Online Safety Bill

Lord Faulks Excerpts

Report stage
Wednesday 12th July 2023 Lords Chamber

I am pleased to hear from the noble Lord that he will not divide the House, because to do so would be to hijack this important legislation, in which we should all take great pride, and turn it into something it was never intended to be.

[Lord Faulks (Non-Afl)]

My Lords, I declare my interest—although I think it has already been declared for me by the noble Lords, Lord McNally and Lord Lipsey—as the chair of the Independent Press Standards Organisation.

We had this debate in Committee, although not with the same actors; I am glad to see both of them now back in their places and restored to health. However, I cannot welcome all the comments they made, particularly not those of the noble Lord, Lord Lipsey, critical as he was of IPSO. I should tell the House that IPSO is not on the side of the press. It is not on anybody’s side: it is an independent organisation for the regulation of the press that regulates, by circulation, some 95% of both national and regional newspapers.

The noble Lord, Lord Lipsey, spoke of how ineffective we were as an organisation and was rather disparaging about the reviews of IPSO’s governance and operations. I ought, at the very least, to maintain a defence of Sir Bill Jeffrey, a very distinguished civil servant in the Ministry of Defence who recently carried out a report on IPSO. I hope that Members of your Lordships’ House, particularly the noble Lords, Lord Lipsey and Lord McNally, will read the report to see in what ways they consider IPSO is still not showing its independence, but I would very much defend Sir Bill Jeffrey’s independence and the way in which he approached the task. I think it unfortunate that he was attacked in the way he was by the noble Lord. I give way.

[Lord Lipsey (Lab)]

Does the noble Lord agree that a report which gives as part of its evidence conversations with a sample of precisely 12 complainants cannot be taken seriously?

[Lord Faulks (Non-Afl)]

The report must be read as a whole. I do not accept at all what the noble Lord has said. It is worth visiting the IPSO website, because he was very disparaging about the number of complaints that were upheld. IPSO is very transparent; its website shows all the decisions that were reached and the way in which they were reached. I invite those who doubt its independence to look at the constituent elements of those who are on the complaints committee and the board, and all the published decisions, in order to decide whether IPSO is indeed in the pockets of the press, which seemed to be the suggestion made by both noble Lords.

Of course, the approved regulator, Impress, has very little work to do. I am sure it does its work highly conscientiously. The code by which it regulates is remarkably similar to the editors’ code, which is produced by the industry, it is true, with contributions from all sorts of people. It varies from year to year. There is very little criticism of the editors’ code. It provides a very sensible and balanced view to make the press accountable, allowing the complaints committee to decide whether there has been a violation of the code.

The noble Lord, Lord Lipsey, said that at last it has found the press to be in breach of that code in the recent complaint. It was interesting that the complaints body which I chair was alleged to not be independent of the press. It was roundly criticised by the press for coming to that decision—by the Times, the Telegraph and the Daily Mail. At the same time, it is said that the organisation which I chair is not independent. It is of course independent and will continue to be so.

As for Section 40, before I had anything to do with press regulation, I did not like it. As a lawyer, the idea of somebody having a free hit against anybody is unattractive. Whatever you think of press regulation, I do not think that Section 40 should commend itself to anybody. As they have promised for some time, the Government are quite right to include it in the media Bill, which is to come before your Lordships’ House in due course. It has been a sword of Damocles hanging over the industry. It is not helpful, and I hope that it is repealed. I understand that the Labour Party and perhaps the Liberal Democrats will bring back something of that sort. I understand they may be opposing it when it comes into the media Bill, but that is a matter for them in due course.

Of course, the press should be accountable. Of course, it should be properly regulated. The idea of an independent regulator is to provide reassurance that it is being regulated, as opposed to, until this Bill becomes law, social media—which is not regulated—which provides a source for news which is considerably less reliable than all those newspapers which are subject to regulation.

This is not the occasion to go into further debates about Leveson, but it is perhaps worth rereading the Leveson report and the conclusions that Sir Brian reached—which I have done recently. It must be seen, as all reports, as very much of its time. It is particularly interesting to see the extent to which he promoted and advanced the cause of arbitration. Alternative dispute resolution is very much at the centre of what the legal profession as a whole, and Sir Brian Leveson and his committee in particular, advance as a much better way to resolve disputes. There is an arbitration scheme provided by IPSO, as noble Lords and the House may know. Of course, that is an option which we would encourage people to use—consistent with what Sir Brian and his committee recommended. It is not a substitute for going to court, and if people want to, they should be allowed to do so. However, I think there is a case for courts considering having directions whereby, at first, somebody seeking relief in the court should show that they have exhausted alternative remedies, including alternative dispute resolution. I am in favour of that.

On the idea of being Leveson-compliant—I do not think Sir Brian Leveson particularly likes that expression. He made various recommendations, many of which are reflected in what IPSO does now. I understand there is a great deal of history in this debate. I remember the debates myself. No doubt, we will return to them in due course, but I think we should fight today’s battles, and not the battles of 10 years ago or longer. I think the press is much more accountable and responsible than it was. Of course, as parliamentarians, we will carefully watch what the press do and consider carefully whether this exemption is merited. However, I do not think that this amendment is justified and I hope that the Government do not support it.

[Lord Allan of Hallam (LD)]

My Lords, I want to bring the tone of the debate down somewhat to talk about government Amendments 158 and 161 in a rather nerdier fashion. I hope that the House will be patient with me as I do that.

The Minister said that these two amendments introduce some “minor changes” that would make the Bill work as intended. I want to explore whether they are rather more significant than the Minister has given them credit for, and whether they may have unintended consequences. As I understand it, the purpose of the amendments is to ensure that all forms of video and audio content, in long form or short form, whether originally broadcast or made exclusively for social media, will now benefit from the news publisher exemptions.

Particularly thinking about this from a social media point of view—the noble Lord, Lord Faulks, just made the point about news publishers such as newspapers—when we have been looking at the Bill and the news publisher exemption, we have been thinking of the BBC and newspapers. We have been thinking a lot less about people who regard themselves to be news publishers but produce things exclusively for social media—often in a clickbait fashion, using a lot of short-form material. As I read these amendments, they are saying very clearly that this kind of material will benefit from the news publisher exemption. That opens up a whole series of questions we must ask ourselves about whether that will have unintended consequences.

Looking at this in the context of what it takes to be registered as a news publisher in Clause 50, the noble Viscount, Lord Colville, referred to the fact that there is an intention and a view that Clause 50 should be kept broad so that people can register as news publishers. Clearly, that is good for media diversity, but if we look at those tests, they are tests that I think that a lot of organisations could pass. We must ask ourselves who might try to establish themselves as a recognised news publisher. They would need to have an office in the United Kingdom. They would also need to apply our standards code, but Clause 50(6)(b) says that the standards code can be their own standards code—it does not have to be anyone else’s.

I am not going to get into a debate about who should be the press regulator; that is for other noble Lords. As I read it, these internet services could pass the Clause 50(2) test by establishing the office and meeting a few basic requirements, then under Clause 50(6)(b) say, “I’ve got a standards code. It’s my standards code. I’ve written it—on the back of an envelope but it’s a standards code”. Then we need to think about who might want to take advantage of that material. My reading of the Bill, thinking about intention, is that services such as Breitbart News—which is not my cup of tea, but is a recognised news publisher—would pass the test and would be able to establish themselves as a news publisher in the UK, benefiting from the exemptions. Whether or not I agree with it, I can see that is a reasonable unintended outcome.

My concern is about other services, such as Infowars, which I am sure everybody is familiar with. It is a service that has caused untold harm and has been sued in the US courts for defamation—which is a pretty high bar. Infowars has clearly caused so much harm that it has found itself on the wrong end of defamation lawsuits in the United States. I do not think it should in any way be our intention that a service such as Infowars should be able to benefit from the special privileges granted to news publishers under the legislation. I know that it is hard to draw lines, and I am not expecting the Minister to say at the Dispatch Box exactly where the line should be drawn. However, I think that without citing examples such as that, we risk not testing the legislation to destruction—which is precisely what we should be doing here—and ending up in a scenario where we have created a news publisher exemption that could be taken advantage of by the wrong organisations. Someone has to draw a line and make a classification.

As we create this news publisher exemption, it is incumbent on us to describe it to people out there in vernacular terms they would understand. My understanding is that the BBC, the Daily Mail, Breitbart News—all those are in. We expect them to be able to pass the Clause 50 test and we have no problem with that. Russia Today, Infowars and a whole host of other services that brand themselves news but are incredibly harmful and destructive to society and individuals—we would want them to fail the Clause 50 test.

I hope the Minister will at least acknowledge that there is going to be a challenge around bad services run by bad people claiming to be news publishers under Clause 50. I hope he will agree that it is not our intention to give publisher privileges to services such as Infowars that cause so much harm to society.

Online Safety Bill

Lord Faulks Excerpts

Committee stage
Tuesday 23rd May 2023 Lords Chamber

At the end of the day, this should not be a press regulation Bill, and it is wrong to try to do that. It is a Bill about the responsibility of the vast unaccountable, unregulated platforms which disseminate so much dangerous and harmful content without anyone having recourse, as we have heard powerfully already this afternoon, and not a Bill about the publishers who produce verifiable, trusted journalism which is the lifeblood of a democracy. We confuse the two at our peril and at the cost of the free press, which I know all your Lordships hold dear.

[Lord Faulks (Non-Afl)]

My Lords, much of what I would have said has been said by the noble Lord, Lord Black, so I will make my contribution brief. Elegantly dressed up as these amendments were by the noble Lord on behalf of the noble Lords, Lord Lipsey and Lord McNally, to whom I also say get well soon, they are in fact intended to change the way the press is currently regulated. I declare my interest as chairman of IPSO, a post I have held since January 2020. IPSO regulates 95%, by circulation, of the printed press, and that includes online versions of newspapers.

Noble Lords will remember the Leveson inquiry, following the discovery of unacceptable press practices including phone hacking. Parliament’s response was to create the Press Recognition Panel and the concept of an approved regulator. It was not state regulation, but nor was it the status quo ante. Only one regulator has sought and attained approved status: Impress. The Press Recognition Panel was chaired by David Wolfe KC, who provided a quotation to the noble Lord. Impress is funded by the estate of Max Mosley. It does not regulate any of the main national newspapers, which have either, like the Guardian, elected for self-regulation, or, like most of the others, selected IPSO as their regulator. Now, clearly it would be unattractive for me to extol the virtues of IPSO, but to its critics I recommend reading the newly published independent external review, written by Sir Bill Jeffrey, former Permanent Secretary at the MoD. I think readers would generally be reassured by the report.

Section 40 of the Crime and Courts Act was intended as a stick—or was it a carrot—to drive newspapers into the arms of the approved regulator. Even when I had nothing to do with press regulation, I did not like that provision, which has hovered over the newspaper industry like the sword of Damocles. It has never been brought into effect, and I welcome the fact that the Government now intend to repeal Section 40 via the media Bill—although I accept, as the noble Lord, Lord Black, said, that there may be a debate about the proper scope of regulation, and indeed of Section 40, when that comes before Parliament.

As I understand these amendments, regulation of the largest websites would prospectively be the subject of the Online Safety Bill’s regulatory regime. I echo comments already made that this extraordinarily significant Bill is not primarily directed at press regulation at all. It is intended by these amendments that for newspapers to qualify for the recognised news publisher status, they would have to be a member of an approved regulator. This is plainly an attempt to dismantle the current system of press regulation.

It seems something of an irony that newspapers that are regulated by IPSO or even self-regulated have accountability, however imperfect, whereas, pending the passing of the Bill, internet platforms are wholly unregulated—yet it is sought to pass off some of the regulation of newspapers to Ofcom. Is Ofcom ready, willing or even equipped to replicate the complaints system that currently obtains? I think Ofcom would have quite enough to do. Is its horizon-scanning model even appropriate for press complaints? It is very early days to increase the scope of Ofcom’s rule. The Government have promised a review of the regulatory framework in two or three years; I suppose then it might be possible to assess whether Ofcom’s role should change or be enlarged. Until then, it seems inappropriate to do so.

I suggest that the current system of press regulation should not be the subject of further statutory provision at this juncture, or indeed at all. There have been some deplorable press practices in the past, but the traditional printed press in this country, albeit a much-reduced animal with diminished circulation and advertising revenues, nevertheless has some real strengths. A free, vigorous and challenging press is part of a functioning democracy. We should be very wary of giving a Government, of whatever colour and by whatever means, greater power to control it.

[Baroness Grey-Thompson (CB)]

My Lords, I speak in favour of Amendments 124, 126 and 227 to which my name is attached. I will reserve my comments mostly to the Bill’s loophole on newspaper comment sections.

These forums would qualify as social media platforms under the Bill’s definition were it not for a special exemption in Clause 49. They have been found to host some of the most appalling and despicable content online. I will paraphrase some examples so as not to subject the Committee to the specific language used, but they include anti-Semitic slurs in comments appearing under articles covering a violent attack on a synagogue; Holocaust denial; and speculation that Covid was created and spread by a secretive global cabal of powerful individuals who control the world’s leaders like puppets.

Some of the worst abuse is reserved for women in public life, which I and others in your Lordships’ House have personally experienced. In an article about a female leader, comments included that she should be struck down or executed by the SAS. Others commented graphically on her appearance and made disturbing sexual remarks. Another woman, Professor Fowler—who the noble Lord, Lord Clement-Jones, has already discussed —was described as having a sick mind and a mental disorder; one comment implied that a noose should be prepared for her. There are many more examples.

Comment sections are in too many cases badly regulated and dangerous places for members of the public. The exemption for them is unwarranted. Specifically, it protects any social media platform where users make comments in response to what the Bill describes as “provider content”. In this case, that means comments posted in response to articles published by the newspaper. This is materially no different from user exchanges of any other kind and should be covered just the same.

The Government have previously argued that there should be a distinction between newspaper comment sections and other platforms, in that other platforms allow for virality because posts that are liked and retweeted do better than the others. But this is exactly the same for many modern comment sections. Lots of these include functionality to upvote certain comments, which can then rise to the top of the comment section on that article.

There are estimated to be around 15 million people on Twitter in the UK—I am one of them—but more than twice that number read newspaper websites every month. These comment sections are social media platforms with the same power, reach and capacity to cause harm as the US giants. We should not treat them any differently on account of the fact that they are based out of Fleet Street rather than Silicon Valley.

There are some concerns that the Bill’s requirements would put an undue burden on small organisations running comment sections, so this amendment would apply only to organisations with an annual turnover in excess of £100 million. This would ensure that only the largest titles, which can surely afford it, are required to regulate their comment sections. Amendment 124 would close the comment section loophole, and I urge the Government to act on it.

It is a great shame that, due to the lateness of the hour, my noble friend Lady Hollins is unable to be here. She would strongly support Amendment 126 on several points but specifically wanted to talk about how the exemption creates double standards between how the public and news publishers are treated, and puts platforms and Ofcom in an impossible situation over whether newspapers meet vague criteria to access exemptions.

I also support Amendments 126 and 227, which would help protect the public from extremist and other dangerous websites by preventing them accessing the separate media exemption. In all these matters, we must not let overbroad exemptions and loopholes undermine what good work this Bill could do.

Freedom of Speech

Lord Faulks Excerpts

Friday 10th December 2021 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, it is a great pleasure to follow the extremely woke noble and learned Lord, Lord Brown of Eaton-under-Heywood. Free speech is extremely important to all of us. I declare a particular interest as chair of the Independent Press Standards Organisation, which regulates the vast majority of what I might call the traditional printed press and its online manifestations. As an independent regulator, I am careful not to give my opinions on the issues of the day too often, for fear that this might be perceived as showing a lack of independence.

We in IPSO are lucky enough to have a very good communications department, which always advises me against offering my views if at all possible—wise advice, I am sure. This week, I said to our head of communications that I was planning to speak in a debate on free speech. A worried look crossed her face and she said to me, “You’ll have to be very careful what you say”. I decided to reject her advice but I will not speak about the important matters raised by the noble Baroness, Lady Jenkin, such as free speech in universities, the balance in the Human Rights Act between freedom of speech and Article 8 or the difficult issues with which the Law Commission has had to grapple. Rather, I will focus on the important role of journalism of what one might call the traditional sort.

The low point of the reputation of our press—it has had plenty of low points—was probably the practices that led to the Leveson report. Better regulation was one of the main takeaways from Leveson and the threat of state regulation of the press hovered, which worried most of us profoundly. More than seven years have passed, and the threats to the traditional press have altered. I hope that press regulation has become better; judging by the volume of complaints that IPSO receives, it is better understood by those who wish to complain. Newspapers are, on the whole, much better behaved.

Covid presented a real challenge to everyone, not least the newspaper industry. It has just about survived, so far, but there was a major decline in advertising revenue and circulation. Newspapers had to cope with the real challenge of what was truthful and accurate in reporting about Covid. IPSO has just published a report based on its analysis of how the press performed and responded to various complaints. It shows the press in an extremely good light and emphasises the value of good journalism.

The real threat to the traditional press, and thus to free speech, comes from social media, mentioned by so many noble Lords. I entirely accept the most reverend Primate’s observation that it has provided a voice for those who do not often have one but, too often, it is unaccountable, often defamatory, recklessly damaging to reputation and damaging to the interests of vulnerable members of society. Too many of us were initially enthralled by social media, I fear. Compare the position of the traditional press, which is curated and regulated—I hasten to add that newspapers are not always happy with the decisions of the regulator—with that of social media, where news is often stolen from other sources, including local news, which is an important and dwindling asset. Editing is based on algorithms geared not necessarily to establish truth or accuracy but for commercial ends.

The Online Safety Bill has a lot of heavy lifting to do in this regard. It is innovative and will not be perfect, but I am excited to read what the committee has suggested. In the course of considering the very laudable aims of this Bill, we should not let perfect be the enemy of good. This could witness a real sea change in the attitude to freedom of speech through the media.

Of course, freedom of speech has never been an absolute. It is what my lecturers at university used to call a residual right, but there have even been challenges to what the first amendment of the United States constitution means. As pointed out by the noble and right reverend Lord, Lord Harries, traditional journalism can involve enormous risks to journalists, not just in reporting from conflict areas but in speaking out against dictatorial regimes. However, it is a central part of what we regard as valuable democratic values. Therefore, let us respect the interests of free speech served by journalists doing their job in a situation where they are properly regulated and accountable. It is a valuable contribution that we should not lose sight of.

UK Journalism (Communications and Digital Committee Report)

Lord Faulks Excerpts

Wednesday 13th October 2021 Grand Committee

[Lord Faulks (Non-Afl)]

My Lords, I join with others in congratulating the noble Lord, Lord Gilbert, and his committee on this excellent report. As well as the report, I also had the pleasure of reading much of the evidence that was given to the committee, which added a great deal of texture to the comments the report contained. Apart from as a consumer of journalism and a legislator, I hardly need to declare my interest as the chairman of IPSO, which has been much maligned already in this debate. It is of course tempting to enter a sturdy defence of IPSO into this debate, but I do not want to divert from the real issue, which is the future of journalism. Perhaps I will have the opportunity to convince the noble Lords, Lord McNally and Lord Lipsey, of the virtues of IPSO in the “last-chance saloon”.

I think and trust that newspapers in the United Kingdom are better than they were when Leveson looked at the standards of the press. IPSO regulates 90% of national newspapers by circulation and almost all local newspapers. We have had 100,000 complaints in the last seven years. I do not consider that to indicate a failure by journalists or editors; most of the complaints are outside our jurisdiction or do not violate the editors’ code. Rather, I would hope that this is an indication that consumers value regulation.

The product that a reader of conventional newspapers has is regulated and curated by editors, but newspapers, and thus journalists, are now painting on a much-reduced canvas. Most people consume their news via social media—an area untouched by Leveson. There is no regulation and the curation of content is largely by algorithm. The absurdities that can result from algorithms was well illustrated by Peter Wright, in his evidence to this committee, and by the noble Lord, Lord Hague, in his article in the Times yesterday. Do noble Lords think that algorithms have much to do with the search for truth in a democratic society, or are they designed for the benefit of advertisers?

The online safety Bill is full of good intentions. I endorse the recommendation that it should include a mandatory bargaining code, for the reasons that the noble Lord, Lord Gilbert, gave. It is pioneering legislation, and all parliamentarians should give it support. Whether it will deal with the alarming practices employed by, for example, Facebook, described by Frances Haugen in her evidence to Congress is, however, rather doubtful.

Diminishing circulation and advertising revenue have represented a major threat to newspapers, and thus to journalists. Covid has of course accelerated this trend, although, in my view, journalists have done well in the course of Covid, and IPSO intends this autumn to publish a paper describing the journalistic response to the pandemic.

In addition to the danger so well described in this report, I reiterate the problems that face local newspapers, for all the problems of access to news described by the noble Lord, Lord Vaizey. Nine hundred local media titles written by quality journalists find their way to 40.6 million consumers via print and digital channels, but the BBC—much unfairly maligned, I hasten to add—is the largest online publisher, driving away some commercial news producers. Owen Meredith, the chief executive of the NMA, put it rather crudely, perhaps, but forcefully in an article in the Times the other day headlined “Local media need protection from the predatory BBC”.

This report makes a number of truly excellent suggestions. The future of journalism is of concern to all of us. I congratulate the committee of the noble Lord, Lord Gilbert, I very much congratulate the Minister on his appointment and I look forward to working with him and the committee in helping maintain the high standards of journalism that we have come to expect and will very much need in future.

Cairncross Review

Lord Faulks Excerpts

Thursday 6th February 2020 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I, too, am grateful to the noble Baroness, Lady Kidron, for initiating this debate. I should declare an interest as the chairman from the beginning of this year of IPSO, the Independent Press Standards Organisation, which regulates 1,500 print titles and 11,000 online titles comprising 95% of national daily newspapers—by circulation—and the majority of local and regional newspapers.

IPSO contributes to standards in journalism by two principal methods. It does so, first, by responding to complaints and resolving or adjudicating in them in accordance with the editors’ code. It has the power to issue private advisory notices and to initiate standards inquiries in appropriate circumstances. The second principal area of work is in relation to standards. We have published guidance in a number of areas; for example, the reporting of suicide and the reporting of major disasters in the wake of the Kerslake report on the terrorist attack at Manchester Arena.

The Government’s response to the Cairncross Review defers the treatment of a significant number of issues. We may have to wait for the online harms Bill, the CMA investigation into the relationships between online platforms and digital advertising, and the Furman review.

IPSO believes that the sustainability of high-quality journalism relies significantly on consumers’ ability to identify it. It was in this context that IPSO launched its IPSO mark, a visual symbol that can be used by all our member publications to show their commitment to professional standards and to a curated, edited and regulated product. It is something of an irony that there are those who criticise the quality of regulation in relation to the conventional printed press yet say remarkably little about the need for regulation of the vast quantity of information or so-called news that can be accessed online without any form of regulation or quality assurance.

IPSO is pleased that many initiatives have been launched better to educate and inform the public about fake news and the potential harms involved in using social media, and it applauds the work done by a number of bodies to address this problem.

IPSO believes that it can make a major contribution to UK journalism. As a body, it has greater powers than its predecessors. In particular, it has required 20 front-page corrections and offers low-cost arbitration to those who might have taken a paper to court but were unable to do so. All this should help to produce journalism of a higher quality and that is accountable, but does not at the same time inhibit the freedom of the press. The giants of social media have, in my view, at last begun to respond to the challenge of the posting of often unreliable news and disinformation. If they fail to make real progress, the Government may have to intervene substantially.

The Cairncross Review rightly emphasised the importance of journalism and in particular regional journalism. There is plainly a need to develop media literacy and to encourage readers and consumers to identify when they can rely on a source of news. IPSO has a significant contribution to make in this regard.

Discrimination in Football

Lord Faulks Excerpts

Thursday 11th April 2019 Lords Chamber

[Lord Faulks (Con)]

My Lords, a considerable number of the examples that my noble friend gave in the Statement outlining this sad litany of discrimination are already offences under the law. Is he satisfied that there have been and are enough prosecutions? In that context, it would no doubt be said by the police and perhaps by the Crown Prosecution Service that they are considerably stretched in terms of resources. Is he satisfied that football clubs—on the whole not poor institutions—are making a sufficient contribution to this matter?

Data Protection Bill [HL]

Lord Faulks Excerpts

Monday 14th May 2018 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that my noble friend—

[Lord Faulks (Con)]

My Lords, I do not think the noble Baroness was here for the debate.

[Baroness Kennedy of The Shaws]

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.

Data Protection Bill [HL]

Lord Faulks Excerpts

Report: 1st sitting: House of Lords
Monday 11th December 2017 Lords Chamber

[Lord Pannick (CB)]

My Lords, the Minister said that Amendment 1 is designed to provide reassurance that existing EU law rights are fully protected under the Bill. I, too, welcome the Minister’s assurance that further work will be done on this amendment prior to Third Reading. I will suggest four points that need to be considered and included in this amendment.

First, subsection (1)(a) of the proposed new clause refers to the need for data “to be processed lawfully”, but it does not refer to the obligation under Article 8.2 of the charter for data also to be processed fairly. That needs to be included.

Secondly, Amendment 1 does not refer, in subsection (1)(b), to the right to have personal data rectified. Again, that right is conferred by Article 8.2 of the charter.

Thirdly, the government amendment uses weak language in subsection (2), which says that,

“the Commissioner must have regard to”,

and uses “taking account of”. The Minister will know that Article 52 imposes a much tougher standard for limitations. It is a test of necessity, which is echoed in Amendment 2 in subsection (6).

Fourthly, government Amendment 1 makes no mention of the principal of proportionality. Again, that is an important element of Article 52.1 of the Charter, which, again, is mentioned in Amendment 2.

If the objective of the government amendment is to echo the rights that are currently enjoyed under the charter, these issues need to be further considered and, I hope, can be included in the redrafted Amendment 1 that the Government will bring forward at Third Reading.

[Lord Faulks (Con)]

My Lords, I do not wish in any way to spoil the degree of harmony that appears to have grown up over these issues in Amendments 1 and 2. When I looked at both amendments, I was not convinced of the need for either. If, as the Minister rightly says, Amendment 1 does not create any new rights, given that we have a Bill of 242 pages with a number of complex provisions, it seems surprising that we need to restate the principles. Of course, if we restate them, we run into the danger of attracting the attention of the noble Lord, Lord Pannick, who can say, “If you’re going to restate the principles, you may restate them rather better”. Surely it is much more desirable to specify precisely what the Bill is intended to do in those bespoke provisions rather than resort to generality, which inevitably has imprecision.

On Amendment 2, I am not a great fan of the European Charter of Fundamental Rights. The position of the party opposite when it was first advanced was entirely correct: it should not add rights to any protection that already exists in our law. On this so-called right to protection of personal data, if an amendment is to be introduced at this rather late stage of the proceedings, surely the first question is: does it add clarity to the Bill? It does not. Does it provide better protection, doing something that is otherwise not covered by the Bill but ought to be? If that is the case, let us by all means have an appropriate amendment. Why does it not provide clarity? These provisions must ultimately be interpreted by a court, as is recognised by proposed new subsection (7) in Amendment 2, which invites the court to,

“take into account any relevant judgment, decision, declaration or advisory opinion of the … Court of Justice of the European Union; and … European Court of Human Rights”.

Interestingly, the word “must” is used rather than “may”, which is the way that Section 2 of the Human Rights Act invites courts to have regard to the jurisprudence of the Strasbourg court. So a court is going to have to try to make sense of the relevant decision judgment of the Court of Justice of the European Union or the European Court of Human Rights. The ECHR does not have quite the same system of precedent that we have, and courts have often found it difficult to distil from the jurisprudence precisely what they should or should not be following. What if there were a difference between the interpretation of the Court of Justice of the European Union and the ECHR? That would provide further difficulties for a court.

--- Later in debate ---

[Lord Ashton of Hyde]

Government Amendment 1 provides a basis for the discussion that we will have before Third Reading. Of course, I accept that it could be amended at that stage.

As for the remarks of the noble Lord, Lord Pannick, I will have to read my noble friend Lord Faulks’s words. I was not entirely sure that he was as supportive as the noble Lord feels, but I may have misinterpreted him.

[Lord Faulks]

My Lords—

[Lord Pannick]

As I understand them, both the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Mackay, doubt the need for any amendments of this sort. I am suggesting to the Minister that there is a real need for a statement of principle—that is all.

Data Protection Bill [HL]

Lord Faulks Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 30th October 2017 Lords Chamber

[Lord Pannick (CB)]

My Lords, the problem with Amendment 4 is that it would not incorporate the charter provision relating to personal data. The reason for that is that it addresses the prima facie right to the protection of personal data, but not the limitations and exceptions recognised by the European charter itself. Article 8, like all the other rights in the European charter, is subject to the limitations stated in Article 52. That says that there can be limitations on protected rights if they are provided for by law, are necessary and meet,

“objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.

It is because there has to be a balance between this prima facie right and exceptions and limitations that the Bill contains a very large number of exemptions which cover a whole range of circumstances in which the rights of the data subject have to give way to other considerations, such as national security, the detection of crime, taxation, judicial appointments or confidential references for employment. There are many such exemptions.

The Bill contains exemptions because there are other interests in this area, and other rights, which conflict with the right to protection of personal data, and a fair balance is required. The Committee will want to debate the scope of those exceptions and limitations and be satisfied that the balance has been struck correctly. But Amendment 4 suggests that there is some absolute right to the protection of personal data. That is simply wrong. That is why, I imagine, the noble Lord, Lord Stevenson, has tabled manuscript Amendment 4A, which attempts to address the defect in Amendment 4.

I would have wished for more time to consider Amendment 4A, which I understand was tabled only this morning, particularly if the noble Lord, Lord Stevenson, intends to divide the Committee today. I am concerned that Amendment 4A poses two difficulties of its own. First, the value of including Amendment 4A is not clear to me. The Bill already sets out in considerable detail the domestic implementation of the charter obligation; that is, Article 8 read with Article 52. I fear that including Amendment 4A in the Bill would be likely to cause legal confusion and uncertainty in an area where precision and clarity are essential—and, indeed, are provided by the substance of the detailed provisions in the Bill.

Secondly, I fear that the purpose of Amendment 4A is to confer some special, elevated legal status on Article 8 rights concerning personal data for the future, as subsection (4) suggests. I think that would be very unwise because, as I have said, Article 8 rights often conflict with other rights—whether it is freedom of expression, which we heard about, or the right to property—or other interests. The detailed provisions of the Bill illustrate the difficult choices that have to be made in this area.

Amendment 4A seeks to give a special legal status to one charter right in isolation and that is simply inappropriate. For those reasons, I hope that the noble Lord, Lord Stevenson, will not divide the Committee on Amendment 4A. If he does, I will vote against it.

[Lord Faulks (Con)]

My Lords, this is a complex Bill—necessarily so as it balances the need to access data and the need, in appropriate circumstances, to protect data from access, as the noble Lord, Lord Pannick, said. Most of the amendments in the Marshalled List seem to me to be about fine-tuning the provisions to alter the balance a little, one way or another. However, Amendment 4A—charmingly introduced as it was by the noble Lord, Lord Stevenson—seems to be in a different category. It seeks to incorporate the provisions of the Charter of Fundamental Rights into the Bill by including the wording of Article 8.

I do not claim particular expertise in data protection, except to say that every business and every professional is or should be aware of their obligations in this area. I do, however, have considerable experience of the interaction of detailed legislative provisions and rights instruments. My experience stems from legal practice and as a former Minister in the Ministry of Justice. A particular focus of my attention was the European Convention on Human Rights and, to a lesser extent, the charter.

There is always a difficulty in marrying up detailed legislative provisions and broad-based charters or conventions, which are inevitably framed in generalisations. I have always thought that a combination of our Parliament and our courts should be capable of protecting citizens’ rights. However, to help in that pursuit we have the Human Rights Act, which incorporates the European convention into our law and gives the Strasbourg court a significant role.