new subsection. They are concerned that switching the balance between free speech and the privacy rights of the individual will raise the bar for the way in which publication in the public interest is viewed by the courts. As someone who has worked in the media for many years, I fear that even the prospect of the bar being raised will have a chilling effect on investigative journalism. Editors will be afraid to commission investigative stories for fear of not being able to publish them. Likewise, it will empower lawyers who want to defend the privacy of wealthy individuals. I have looked at the case brought against the BBC and the Guardian newspaper for the publication of the Paradise papers, which exposed no illegality but revealed, on an industrial scale, the avoidance of paying British tax by huge corporations and wealthy individuals. The purpose of the publication was not only to expose the actions of individuals and corporations but to focus British public and political opinion on the nature of offshore investments and tax avoidance—which I would argue is definitely in the public interest. Yet the lawyers at Appleby, the offshore legal firm at the centre of the Paradise papers affair, used a breach of confidence case against the media’s use of privileged documents to target the organisations involved. The case has been settled, but if it had gone to full trial the judge would have had to weigh up the right to privacy of the individual against the public interest in publishing the documents. In all these cases, editors must take into account the possibility of losing, even when publication is demonstrably in the public interest. An inquiry into rebalancing rights of privacy against freedom of expression will further increase that anxiety. I am concerned not just about the rebalancing of rights to the detriment of free speech; I am concerned also that this amendment will be a distraction from the implementation of a complicated series of new legal powers introduced by the Bill. Many of these will be challenged by the courts and will consume a huge amount of time on the part of media organisations, as all sides struggle to ensure that the very worthwhile measures set out in the Bill are put into full effect. The amendment is retrospective and potentially damaging to the Bill and to free speech in this country. I urge noble Lords to vote against it.
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Lord Grade of Yarmouth (Con)Non-affiliated- Quote
- My Lords, I regret that I cannot support the amendment in the name of the noble Baroness, Lady Hollins. This has been a passionate debate so far and there is, no doubt, more to come. However, there has been a definite lack of balance. There has been no mention of the good that the press has done over the many decades that I have been a newspaper reader. We can go back to Harry Evans and thalidomide; to MPs’ expenses in the Telegraph; we can talk about phone hacking itself, which was exposed by newspapers; the noble Viscount has just brought the Paradise papers to the attention of the House. Addressing myself to the amendment, I have spent a lifetime on both sides of the media fence, as editor-in-chief of ITV and Channel 4; as a Daily Mirror sports journalist 150 years ago, when Charlton Athletic used to win; and, too often, as the subject of media scrutiny and—putting it at its most charitable—the victim of some very painful criticism. I have several reasons for opposing the amendment. First, if there is a principle underlying the proposed new inquiry into the press et cetera, how can regional newspapers be exempt? Is it a principle or is it not? If there is a problem, pleading poverty should not excuse you. Secondly, lumping the press and broadcasting with social media on the issue of misuse of data is to misunderstand entirely the nature of the problem we face. Newspapers and broadcasters are governed very strictly in their handling of data, not only by regulators but by the Information Commissioner’s Office, with a carefully crafted exemption for public interest data searches. The ICO is a statutory body with draconian powers which it is not afraid to exercise. We know that Facebook and its ilk are displaying scant regard for data privacy. I am sure that noble Lords all agree that the Cambridge Analytica issue is the tip of the iceberg. Traditional media offer no evidence to justify this lumping together in the amendment. Thirdly, I suspect that lying behind the amendment is yet another attempt to exercise some statutory controls or levers over our free media. Any inquiry, not least that envisaged by this amendment, is bound to produce recommendations, with the risk to free speech of some statutory device, overt or covert, buried in them.
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Lord Brown of Eaton-under-Heywood (CB)Crossbench- Quote
- My Lords, I too respectfully resist this amendment. I will touch on one point: the suggestion that Leveson 2 was promised and the Government are now brazenly breaking that promise. I suggest that that is not so. Were the public inquiry required by this amendment to go ahead, it would be a very different inquiry from that which was originally contemplated and promised by way of a further stage of Leveson. Consider the differences between Amendment 142 that this House originally passed, confined as that was to news publishers, and extending as it did to regional and local newspapers. That is totally different from the amendment now suggested, which is almost the same as the one that was rejected by the other place last week. Consider the differences in the legal landscape—IPSO, about which much has been said. I should perhaps declare that I was one of the body of five who appointed IPSO, but that is hardly the point. Lord Justice Moses was a colleague of mine, as was Lord Justice Leveson, and both are of equal seniority and equally high reputation. Consider all that has been learned from the series of cases since Leveson 1. While certainly not agreeing to the abandonment of any further inquiry, Leveson himself recognised changes in the legal landscape in the letter that has been referred to, referring on page 5 to how, “the guidance from the College of Policing regarding Media Relations represents significant change”, and recognised the fact that work is currently under way on a digital charter. This inquiry would also require investigation into issues which, frankly, have nothing very obviously to do with this Bill on data protection. It would require an investigation into whether suspects should be named before charge or conviction. That is a difficult, important and interesting question, but it is not something that obviously arises now. Inquiries are sometimes compellingly necessary, but it is no good pretending that they are invariably the panacea that they are cracked up to be. Note some of the difficulties in, for example, the historical sex abuse inquiry, the inquiry into undercover policing and so on. I respectfully suggest that a further inquiry is not required here. My noble friend Lord Pannick is not always right. You have only to read his column in last week’s Times which extolled your Lordships’ decision to maintain the European Charter of Fundamental Rights despite Brexit to realise that he is not always right. But right he is on this issue, and I suggest that your Lordships do not pass this amendment.
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Lord Falconer of Thoroton (Lab)Labour- Quote
- My Lords, I strongly support the amendment. I declare an interest: I understand that Mr John Ford has alleged that 15 years ago he went through my rubbish on a regular basis at the request of the Sunday Times. I find it impossible to believe that anyone would find my rubbish interesting. That has had no effect whatever on my opinions with regard to this issue, and I supported the continuation of Leveson 2 even before I discovered that Mr John Ford had apparently been going through my rubbish. I am strongly of the view that this House should send the amendment back to the Commons for further consideration, for the following reasons. First, there is no doubt, despite what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, just said, that there was an unequivocal promise by the House of Commons and this House that there would be part 2 of Leveson. I quote the then Prime Minister: “One of the things that the victims have been most concerned about is that part 2 of the investigation should go ahead … and that is fully our intention”.—[Official Report, Commons, 29/11/12; col. 458.] That was said by the Prime Minister, Mr David Cameron, after the delivery of part 1. To my mind it is incredibly important that, if you set up a public inquiry, before the public inquiry has been able to reach findings on who was responsible for what happened—probably because of pressure from the people who might be responsible—the second part of that public inquiry is not scrapped. But that is what is happening here. My experience of when the justice system fails is that the victims feel that they have nowhere to go, and that corrodes not just their view of the justice system but a large number of people’s view of it. I particularly have in mind the Hillsborough victims, who were denied justice by a coroner’s system and who felt that the whole justice system let them down. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, says, “Oh, things have changed”. Who is the best judge of that? I suggest it is Sir Brian Leveson, who said that, “there is still a legitimate expectation on behalf of the public and, in particular, the alleged victims of phone hacking and other unlawful conduct, that there will be a full examination of the circumstances that allowed that behaviour to”, take place. He said that when he was consulted on the question of whether part 2 should be scrubbed. Therefore, I regard the promise as important and the reneging of it as something that will corrode justice. It will affect not only the victims but other people, and I utterly reject the complacency of the noble and listed Lord, Lord Cormack, to the effect that we should not press this any further. Yes, we sent the Bill back with a clause which the Commons took out, but the right thing for this House to do is to ask them to think again, particularly when last time there was a majority of nine. If we debate this well and give the reasons, it is worth doing. Therefore for me, the first point is the promise. The second point is that the problem is still there. The speech given by the noble Lord, Lord Kerslake, was appalling, not in its quality but in what it told us. The noble Lord, Lord Pannick, suggested that the solution to this was “civil litigation or criminal proceedings”. Can you imagine the people that the noble Lord, Lord Kerslake, described, who have been hounded—his word—by the press, thinking of bringing civil litigation to complain that the first they heard that their loved one had died was when a representative of the press came round? Pull the other one! Get out of the courts and think about what the real world is like. Then people said that IPSO had made a difference—the IPSO that two weeks ago, in the face of this Bill going through Parliament, in a great rush and with no explanation of why it had not done it before, suddenly introduced a low-cost arbitration scheme. Why did it do it? It did it because Parliament was breathing down its neck. If Leveson 2 is got rid of, let us be under no illusion that that will be the end of that. Things will be just as they have been in the past. I cannot remember which Peer described IPSO as absolutely marvellous. It might have been the noble and learned Lord, Lord Brown of Eaton-under-Heywood. No, I am sorry; it was another noble Lord. So far IPSO has not imposed a single fine; it has not demanded a single equal-prominence front page direction; and it has not launched a single systematic inquiry, as it has the power to do. There have been 8,000 complaints about hate crime so far and only one has been upheld. We should not accept the proposition that IPSO has solved the problem. The fourth reason it is said that we should not have this inquiry is that, as the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Cavendish of Little Venice, said, it would threaten to chill investigative journalism. However, what is being proposed here is not a specific provision to change the press. It is for a judge of standing to see what should be done next, and I have absolutely no doubt that a new judge would be able to do so, having no doubt heard the evidence from the people the noble Viscount, Lord Colville of Culross, was speaking to on the telephone this morning, and just as Sir Brian Leveson managed to do. Fifthly, people ask, “What about social media?” Exactly: what about social media? Facebook and so on are a real problem, and that is why the noble Baroness, Lady Hollins, has included social media in her proposed new subsection (3)(d). Sir Brian Leveson wants to have part 2 of the inquiry and it has been amended to deal with the changes. It would be a disgrace and a betrayal of the victims if we did not go ahead with it. I strongly support the amendment.
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Lord Hunt of Wirral (Con)Conservative- Quote
- My Lords, first, I declare former interests as the last chair of the Press Complaints Commission between 2011 and 2014, and then as the first chair of the new Independent Press Standards Organisation, IPSO, together with my other interests as set out in the register. As the Secretary of State said in his Statement of 1 March this year, repeated here, we all owe a great debt of gratitude to Sir Brian Leveson. His inquiry and subsequent report showed rigour, diligence and a judicious balance between competing interests. When his report was published in December 2012, Lord Justice Leveson recommended a new, tougher form of voluntary self-regulation of the press. As chair of the PCC at the time, I welcomed his proposals and suggested that they should be implemented in full. The Leveson proposals were largely implemented between 2012 and 2014, but I was not able, at that stage, to persuade the newspaper industry to embrace them in their entirety. Since then, under my successor, Sir Alan Moses, the new arrangements have bedded down and IPSO has gradually become more and more compliant with the Leveson recommendations. I strongly welcome the introduction of the new arbitration scheme, which was introduced not in a rush, as the noble and learned Lord has just said, but after extensive consultation, and it is a major step forward. I say to a number of other speakers that illegal activity, as distinct from breaches of the editors’ code, is best dealt with by the police and the courts, and that has now largely happened—belatedly, yes, but also comprehensively.
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- Lord Falconer of ThorotonLabour
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- The amendment includes the words, “to investigate the dissemination of information and news, including false news stories”. It would have said “fake news” but the draftspeople said that that would not be the right way to term it. Therefore, I think it covers the sorts of things that the noble Lord thinks it should, or am I wrong?
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- Lord Hunt of WirralConservative
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- I raise fake news as an issue not because it is or is not covered by the amendment but because it must concern us all, particularly as a society. There are good reasons for rejecting the amendment. It would be an analogue inquiry in an overwhelmingly digital age. It would also—rightly, in my view—be seen as yet another attempt by politicians to meddle in the internal affairs of news media and, ultimately, to muzzle free expression. This country, which should be a beacon of free expression in a world bedevilled by state censorship, has just fallen from 30th to 40th in the global ranking for free speech, according to a survey conducted by independent minds right across the world. Let that sink in my lords: from 30th to 40th. It is shaming. What message are we now to send out? That the free media are enemies of the state? They may be unruly and they may challenge us in ways that make us uncomfortable, but they are not our enemies. Furthermore, it concerns me that we are playing around with the Salisbury convention. The noble and learned Lord has just spoken about promises. As the noble Lord, Lord Pannick, pointed out, this amendment flies directly in the face of last year’s Conservative Party manifesto. On page 80, that document said that, “we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press”. That was pretty clear. I know that the Labour Party had a euphoric moment after the last general election, almost persuading itself that it had won, but it did not. I take no comfort from the qualifying words that the noble Baroness has added to her amendment this time around. We are dealing here with profound matters that touch on the very basis of our society and our political philosophy, and the question of whether we truly cherish our freedom of expression and our free media. I suppose ping-pong can be an enjoyable pastime but at some point the views of the elected House must prevail. I have the utmost respect for the noble Baroness and the greatest sympathy for the unacceptable treatment that she and her family, and far too many others, have received from the press. Having said that, I sincerely hope she will not seek to divide the House again on this matter.
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Lord McNally (LD)Liberal Democrat- Quote
- My Lords, as the noble Lord, Lord Grade, said, this has been a passionate and, actually, very balanced debate. A number of noble Lords have expressed concern about the amendment before us and have, sort of, made a case against it. When the noble Lord, Lord Black, came in, struggling on his crutches, I did think: is there no end to which this man will not go to get sympathy from this House? I wish him a speedy recovery. When introducing the debate, the Minister said first that these amendments have no place in the Bill because it is about data protection and then began to dazzle us with the number of government amendments that pertain to the media. Of course it is perfectly sensible that this matter should be in the Bill. By the way, I say to the noble Baroness, Lady Cavendish, that I did not say I object to journalists; I object to journalists at the Times. She mentioned the growing power of the ICO in all this, which is something that the press should think hard about. The press have been so busy trying to avoid having a proper regulator for themselves that they find themselves well and truly regulated by a powerful ICO. Where the ICO does not regulate the press, the courts may with some of the judgments that are coming down the track. As always, the perorations against, as with the noble Lord, Lord Hunt, have been about freedom and liberty, as though we on this side are not as passionate in our defence of those. Today’s debate has produced the usual press stories that crop up when either House debates the issue. They always either rubbish one or other of the more popular proponents of reform or carry, as did the Evening Standard just before the Commons debate, such headlines as that from the Commons Culture Minister, Margot James: “We will lose freedom of the press if MPs back new curbs”. It is my belief that the real defenders of press freedom are not the Ministers scrambling to close Leveson down but those of us who want to see a press that is respected and trusted, as well as free. When the Commons debated our amendment, Mr Jacob Rees-Mogg, the new Erskine May, said rather imperiously that Parliament had every right to renege on promises made by a predecessor. Of course, he is right—we know that, Jacob. However, it is also a long and honourable convention that there is a continuity of responsibility from one Parliament and one Government to another. We saw it last week when the Prime Minister gave a full and unequivocal apology to the Libyan family for Britain’s part in their rendition and subsequent torture, although it did not happen on her watch. The long tradition of continuity of responsibility means that a promise given by one Prime Minister and one Parliament is unlikely to be abandoned by another. There is a double matter of honour when the promise in question was made by a Prime Minister of the party now in power. David Cameron gave such commitments, and the amendment from the noble Baroness, Lady Hollins, gives the House of Commons a way of redeeming that promise while taking into account the passage of time since it was made. I often find that, when I am indignant having read in the newspaper or seen on TV some summing up or sentence by a judge, my lawyer friends will say, “Ah, but the judge who has heard all the evidence is the best placed to make a balanced judgment on the matter”. In this case, we have the balanced judgment of Sir Brian Leveson himself. Let us remember, after the speeches of the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, that Sir Brian had all the information they had to make their speeches but came to a different conclusion: that it should go on. As I said when the Leveson letter first came up, here is the third most senior judge in the land taking six pages in a very carefully argued letter to give his views on the inquiry on which he spent a year of his life. Some noble and learned Lords in the House should have a little modesty when challenging his judgment because it is absolutely clear that Leveson 2 should go ahead. The noble and learned Lord, Lord Falconer, has already quoted from the letter, so I will not waste time. The amendment before us is proportionate to the task at hand in addressing issues not yet adequately addressed. It redeems a solemn promise made by our Prime Minister and our Parliament. Jodie Ginsberg, the CEO of Index on Censorship, when briefing against these proposals before the Commons debate, said that she wanted, “a free, vibrant, independent and troublesome media”. So do I, and so does the proposer of the amendment. The biggest threat to a free, vibrant, independent and troublesome media is one so held in public contempt because of corrupt and illegal practices that few defenders will come to its aid if press freedom is really threatened. I say to the noble Baroness, Lady Cavendish, that, when the Leveson inquiry exposed sins and criminality, the Government of the day could at that time have done anything they liked to the press. What they did was make a strong attempt to create something as far from political control as possible—I was one of the privy counsellors who signed the royal charter. It is absolutely false to claim that the attempt was to create a state-controlled press. That was never on the table and it is not on the table now. The noble Earl, Lord Attlee, who has been brave in carrying through on Section 40, has said that we will not press it beyond tonight. I am interested to see which bit of legislation will include its repeal and how that will be favoured when it comes back to us. I say to the Minister: this is not the end of Section 40. Tonight, we are looking for something more. As the noble Baroness, Lady Hollins, and the noble Lord, Lord Kerslake, have shown, we are looking at something for the victims. The noble Baroness, Lady Cavendish, should note that it is also something for journalists who need protection from being bullied into illegal acts by their employers. Most of all, it is for our own self-respect in keeping a promise made. I urge support for this amendment.
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- Lord Stevenson of BalmacaraLabour
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- My Lords, we are 90 minutes in and we have heard lots of familiar tropes rehashed and replayed, but have we achieved very much in this debate? While sitting here I have been wondering how on earth one brings together the two very different sides that are emerging in this debate. I whispered to my colleagues on my right and left asking for help and support, and all I got was, “You need the judgment of Solomon on this”, and I do not have that. However, we are going to ask noble Lords to vote on this issue, and so I want us to think very hard about what we have been doing here.
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- Lord Keen of ElieConservative
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- My Lords, I thank the noble Baroness, Lady Hollins, for setting out the thinking behind her Amendments 62A and 62B. As we have heard, they seek to insert an amended version of Clause 142 into the Bill, in contrast to the Commons amendments, which would remove it. I have already set out the Government’s reasons for opposing the inclusion of Clause 142 in this Bill, and I regret to say that the modest changes proposed by Amendments 62A and 62B do not change that analysis. In particular, nothing in the amendments answers the fundamental challenge that creating a further public inquiry is neither necessary nor proportionate at this point in time. I remind noble Lords that it was this present Government, following a public consultation and in implementing a manifesto commitment, who took the present step, which was approved in the other place. My noble friend Lord Cormack alluded to the fact that the other place had already addressed this issue. The noble and learned Lord, Lord Falconer, came back with an accusation directed against my noble friend Lord Cormack of complacency. I have seen my noble friend accused of many things, but complacency is certainly not one of them. I regard that accusation as utterly misplaced and inappropriate. Indeed, I take issue with some of the other factual assertions made by the noble and learned Lord, Lord Falconer, in particular his assertion that no front-page apology had appeared in any IPSO publication since it was founded. I think he will find that may be borne out upon a reading of the Times in the recent past.
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- Lord Falconer of ThorotonLabour
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- My statement was that no front-page apology of equal prominence has been made mandated. Am I wrong about that?
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- Lord Keen of ElieConservative
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- I do not believe that the noble and learned Lord chose his words very carefully previously. As I understand it, IPSO did mandate a front-page apology in the Times.
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- Lord Paddick (LD)Non-affiliated
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- Equal prominence!
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- Lord Keen of ElieConservative
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- All things are relative. I appreciate that a great deal of passion has been exhibited, and indeed the noble Lord, Lord McNally, talked about a passionate and balanced debate; it has been both. It has certainly been balanced when we consider the contributions made on all sides of the House. However, I would seek to touch on one or two points that have been raised. The noble Baroness, Lady Hollins, raised the question of Northern Ireland. To clarify in respect of that matter, the commitment made last week did not relate to the Cairncross review; it related to the review that would be carried out pursuant to Commons Amendment 109, in particular paragraph 4 which refers to a review that will take into account all parts of the United Kingdom and will ensure that there is an independent named reviewer for Northern Ireland. I hope that that covers the point. My noble friend Lord Attlee raised certain issues with regard to VAT. He is right about VAT on e-publications, which are classified as electronic services. EU VAT law specifically excludes such services from the reduced rate of VAT. Further consideration of that matter is beyond my pay grade and is one for Her Majesty’s Treasury in due course, so I shall not elaborate upon that. As regards the repeal of Section 40, the Government are committed to doing that at an appropriate time on the basis of appropriate legislation, so the noble Lord, Lord McNally, can anticipate that coming forward in due course. I shall move on to certain points that were raised by the noble Lord, Lord Prescott. On the royal charter, the Press Recognition Panel, which was set up by the charter, remains a feature of our regulatory landscape so there is no need to intrude upon the charter or to consult further on it at the present time. On his reference to the Sunday Times and the allegations regarding John Ford, that was a matter of self-incrimination as far as I can see in respect of criminal acts that took place before 2011; they are not recent events. On the position regarding Ireland, the press may sign up to the Press Council of Ireland, but they are not obliged to do so, in order to secure the benefits of being members of that council. They may approach that by a different regulatory regime, provided that it has suitable terms, so I do not consider that we can go immediately to that. Reference was made by the noble Lord, Lord Kerslake, to the Manchester Arena review. I appreciate his direct involvement in that, and of course we recognise that for the victims and their families, dealing with the media at such a time can be very distressing. In fact, the Government have recently published guidance for victims and their families on handling media attention in the aftermath of similar events, but diverse reports with regard to the media have come out of that. As the noble Lord observed, only one complaint was made to IPSO regarding the conduct of the regulated media at Manchester, and on 24 April 2018 at a meeting of the National Police Chiefs’ Council on media engagement, the senior press officer at Greater Manchester Police observed that after the Manchester Arena bombing, the media had been exceptional and had treated everyone involved with the utmost respect. In her view, the only qualification was in respect of certain international outlets and social media which had caused families problems. There are clearly diverse views—
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- Lord KerslakeCrossbench
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- I want to put a question to the Minister. Does he not accept that families experiencing this level of trauma and distress are simply not in a position to make formal complaints to IPSO? It is a failed and incorrect test of the extent of the issue.
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- Lord Keen of ElieConservative
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- With respect, that is not the test. Of course, families in this situation are placed in a very difficult position and we recognise that. I do not know if the noble Lord, Lord Kerslake, had an opportunity in the course of preparing his report to actually interview the senior press officer at Greater Manchester Police, although he will be aware of the view she has expressed with regard to the media’s behaviour, but he did not mention that in his earlier speech to the House. There are diverse views and interpretations of what was happening at the time.
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- Lord PuttnamLabour
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- Does the Minister believe that the reputation of Parliament is enhanced or diminished by the refutation of the commitment made by the former Prime Minister?
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- Lord Keen of ElieConservative
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- It is neither. It is a situation in which we have moved on and, as I say, the Government have, following a public consultation, implemented a manifesto commitment. It is in those circumstances that we are proceeding.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendments 56 to 61.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendment 62.
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- Baroness HollinsCrossbench
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- At end insert “, and do propose Amendment 62B instead of the words so left out of the Bill”.
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- Baroness HollinsCrossbench
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- I thank all noble Lords who have spoken and for supporting this amendment, and I should just say that I do not enjoy ping-pong. The amendment returned from the Commons was defeated by only nine votes and I have endeavoured to address the concerns raised in the three adjustments that I have made to the amendment. I want to make a couple of brief comments about those. First, the amendment addresses the DUP’s proper and reasonable concerns in a transparent way by offering a proper inquiry into press conduct in Northern Ireland. Secondly, I have made an adjustment to exclude the local press from the scope of the inquiry altogether. Thirdly, in response to misrepresentations in some parts of the media, I have added a requirement for the inquiry’s recommendations to take full account of the need for freedom of the press to achieve a vibrant and independent media, and the importance of the independence of the press from Government. Holding an inquiry will not restrict freedom; rather, it will support it by shining a spotlight on what has been done illegally and unethically to the detriment of hundreds of ordinary people, including my daughter and my family before I became a Member of your Lordships’ House. As explained by my noble friend Lord Kerslake regarding his findings after the Manchester Arena bombing, there is no evidence that enough lessons have been learned by all sections of the media or that there is adequate accountability. I do not consider that the review by the Information Commissioner is in any way a substitute for completing the inquiry. The job has not been done, and with respect to IPSO, I believe I am right in saying that so far only around 12 of more than 90 of Sir Brian Leveson’s recommendations have been implemented. In formally moving my amendment, I wish to test the opinion of the House.
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- That this House do agree with the Commons in their Amendments 63 to 114.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendment 115.
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- Lord Ashton of HydeCrossbench
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- My Lords, the main amendments in this group relate to the representation of data subjects by not-for-profit bodies. Last time we discussed this matter, the question before us was whether those bodies should have to seek the mandate—that is, the consent—of data subjects before pursuing claims on their behalf. As I said then, “the Government have reflected on the principles at stake here and agree it would be reasonable for a review to be undertaken, two years after Royal Assent, of the effectiveness of”— Clause 183— “as it is currently drafted. The Government are fully prepared to look again at the issue”, of representation without prior mandate in the context of that review. “We are serious about this. We will therefore amend the Bill in the other place to provide for such a review and to provide the power for the Government to implement its conclusions”.—[Official Report, 10/1/18; col. 287.] Commons Amendments 122 and 123 duly deliver on that promise, while Commons Amendment 121 allows the Secretary of State to make regulations to ensure that, where a not-for-profit seeks to represent a large number of data subjects in court proceedings, it can file one claim and not hundreds. I am grateful to the noble Baroness, Lady Kidron, for her continued engagement on this subject. She and I are in total agreement that children merit specific protection in relation to their personal data, and that the review should look accordingly at the specific barriers young people face in exercising their rights. Therefore, Commons Amendment 122 makes provision for that in subsections (4), (5) and (6) of the proposed new clause. Of course, as some noble Lords have mentioned previously, such provision is not to the exclusion of other vulnerable groups in our society, and the Government fully expect that review to consider their position, too. Commons Amendment 126 would allow Her Majesty’s Revenue & Customs to share contact detail information with the Ministry of Defence to ensure that the Ministry of Defence is better able to locate and contact members of the ex-regular reserve. The amendment does not alter the liability for ex-regular reserves, nor does it affect the rules regarding the call-out or recall of ex-regular reserves; it is simply about being better able to contact them. The security of the United Kingdom is the primary responsibility of government. Commons Amendment 126 offers us the opportunity to strengthen that security. Finally, Commons Amendment 282 would insert a schedule making transitional, transitory and saving provision in connection with the coming into force of the Bill, including provision about subject access requests, the Information Commissioner’s enforcement powers and national security certificates. This comprehensive new schedule, running to some 19 pages, is designed to ensure a seamless shift between the 1998 Act and the new data protection law we are scrutinising today. I beg to move.
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Baroness Kidron (CB)Crossbench- Quote
- I thank the Government for listening, the Bill team, the Secretary of State and the Minister, Margot James. The point is that rights are only as good as one’s ability to enact them, so I really welcome the review and I thank all concerned for the very great care and detail with which they have laid it out in the Bill.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, very briefly, we had considerable debate while the Bill was going through the House on whether we should incorporate Article 18(2) and we obviously did not prevail while the Bill was going through this House. Although this does not go as far as incorporating Article 18(2), which I regret—I would clearly like to see the whole loaf, so to speak—at least this gives the possibility of Article 18(2) being incorporated through a review. Will the Minister say when he thinks the review will be laid, in the form of a report? I am assuming that, “within 30 months of commencement of the Bill”, means within 30 months from 25 May this year. I am making that assumption so that we can all count the days to when the report will come back for debate in Parliament.
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- Lord Stevenson of BalmacaraLabour
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- My Lords, the work done by the noble Baroness, Lady Kidron, in joining the dots, as it were, between the original proposal and having a proper approach to children using the internet and all the other things they use, and the way they would get redress if there is a problem, has been a joy to watch. She has stuck at it like a terrier, she has not let Ministers off the hook, she has been firing off emails and phone calls from faraway places and causing their lives to be an absolute misery, but it is a good thing because we have got to where we need to be. As the noble Lord, Lord Clement-Jones, said, it was always a surprise that the Government did not want to include Article 18(2) as well as Article 18(1), because it completes the support for consumers of internet services, which the Bill sets out to do but for which there is a derogation and they have chosen not to exercise it. I am very glad about that, but perhaps the Minister can explain one thing that I did not quite get right in my mind as I was listening to him. The review is to check whether Article 18(2) would make it a more effective consumer measure than it is currently under the Bill as drafted—the Act, as it will be. It is not restricted to vulnerable people. The way it was expressed seemed to suggest that it would cover only other vulnerable people. In any case, children are not vulnerable: they are extremely interested, very wise and often sagacious about the internet but they are not vulnerable to it. They may well get themselves into vulnerable situations, in which case they need redress, through bodies such as child-specific agencies, but I do not think that was the intention. I would be grateful if that could be addressed. Secondly, a moment of levity flashed through my mind when the Minister was talking about the need for the Inland Revenue to track down where reservists had got to. I cannot believe that is the only way the Ministry of Defence keeps in touch with its reserve, but I do not dissent from this being a very good measure.
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- Lord Ashton of HydeCrossbench
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- My Lords, I am very grateful for the contribution of all noble Lords on this, especially the noble Baroness, Lady Kidron. It is very nice to be in her good books. The noble Lord, Lord Clement Jones, talked about the age-appropriate design code and when the Information Commissioner will get going. As he rightly said, the Bill has not come into force yet; nevertheless, we understand that the Information Commissioner is already setting the wheels in motion for a comprehensive age-appropriate design code and will launch a call for evidence imminently. During that process she will be seeking evidence and views on the content of the code in line with the points raised in the debate in this House and elsewhere. So I confirm what he suggested was the case; indeed, work is already being done. The noble Lord, Lord Stevenson, mentioned the focus of the code. In mentioning vulnerable people I was trying to bring him back to some of the points I think he made: I did not want anyone to get the impression that we were concentrating just on children—albeit they are very important—and their particular rights under the code. It will include vulnerable people, but also the way that it operates in general. Although children rightly have a special mention, we are also concerned with people who may have particular problems and may be vulnerable. I think this should exactly satisfy some of the things the noble Lord mentioned in previous debates. As for the Ministry of Defence, it does try to keep in touch. In fact, it is a duty of an ex-regular reservist to keep the MoD in touch with their whereabouts. Some 49%, I believe, do not do so: we want to use this information to keep in touch with the reserve for the security of the country and that is why we are doing this. I also point out that there are protections: the commissioners of the Inland Revenue have to give permission before information is disclosed to anyone else or elsewhere.
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- That this House do agree with the Commons in their Amendments 116 to 152.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendment 153.
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- Lord Ashton of HydeCrossbench
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- My Lords, this group of amendments covers issues that will be familiar to many noble Lords, as it primarily addresses concerns and issues raised in this House last autumn. The Government have remained committed to listening and to improving the Bill. I owe thanks to many noble Lords who brought these issues to our attention. Commons Amendment 155 would help businesses and other organisations ensure that their boardrooms and senior management levels are truly representative of the workforces they manage and the communities they serve. In November 2016, Sir John Parker published a report which showed that while 14% of the population identified as black, Asian or minority ethnic, only 1.5% of directors in FTSE 100 boardrooms are UK citizens from a minority background. More than half of the FTSE 100 boards are exclusively white. While significant progress has been made in recent years to improve the gender balance in the boardrooms of such companies, the severe underrepresentation of people from minority backgrounds needs to be addressed. Sir John’s report included a series of recommendations to improve racial and ethnic diversity in the boardroom. He encouraged companies to make better use of executive search firms to identify potential candidates and invite them to be interviewed for managerial vacancies. This amendment would therefore add a new processing condition to Schedule 1 to allow organisations to process personal data about potential candidates’ racial or ethnic origin in identifying suitable candidates for potential managerial positions. Previously when we discussed the Bill in this House, Thomson Reuters provided a very helpful briefing note setting out how it compiles reports on persons suspected of terrorism, bribery, money laundering, modern slavery and other illegal activities. It then shares this information with the banks to help them avoid engaging with such people and allow them to comply with their regulatory obligations and other internationally recognised guidelines. In response to support for the proposal on all sides, the Government committed to work with Thomson Reuters to bring forward amendments at a later stage of the Bill’s passage. Commons Amendment 158 is the culmination of this work. I am also pleased to introduce Commons Amendment 160, which would provide for processing by patient support groups, a concern well put by my noble friend Lady Neville-Jones. She spoke movingly on behalf of the patient support group Unique, which manages a register of patients suffering from very rare and sometimes life-limiting chromosomal disorders. Amendment 160 would add a new processing condition to Schedule 1 to provide Unique and groups like it with the legal certainty required for their vital work to continue. I am most grateful to her for her advocacy. Commons Amendments 162 and 163 relate to data processing for safeguarding purposes. These amendments respond to one tabled on the same issue by the noble Lord, Lord Stevenson, on Report in December. In response to that amendment, I made it clear that the Government were sympathetic to the points raised. These amendments would ensure that sensitive data could be processed without consent in certain circumstances for legitimate safeguarding activities which are in the substantial public interest. The unfortunate reality is that there still exists a great deal of uncertainty under current law about which personal data can be processed for safeguarding purposes. This has resulted, for example, in some organisations withholding information from the police and other law enforcement agencies for fear of breaching data protection law. With these amendments, the Government intend to address this uncertainty by providing relevant organisations with a specific processing condition for processing the most sensitive personal data for safeguarding purposes. Similarly, a number of other amendments in this group would extend necessary exemptions to certain regulators to ensure that data subjects cannot use data protection laws to undermine their regulatory work. Commons Amendment 178 would provide the Comptroller and Auditor-General of the United Kingdom, and his counterpart in each of the devolved nations, with an exemption from certain provisions of the GDPR where these would be likely to prejudice his statutory functions. Likewise, Amendment 179 would provide an exemption for the Bank of England from the listed GDPR provisions where these could inhibit its ability to exercise its functions. Amendment 183 would provide an exemption for the Scottish Information Commissioner, who regulates freedom of information rather than data protection. Amendment 185 would protect the work of the Financial Conduct Authority and the Prudential Regulation Authority. Amendment 186 would extend the exemptions in Schedule 2 to the Charity Commission’s functions under the Charities Acts of 1992, 2006 and 2011. The remaining amendments in this group would address more technical issues, ensuring consistency across the Bill. I beg to move.
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Baroness Neville-Jones (Con)Conservative- Quote
- My Lords, I thank my noble friend the Minister for the Government having carried these provisions in the Commons. More importantly, the patient support groups for which I spoke are very gratified because they regard these amendments as absolutely vital to their ability to carry on their important work. If I might say so, it is a very satisfactory outcome.
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- Lord PannickCrossbench
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- My Lords, I welcome Commons Amendment 188 on the confidentiality of legal advice. As the Minister knows, a concern has been raised, long after the 11th hour, about the position of arbitrators. The concern is that the Bill addresses the data protection obligations of judges and lawyers but does not address the data protection position of arbitrators. Arbitration is of course an important legal service, in which this country leads and provides services to the world. All I can do at this stage is to ask the Minister and the Bill team whether they will reflect on this concern, which has been raised not just with me but with him. If he thinks that there is any basis for concern, will he consider using the very extensive powers conferred under the Bill to bring forward regulations to address the issue?
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- Lord Clement-JonesLiberal Democrat
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- My Lords, as the Minister made clear in his lucid introduction, this is a really significant group of amendments. It is very good to see that some of the work that was done in this House has come back in the form of amendments. In particular, the Minister will remember that it was my noble friend Lord McNally who raised issues around Thomson Reuters in the first place. However, I know that there will be considerable pleasure in the financial services industry, which is very concerned about such things as money laundering, anti-corruption measures and so on, and making sure that it can process data in pursuance of achieving those important goals. I congratulate the noble Baroness, Lady Neville-Jones, on her campaign, which has clearly borne fruit here. I had not heard what the noble Lord, Lord Pannick, had said but there seems to be a bit of a hole in the Bill if that is the case. I can certainly testify to the fact that arbitrators are an incredibly important part of our judicial system. Indeed, within it they are one of our global competitive advantages; therefore if anything is done that is to the detriment of our arbitration system, it would be really quite serious.
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- Lord Stevenson of BalmacaraLabour
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- My Lords, I too congratulate the Government on bringing forward these amendments. They cover a wide range but, as the noble Lord, Lord Clement-Jones, said, they are an important part of the actual mechanics and workings of the system once it is going. We will certainly need a few successes where people believe that something has been done to make sure that their lives are easier, rather than more difficult, as a result of this legislation. Even your Lordships’ House will suffer quite considerably in the processing tasks that it will have to carry. I seem to remember that, after an informal chat with the Minister, we were going to get a statement from him about how he felt about that and how things might progress. Maybe I am pushing him a little too far; perhaps we will get a letter or something about it later. I echo the congratulations to the noble Baroness, Lady Neville-Jones, who fought an understated but effective campaign on an important area, which I am glad to see was picked up. I thought the diversity amendments were the sort of thing that could easily have been dropped off for being too complicated and difficult. This is possibly not the right Bill but it is really important that we got them in here. There could have been use made of some provisions by employers and others who did not want to face up to the reality of the world today, saying that they would not be able to process data in a way that would allow us to see whether progress has been made on this. We on the Labour Benches were also consulted by Thomson Reuters, which felt that there was a bit of a lacuna in some things it was asked to do about money laundering. I am glad that the Bill team finally came round on that and agreed that there was something there. It brought forward a measure. I am particularly pleased about safeguarding, which was quite a late addition to Committee. We brought it back on Report. It was obviously something that needed much wider consideration. Again, I wondered whether there would be time to bring it through. It has been possible to do so. We now have a very satisfactory approach to this. It covers not just sports, which was the area we raised, but the wider consideration of vulnerable people in clubs and in health and welfare situations where there needs to be consideration of what process and steps could be taken if suspicions were raised. We do not have to read the papers today to realise how damaging that can be if it is not caught quickly. We welcome the amendments.
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- Lord Ashton of HydeCrossbench
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- My Lords, I am grateful for all those comments. It is nice that in the last group I will handle on it—touch wood—I leave the Bill in a glow of good will. I am particularly pleased that I can agree with the noble Lord, Lord McNally, and that we have been able to respond to some of the concerns and points raised in this House. In many ways, the Bill has been an object lesson of discussion on a very technical Bill. We have made progress. I certainly acknowledge and am very grateful for the support and co-operation I have had from both opposition Front Benches.
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- Lord McNallyLiberal Democrat
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- As a little footnote, which might give encouragement to others, I first raised the Thomson Reuters matter because it sponsored a conference at the Guildhall well over a year ago about the coming of the GDPR. I went along to find out about it. I and the other Benches raised this from that. It has now ended up in the Bill. It is an encouragement to companies that sometimes think that legislation is a mysterious place that, by taking little bit of effort to put the case and extend it, they can have real influence.
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- Lord Ashton of HydeCrossbench
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- I am grateful to the noble Lord. That brings me nicely to the point made by the noble Lord, Lord Pannick, about arbitrators. The noble Lords, Lord Clement-Jones and Lord Stevenson, mentioned the importance of arbitration to the economy of this country. I am only too well aware of it from my background in insurance. London has a very well-respected legal system, but the arbitration system is linked to that. We certainly would not wish in any way to hinder it. Contrary to what the noble Lord, Lord McNally, did, the people who brought this up seemed to do so at the last minute. I slightly wonder how they managed to miss this trick, if it is so obvious, for the two years that the GDPR has been in place, let alone—
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- Lord PannickCrossbench
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- Could I suggest to the noble Lord that they were too busy arbitrating?
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- Lord Ashton of HydeCrossbench
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- They should have hired a lawyer. The point is that it is a perfectly valid point. We have sought to replicate in the Bill, as far as possible, the existing provisions relating to legal professional privilege. We had several discussions about that in the 1998 Act, including the relevant exemptions to rights and obligations for personal data. I cannot help but notice that the Arbitration and Mediation Service, given that we are trying to replicate as far as possible existing provisions, appears to have been operating without undue burden for the last 20 years, but I am certainly prepared to undertake to the noble Lord, Lord Pannick, that we will look at that with a view to making sure that this is not a serious problem. We certainly have not been able to do it in time. I can confirm to him that, if there is a problem, the Bill contains regulation-making powers to address this concern. The only thing I can say on that is that, quite rightly, those regulations would have to come before both Houses of Parliament. If there is a concern he will be able to address it later. The noble Lord, Lord Stevenson, is quite correct that we talked about me making a statement or addressing concerns about the individual application of the GDPR and the Bill to Peers. I assumed I would do so if it was necessary and if the subject came up, which, luckily, it has not. Just to be clear, it is not just that Peers and other citizens of this country are suffering under the GDPR, although they might have obligations that they were not aware of before and, I agree, certain extra ones because the GDPR has direct effect; it also greatly increases individual subject rights. It makes sure that individuals’ personal data, in particular sensitive personal data, is better protected in law and by a regulator, who, thanks to your Lordships’ agreement, has real power to make sure that the data regime is obeyed. I believe that the House authorities have issued a statement to all Peers. Of course, my department is there to address this. The first avenue that Peers should use for the individual circumstances is the House authorities.
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Baroness Neville-Rolfe (Con)Conservative- Quote
- Can I press my noble friend a little further on the issue of what individual Peers and Members of Parliament should do? There was an earlier discussion on whether some arrangements might be made so that data protection rules can be followed but the burden would not be unreasonable. I also take this opportunity to thank my noble friend for these many amendments which are grouped together, on diversity through to financial services. It has been a model of good working.
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- Lord Ashton of HydeCrossbench
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- I am grateful for that. When my noble friend spoke of pushing me further, I am not completely clear what she wants me to do. It is not right for me to opine on individual cases. I think we are talking about Peers in their roles as Peers. Each individual Peer has to discuss that in the light of their individual circumstances. All I would say is that if noble Lords are dealing with special categories of data and personal data, they will have to be aware of the obligations put on them by the Bill and the GDPR. The House authorities are there to advise, as is the Information Commissioner. They will have to do so. In my case, for example, I do not anticipate that in what I do as a Peer, as opposed to a Minister, I would have to pay a fee as a controller, if that helps.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendments 154 to 173.
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- Baroness Williams of TraffordConservative
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- That this House do agree with the Commons in their Amendment 174.
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- Baroness Williams of TraffordConservative
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- My Lords, these amendments relate to the immigration exemption in paragraph 4 of Schedule 2, which was debated at some length during the passage of the Bill through this House. It may assist the House if I briefly restate the case for this provision. The Bill and the GDPR extend and strengthen the rights of individuals, giving them easier access to their data and greater control over its use and processing. This is something we can all welcome. However, it is necessary to balance such enhanced rights of data subjects with other competing interests. The Bill therefore provides mechanisms to ensure that data rights cannot undermine investigations by law enforcement agencies, regulators and others. For the same reasons, the Bill makes provision to protect the integrity of the immigration system; for example, to prevent the release of information which would undermine imminent enforcement action. As I have previously explained, the immigration provision is limited in nature. It does not allow the Home Office—or, indeed, any other controller—to set aside all the safeguards in the Bill; rather, it allows a number of specific rights to be restricted on a case-by-case basis and only to the extent to which giving effect to those rights would be likely to prejudice the maintenance of effective immigration control in an individual case. Decisions will also be subject to oversight by the Information Commissioner and, ultimately, the Information Tribunal. On Report noble Lords supported the retention of the exemption by a majority of 130. Last week the House of Commons similarly supported the inclusion of the exemption in the Bill by a clear majority of 28. None the less, it is of course right that the exemption should be as tightly drafted as possible. The Government firmly believe that unless there is a compelling reason to the contrary, data processing should always be fair and transparent and it should not be possible to collect data for one purpose and then to retrospectively apply a policy of processing for further, incompatible purposes. It was always the Government’s intention that processing for immigration purposes should have to meet both these principles. But, on reflection, we agree that the provisions in paragraph 4 of Schedule 2 left room for doubt as to the intended approach. Therefore, Commons Amendments 174 and 175 further narrow the exemption to put the matter beyond doubt. We are also committed to reviewing the operation of the exemption in the light of experience 12 months after these provisions come into force. To inform the review we would naturally welcome the views of interested parties, such as the Immigration Law Practitioners’ Association. Clause 16 would enable us to narrow the scope of the exemption still further should the review conclude that it would be appropriate to do so. I look forward to hearing what the noble Baroness, Lady Hamwee, has to say about her Amendment 175A, but for now I beg to move. Amendment 175A (as an amendment to Amendment 175)
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Baroness Hamwee (LD)Liberal Democrat- Quote
- My Lords, I do not think I am going to surprise the Minister but I will go through my points on Amendment 175A. The short version is that among the double negatives, paragraph 4 enables the Home Office and others to refuse a subject’s access request in respect of data relating to “effective immigration control”. I will not muse on what “effective” might mean in this context this evening. There are exceptions to the exemption, as the Minister has said, but they do not go to the heart of the problem, which is that if the Home Office uses the exemption, someone challenging a Home Office decision will not be able to check that the Home Office has the correct information about him. For instance, an application may be refused and the correct information established only if the matter goes to appeal. I discovered during the passage of the Bill that at the start of a case solicitors routinely put in a request to the Home Office to ensure that there is not a crucial error in the information it holds about their client. That must save time and effort—and, indeed, money and anxiety—on both sides. It seems a matter of common sense to be able to do so. I have been puzzled throughout as to why the Government consider this exemption necessary. If it is because there may be an issue of criminality, paragraph 3 provides for this, including “the prevention … of crime”, if the Home Office believes that someone might be about to commit an immigration offence. I understand from a discussion with the Minister last week, for which I am grateful to her and her officials, that the Government do not want to characterise all applicants to the Home Office for immigration leave as criminals, but I really do not think that that is an answer. As the Minister knows, and the House will know, I would like to see this paragraph out of the Bill altogether or, at a poor second best, not brought into effect until work has been done with practitioners—lawyers and the relevant NGOs—as to its operation, but we all know about the procedural rules and those mean that I have to confine myself to the amendment made by the Government in the Commons.
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- Baroness Williams of TraffordConservative
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- I thank the noble Baroness for setting out the rationale for Amendment 175A. I wholeheartedly endorse the sentiment behind it— namely, that the data protection principles must underpin the processing of personal data held by the Home Office for immigration purposes. I also unreservedly support the notion that the Home Office needs to abide by the highest standards required by the GDPR and the Bill and to ensure that its staff are properly equipped, including through the appropriate training and guidance, to ensure that the department collectively fulfils its statutory responsibilities when it comes to processing people’s personal data. We want our staff to recognise that new data rights should be seen as an opportunity to improve how we collect, process and use other people’s data and respond to customers’ requests. I am grateful to the noble Baroness for giving me foresight of her specific questions. The first concerned the exemption not being used in a blanket way to deny all requests for files concerning immigration held by the Home Office. This will be the case regardless of the believed immigration status of the client. We have been clear, and guidance will be clear, that the exemption can be used only on an individual basis and on a right-by-right basis—that is, a controller can exclude only those rights that would cause the prejudice test to be satisfied. Further, we will withhold only the information that could be likely to cause the prejudice. All other data is currently—and will carry on being—released. The noble Baroness’s second question concerned the exemption not being routinely applied or applied without meaningful individual assessment in circumstances where the Home Office seeks to acquire data collected by essential public services from other government departments, such as the Department for Education. Where a right is to be restricted, there has to be evidence which a data controller can identify that has satisfied the likely-to-prejudice effective immigration control test and the test that it is still a live concern. That is irrespective of where or from whom the data was gathered. The noble Baroness’s third question concerned the exemption not being routinely applied or applied without meaningful individual assessment in circumstances where a person or their legal representative is requesting data held by the Home Office so that they can regularise their immigration status or progress an immigration claim. We have been clear—and our guidance will be clear—that a right can be restricted only where there is a risk to the maintenance of effective immigration control. If a person is seeking to regularise their status, it is incumbent upon us to facilitate their efforts, and we strive to do so. The noble Baroness’s next question was about the exemption being applied solely by the Home Office and not by government contractors carrying out immigration control functions. The exemption may be used and applied by those who work with us. However, the same checks and balances would be applicable in all instances. The noble Baroness also asked for the exemption to be used only in cases where the Government have a clear and specific reason to believe that the release of data would undermine immigration control in relation to that specific person. That is correct—and it is what paragraph 4 of Schedule 2 provides for. The next question the noble Baroness asked was about undermining immigration control not including an individual accessing data that may show why they may have reason to be allowed to stay in the UK. We have been clear that, where a person is seeking to regularise their status or appeal a decision, we will disclose all the data we hold to assist them in that and always give the full basis of why a decision has been made to facilitate any appeal. The noble Baroness rightly asked, for the above reasons, whether it would be used only in a very small number of cases. The answer is yes. We anticipate that it will be a minority of cases and it is a rebuttable assumption that all rights apply to all data subjects. The noble Baroness’s final question was about the exemption not being applied to British citizens or migrants who are lawfully resident in the UK. The exemption is not designed to apply to those here lawfully. It could, however, be used if a lawful UK resident was involved in an attempt to cause prejudice to the maintenance of effective immigration control—for example, by sponsoring someone in the knowledge that they did not qualify to be here. I hope that I have answered in full the noble Baroness’s questions. I thank her again for providing me with sight of her questions.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendment 175.
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- Lord Ashton of HydeCrossbench
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- That this House do agree with the Commons in their Amendments 176 to 282.
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