Data Protection Bill [HL]

Lord Clement-Jones Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, of course, we appreciate the contributions from all sides of the Committee on this issue, but let us be clear: this Bill is about data protection—it is not about press regulation. It is not about distinguishing between journalists, nor between the regulators they may or may not belong to.

The Government are committed to defending not only hard-won liberties but the operation of a free press. That is a fundamental principle of any liberal democracy. This Bill seeks to preserve the balance found in the 1998 Act, where journalists can process personal and special categories of personal data, but only when their processing is in the public interest and the substantial public interest respectively. The Bill also seeks to ensure that journalists are exempt from compliance with certain data protection requirements where to do so would undermine the operation of a free press, a key part of a strong and effective democracy where Governments are held to account and corruption and criminal behaviour can be challenged. No one seeks to condone the past misbehaviour of individual media organisations, nor to legitimise it.

Amendment 42 is moved by the noble Lord, Lord Stevenson. As we discussed last week in reference to Part 2 of Schedule 1, there is an exhaustive list of the types of processing which could be in the substantial public interest. When the Government consider that processing of a particular type will not always be in the substantial public interest, the Bill makes it a requirement that the data controller satisfies himself that any particular instance of processing is in the substantial public interest. Amendment 42 concerns the condition allowing journalists to process data in connection with unlawful acts and dishonesty, as dealt with in paragraph 10. The Bill, however, needs to balance freedom of expression with privacy and it may be that in some cases an act of dishonesty is not important enough and does not engage the substantial public interest to the extent that it justifies the processing of sensitive data by journalists. That is why the distinction is made.

To pick up on a point made by the noble Lord, Lord Stevenson, about continuity of arrangements in the 1998 Act, this processing condition is the same as that which currently appears under the existing Data Protection Act. It would appear that journalists have been dealing with that effectively and making the appropriate judgments for the last 20 years. I hope that that goes some way to explaining why we resist Amendment 42.

On Amendment 87B, I reassure the noble Lord that the specific inclusion of “photographic material” in paragraph 24(2)(a) of the schedule is unnecessary. This is because photographic material is likely to fall within one or more of the categories listed in that paragraph—for example, journalistic material or artistic material. We suggest that there is no requirement for express reference to photographic material. As for the point that was raised with the noble Lord by the NUJ, I think, about the use, the test is,

“with a view to publication”.

As long as that test is met, it does not necessarily follow that there must have been publication in order to legitimise the material in question. The position would, of course, be radically different if one had regard to one of the amendments moved by the noble Baroness, Lady Hollins.

Amendment 87E would remove the list of codes and guidelines in paragraph 24 of Schedule 2 that help controllers assess whether a publication would be in the public interest for data protection purposes and would replace it, as I understand it, with the term “appropriate codes”. I confess that I am a lawyer, to respond to a point made by the noble Lord, Lord McNally, or at least it is alleged that I am. That would certainly make it more difficult, as a matter for interpretation, for both publishers and the Information Commissioner to evaluate whether the publication of an individual’s personal data was in the public interest. Indeed, rather than the clarity of a list, one could instead be faced with years of potential litigation before an adequate body of case law was in place to establish what was appropriate. That is why we suggest it is appropriate that there should be a specific list, as reflected in the current legislation, the 1998 Act.

Amendments 88 and 89A concern the specific industry codes listed in the Bill. I start by saying that the codes currently listed in the Bill reflect those that are listed in the existing legislation. The editors’ code listed in the Bill—now enforced by IPSO rather than the Press Complaints Commission, I acknowledge —is one of these, and the Information Commissioner has already reflected this change in her current guidance on Section 32 of the existing Act. That follows from the Data Protection (Designated Codes of Practice) (No. 2) Order 2000, which set out the various codes of practice and included the editors’ code of practice. While there is a suggestion that the editors’ code of practice might change, in the light of any such change the Information Commissioner’s view and guidance as to the applicability of that code may also change. So it is not as if it is entirely without control.

[Lord Clement-Jones (LD)]

The Minister said that it could change, but the word IPSO is actually in the Bill, so I do not quite understand the point that the Minister has just made.

Sky and 21st Century Fox: Proposed Merger

Lord Clement-Jones Excerpts

Thursday 29th June 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend Lord Grade. I heartily endorse his observation that it is so important to keep the politicians out of these issues—that they should not become politicised. I endorse his observations about the independence of Ofcom in the context of this process. At the end of the day, fitness is for an independent regulator to determine. It would be a poor turn of events if we found that that was simply a political or ministerial decision.

[Lord Clement-Jones (LD)]

My Lords, I fully accept the Minister’s point about the independence of Ofcom and, indeed, the point made by the noble Lord, Lord Grade, about not politicising this process. But returning to the point made by my noble friend and the noble Lord, Lord Collins, about Leveson 2, how can a credible “fit and proper” report be drawn up by Ofcom when Leveson 2 has not taken place and two of the absolutely key terms of reference relate to improper conduct within News International and the corporate governance and management failures at News International?

[Lord Keen of Elie]

With respect to my learned friend—the noble Lord; I apologise—

[Lord Clement-Jones]

I am flattered.

[Lord Keen of Elie]

I have sometimes inadvertently made that observation with regard to a solicitor. At the end of the day Ofcom is satisfied that it has been able to reach a decision on that point and it has done so in a number of different contexts and for a number of years without the requirement for Leveson 2. But ultimately that is a matter for Ofcom. If it felt it was not able to arrive at a conclusion without Leveson 2, I have no doubt it would have said so.

Digital Economy Bill

Lord Clement-Jones Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Baroness Byford (Con)]

My Lords, I would like to support my noble friend in his amendment. Algorithms are basically mathematical. The power of computers is used to record, classify, summarise and project actions that indicate what is happening in the world around about us. Algorithms can be applied in particular to social media, which other noble Lords have referred to, and to normal internet usage and browsing. They reach decisions about public interest, about you and about me.

According to a recent radio programme, algorithms are used to make individual decisions in the fields of employment, housing, health, justice, credit and insurance. I had heard that employers are increasingly studying social media to find out more about job applicants. I had not realised that an algorithm, programmed by an engineer, can, for example, take the decision to bin an application. If that is true, that is absolutely unacceptable. It certainly explains why so many jobseekers do not receive a response of any kind. There is a very real danger that a person could also be refused a mortgage or a better interest rate as the result of an algorithmic decision. Even now some companies use algorithms based on phone numbers to decide whether a caller is high or low value. Highs get to speak to a person: lows are left holding on until they hang up. Algorithm designers refuse to answer any questions, I understand, about the data that are used or their application on grounds of commercial confidentiality. There are real concerns that if we continue to allow such liberties, there will be an increasing risk of discrimination—intentional or accidental—against people of certain races, religions or ages. One example of algorithm use cited in the programme was that of differential pricing by Uber.

The EU intends that by July 2018 citizens will have the right to an explanation of decisions affected by the workings of these algorithms, such as the online rejection of a bank loan. I do not feel that we should wait until then, and although my noble friend’s amendment might not be perfect, I am really grateful that he has tabled it today and that we are having this worthwhile debate.

[Lord Clement-Jones (LD)]

My Lords, I also thank the noble Lord, Lord Lucas, for putting down this amendment. Indeed, this amendment has many good aspects to it, but I will adopt a phrase which the noble and learned Lord, Lord Keen, used the other day, which is, “It doesn’t go nearly far enough”. It really highlights—and I declare an interest as the co-chair of the new All-Party Parliamentary Group on Artificial Intelligence—some of the issues that this Bill simply does not deal with. This does need huge consideration: all the ethics involved not only with artificial intelligence, but with the internet of things and the great many regulatory issues which spring from the new technologies. Algorithms are a part of it, of course they are, but we need further consideration.

I agree with those who have said that perhaps Ofcom is not necessarily the best regulator for this—I do not know—and it may be that we need to construct a purpose-built regulator for the world of artificial intelligence and the internet of things in ethical terms. I am not quite sure that Ofcom has got the necessary tools in terms of the ethics aspect of it.

I am very much in spirit with the noble Lord and I am delighted that he has raised it, but we are at the very beginning of a really important debate on a lot of these areas. The essence of all this is trust. We had a continuous debate through Part 5 about the government sharing of data. This is about the private sector and its use of a lot of our data and the way it sorts them and places them in the search engines. Trust is the overwhelming issue of our age, and we are not there yet. If we are going to reassure people who want to use these new technologies, we really do need to come up with a proper regulatory system. I do not think that this new clause quite provides it.

[The Earl of Erroll]

Before the noble Lord sits down, may I just ask him: is it not dangerous to make perfection the enemy of better? In other words, the amendment may not be perfect, but it is moving in the right direction, and to say, “Do nothing”, because it is not perfect is surely very unwise, given all the other stuff that he has said.

[Lord Clement-Jones]

My Lords, I know that the noble Earl himself is perfect in almost every way, so I would very much hesitate to argue with him. Still, I feel we need something rather broader than this proposal would provide.

[Baroness O’Neill of Bengarve (CB)]

My Lords, I share the view that the noble Lord, Lord Clement-Jones, has expressed, that the amendment probably is not the way to go about this. Algorithms are too ubiquitous, useful and powerful in this case. I do not know what we could do instead, but I note that one of the things we are looking at, together with the problem that the noble Lord, Lord Lucas, has identified, is that the internet service providers and the big media companies are supposedly platforms, not publishers, and they do not have the responsibilities of publishers for that reason. Facebook will say that it merely hosts the material that individuals post. When individuals post material, they ought to think that it reaches an indefinite number of people because the algorithm spreads it through the echo chambers. It is the cyber silos that we are going to have to think about. With the greatest regret, I do not think the amendment would do that, but I very much support the principle of looking into this matter.

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Moved by

[Lord Clement-Jones]

215: Clause 75, page 78, line 11, leave out from “appeal,” to end of line 12 and insert “by reference to the grounds of appeal set out in the notice of appeal and taking due account of the merits of the case.”

[Lord Clement-Jones]

My Lords, I shall speak also to Amendment 216.

It is common ground that anyone affected by Ofcom’s decisions should have the right to appeal if they consider that Ofcom has got something wrong. Ofcom itself makes the point that there needs to be an appropriate balance between properly holding it to account and enabling it to make timely and effective decisions in the interests of citizens and consumers and the wider UK economy. But in the brief for this debate, it goes on to say that,

“the current merits system for appealing Ofcom’s decisions does not achieve that balance. It results in some appellants effectively asking the courts to become the primary decision-maker in place of Ofcom rather than conduct an appeal which focusses on errors which Ofcom is alleged to have made. This is particularly the case in price control appeals, where appellants have consistently used the system as a second attempt to run arguments they have already made to Ofcom during its extensive consultation processes”.

Those propositions are hotly disputed not only by many telecoms and internet service providers but also by others such as the CBI and techUK. Their position was made clear on this matter as far back as September 2013, when the Government published their summary of stakeholder views on the appeals system.

I will take the House through the fundamentals of Ofcom’s case for the change embodied in Clause 75. First, it says:

“Almost every single decision by Ofcom is promptly appealed in the courts”.


Roughly one in eight decisions have been appealed over the past decade, and this has been declining significantly over the past five years. The potential for merits-based appeals is an incentive for high-quality regulation. Here is another claim:

“This has resulted in lengthy delays in putting through quite important measures”.


Almost invariably, Ofcom’s decisions take effect immediately and stay in place while an appeal is heard. In the case of price controls, no Ofcom decision has ever been delayed in its application while an appeal is heard. Here is another proposition:

“This change will bring Ofcom into line with other regulators”.


Virtually every other economic regulator faces scrutiny of its decisions to establish whether it is in error under regimes not limited to judicial review. I could take your Lordships through energy, water, post, the NHS, aviation, rail, but I will not go into great detail unless I need to respond to the Minister at the end of the debate.

The new approach in Clause 75 would therefore not be in line with almost all other comparable public authorities—that is, the economic regulators. The standard of appeal is not much lower in telecoms than in other sectors. All the UK’s major economic regulators have a form of statutory review that is in law or in practice merits review. All EU telecoms national regulatory authorities make decisions that must stand on their merits.

Here is a further proposition: Clause 75,

“should also free up Ofcom resource to deliver better outcomes for citizens and consumers”.

Far from being good for the consumer, Clause 75 would have denied the court’s ability to implement corrections to bad decisions which have resulted in something like £350 million to £400 million of direct consumer benefit over the past decade. Over a number of cases in the past 10 years—again, I can give the Minister references if he needs them—the tribunal’s decision was that Ofcom’s decision had not gone far enough in the consumer’s favour. This would not have been fixed through judicial review.

A further proposition:

“The big incumbents will no longer be able to use the process to hold-up regulatory decisions through aggressive use of the appeals process”.


Opponents of the change in fact represent the vast majority of the investing industries—small and large, ex-incumbent and insurgent. BT was joined by other industry appellants on most of the cases it appealed. Merits-based appeals work pretty well for SMEs, too, and are disproportionately used by them.

Here is another proposition:

“If material error is present it can be addressed in judicial review”.


Judicial review tests generally relate to illegality, procedural impropriety, irrational behaviour—in other words, has the decision-maker taken leave of their senses? To repeat, JR would have denied consumers benefits of something of the order of £400 million in value. Here is another proposition:

“JRs will be fewer in number and take less time”.


Increased uncertainty for this procedure could be likely to result in an increase in appeals. On average, judicial review takes 10 months from start to finish, versus 11 months on average for a merits appeal. Judicial review requires the decision to go back to the regulator, which can add years to the process, while a merits-based appeal provides powers to the appeals body to fix the problem.

Its final proposition is that:

“Ofcom wins 85% of cases”.


That is rather misleading. Ofcom wins just over 60% of appeals and in the rest it is found to have erred in some material respect. Ofcom’s statistics only tell us that in 15% of cases it lost absolutely every point in an appeal. That is the true 85% figure.

For all the above reasons, the vast majority of telecoms communications providers of the UK’s fastest-growing new fibre networks, the UK’s premier business organisation, the UK’s trade association, providers of internet services and the body which represents the UK’s technology sector, strongly oppose the proposed change. They fear the change will mean that regulation will become unpredictable and prone to risk, with no corrections for inconsistency, error, or lack of rigour in approach.

In summary, a move to judicial review will leave wrong decisions standing. Judicial review, as I said earlier, is solely concerned with whether the decision is unlawful in a technical sense—that is, was the correct process followed? The decision itself is not reviewed. Many decisions that have been found in merits appeals to be clearly wrong and that harm the interests of consumers would have been allowed to stand under judicial review. As I have emphasised above, the existing appeal regime protects the interests of consumers. Ofcom can and does make mistakes, and in the vast majority of cases, these mistakes have meant higher prices for consumers. Correcting those mistakes has delivered benefits of hundreds of millions of pounds.

These amendments steer a different and compromise course. We accept that there may have been some gold-plating of the original framework directive, and have tried to meet some of the criticism through these amendments. Amendment 215 is a direct copy of the European framework directive wording, without any gold-plating. As I have said, this is followed by all other national regulatory authorities in the EU. The tribunal must decide the appeal,

“by reference to the grounds of appeal set out in the notice of appeal and taking due account of the merits of the case”.

This version no longer requires the appeal to be decided on the merits but with “due account” of the merits being taken.

Amendment 216 is an alternative, focused on specific grounds used in appeals in other sectors. The tribunal must decide an appeal by reference to the grounds of appeal set out in the notice of appeal only to the extent that it is satisfied that the decision appealed against was wrong on one or more of the grounds set out in proposed new paragraphs (a) to (f). This version has a narrower scope than the current approach but allows for an assessment of whether the substantive decision is correct, not simply whether the correct decision-making process has been followed.

Clause 75 is a serious change to make to the telecoms regulatory regime. I very much hope that, in the face of these arguments, the Government will change their mind. I beg to move.

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[Lord Clement-Jones]

My Lords, I will not disguise the fact that I am not happy with the Minister’s reply. But I would like to thank the noble Lord, Lord Aberdare, for his support and I particularly thank my noble friend Lord Lester, who himself is a master of judicial review. I take very seriously what he has to say on the subject. I also thank the noble Lord, Lord Stevenson, who raised a number of pertinent points. He is obviously a very good client when taken to Chambers. I was hoping that the noble Lord, Lord Faulks, was going to take part in the debate, as then a ruffle or a jabot of QCs would have emerged; I do not know what the collective noun for QCs is.

Quite seriously, I am afraid that the Minister and the Government have bought not just the Ofcom line, but the hook and the sinker as well. We have an interesting conjugation: “I make my case, you lobby”. That seems to be the construction put on Ofcom’s behaviour. So Ofcom’s decisions are entitled to respect and “a margin of appreciation”. We are talking about the appeals process for an immensely powerful regulator. I do not think that that is an appropriate form of words. Of course, decisions are entitled to respect, but the rights of those who are investing in the telecoms industry are entitled to respect as well. This is an argument about the appropriate form of appeal.

I did not touch on whether this new clause is in line with European law. It may be academic because we might be out of the stable, so to speak, before we have to test the proposition as to whether the use of JR in these circumstances conforms to the framework directive. But that is an important matter. Ofcom has clearly been vigorous in its lobbying and certainly vigorous in its lobbying of noble Lords. I am glad to say that many of them have resisted in the circumstances. The Minister went through the nature of the amendments in a perfectly proper fashion, but he did not really make a particularly good case about why they were not appropriate. He did not really address my argument about other regulators. At the outset, I took the Minister through a number of economic regulators, none of which have JR as the fundamental point of appeal, so that requires an answer.

My purpose in tabling the amendment is to make sure that there is an effective challenge to Ofcom. We have swung way too far with Clause 75. We are serving the interests of the regulator far too much. I do not believe that all the propositions that Ofcom has put forward are valid and we need to keep kicking the tyres further on this particular clause until we find a better solution. We may have to make express reference in Clause 75 to the EU framework directive, which might be one way of dealing with this. But I guarantee that we will return to this at a future date. In the meantime, I beg leave to withdraw the amendment.

Amendment 215 withdrawn.

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[Lord Borwick (Con)]

My Lords, I declare my interests in the register, and as a trustee for more than 20 years of the Ewing Foundation for deaf children. It is a great charity which works in schools to help deaf children make the most of their education; partly by helping the teachers to ensure that their hearing aids and cochlear implants are working well and by giving teachers advice on how to get the most out of the equipment and how to help the children.

Many trends are apparent in the field of deafness, not least the rapid rise of cochlear implants, the rise in literacy rates in children and, of course, the rise in late-onset deafness as the population generally ages. The vast majority of deaf people speak and read perfectly, as most are elderly people who learned their language and how to read as children. I thank Action on Hearing Loss and the Bill team in the Department for Culture, Media and Sport for their help in drafting this amendment and their support in its passage. They have helped to clarify my thinking on this important issue.

This is an enabling amendment, permitting the Secretary of State to bring forward statutory instruments to require those who transmit television programmes to provide subtitles, then audio description for viewers with poor eyesight and, lastly, British Sign Language interpretation for people who find that easier. I am told that all terrestrial television programmes now carry subtitles and a growing number of pay-to-view programmes are already having subtitles added. Sky has told me that about 60% of its entire output will carry subtitles by September this year; it should be applauded for voluntarily doing the right thing. Thank you. However, the advance of audio description and sign language does not seem so good. The latter two aids to understanding are far more expensive than subtitling and it is possible that technological advances will play a part in solving the problem of deaf people who can communicate only with other sign language users.

Already, in America, I have seen demonstrations of software that will enable simultaneous translation from American Sign Language to text. If that is available, translation from text to British Sign Language on an iPhone will not be far behind. When the statutory instruments come through, we must bear in mind the speed of technological change and not be too prescriptive in the manner in which subtitles are delivered. We should instead seek a statutory instrument that merely says that subtitles should be available on all programmes. A swift statutory instrument will serve as encouragement to the broadcasters to continue and expand their good work. If we are in a position where the broadcasters and the Government are competing with one another to seek the broadest and quickest implementation of subtitles across channels and services, I would say that that is great.

We should remember that TV companies are simply responding to demand. It is not just the hard of hearing: think of TVs in noisy venues, football fans who want to read the half-time match analysis over the din in the pub, or people watching television in a noisy gym. All will appreciate this change. This sort of measure will also help to solve the biggest problem of sensory deprivation: that of isolation. If subtitles enable a deaf person to be on an equal footing with those in the hearing world, then we and the Government will have done one more thing to put disabled people in a position to thrive in society. I beg to move.

[Lord Clement-Jones]

My Lords, I think that many of us responding to the amendment in the name of the noble Lord, Lord Borwick, find ourselves in something of a cleft stick. He has introduced the subject matter superbly, and in principle the amendment is entirely correct. The noble Lord has a very good track record on physical access for the disabled and this is a continuation of that, in a sense, in a different sphere. He also has the courage to wear a House of Lords tie, so he cannot be all bad. The trouble is that this amendment does have flaws. I am sure that the noble Lord, Lord Grantchester, if he speaks on this, will pick up on them. The Delegated Powers and Regulatory Reform Committee has commented on this.

All of us want the amendment to succeed but it does need a further look. We have all had briefings from the public service broadcasters and the platforms, including Sky, who say that they can live with this in principle but are rather concerned about the fact that there is no parliamentary approval built in. There are a number of flaws; they recommend that the affirmative procedure should be applied to the first regulations; they recommend that the appropriate regulatory authority is specified; and they recommend that the Secretary of State should have a duty, before making the regulations, to consult on-demand service providers and other stakeholders—which, of course, would be the platforms. So I am very much in sympathy in spirit, but I hope that we will have a chance before Report to perfect the amendment so that the campaign of the noble Lord, Lord Borwick, will proceed as intended in due course.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I support these two amendments. As the noble Lord knows, they have been the subject of considerable discussion and debate in the past. We all share the objective of allowing family-friendly filters to remain on internet services and mobile networks in the UK. As the noble Lord set out, the arrangements we currently have in the UK were brought into question by the EU net neutrality rules introduced last year, which appeared to ban individual countries from restricting access in this way. Since then, there have been a number of different interpretations of how the EU rules would affect the UK—perhaps complicated by the fact the Ministers themselves were not able to clarify the situation with their usual adeptness. Indeed, it still appears that the EU open access regulations and our commitment to family friendly filters are in some ways in contradiction.

The Minister will know that many of the internet companies have taken the view that the less said about this issue the better. Their argument is that if attention is not drawn to the contradiction, they can carry on with the previous practice—under the wire, so to speak. Of course, for a lot of reasons this is not a very attractive proposition, and we accept that it would make the status of family-friendly filters more vulnerable as time went on.

So, instead we have the amendments tabled by the Minister today. When I asked at a previous meeting with the Minister whether the amendments had been checked out legally, I was assured that this was the case. We have not seen that legal advice and therefore have to take it on trust that what is before us today is legally watertight and does not contravene EU rules.

To some extent we are taking all of this on trust. While it would be easy to demand more evidence, I accept that it would not help the case of those committed to family-friendly filters—I suspect that the more we probe, the more the robustness of the proposals before us could unravel. We support the intent behind these amendments and it is certainly not our intention to bring them into question in any way. I hope that they achieve the outcome to which we are all committed. I hope therefore that noble Lords will support the amendment.

[Lord Clement-Jones]

My Lords, both my noble friend Lady Benjamin and the noble Baroness, Lady Jones, are far more authoritative on this subject than I could possibly be. I just want to add our support from the Front Bench for these two amendments. The noble Baroness made an important point, which is that we very much hope that the amendments are effective in clarifying the situation. There is no absolute guarantee of that but they have a fair wind because of the nature of the voluntary system of family-friendly filters that they underpin. I very much hope we do not do too much “probing”—I think that is the word that the noble Baroness used—as we are just happy that we can continue with the same system as we had before. I also think my noble friend Lady Benjamin asked an important question regarding where the gaps are in terms of the smaller players.

[Lord Ashton of Hyde]

My Lords, I am grateful for the support from all noble Lords on this. I assure the noble Lord, Lord Clement-Jones, that I feel well and truly probed after this Committee stage.

We have a voluntary system that is going well, but I accept that the noble Baroness, Lady Benjamin, has a point in asking about the remaining amounts that are not covered. We might query the numbers that she is talking about. My information is that the latest figures from Ofcom and the industry indicate that around 95% of the UK fixed broadband market offers free network-level or device-level parental filters to their customers. The numbers are important but the principle is there—what are we doing about the providers that are not covered?

The remaining 5% are generally small internet service providers offering business-to-business or niche specialist services to more tech-savvy customers. Some small ISPs have a business model based very transparently on not filtering, for open-rights reasons. However, many of them already provide guidance to customers where appropriate on free device-based or network-level filter tools. Still, we recognise the concern to do everything we can to protect children online, and I am happy to say that after discussions with my officials last week or the week before, the Internet Services Providers’ Association has agreed to take further action to encourage its smaller members to consider online safety and filters. It is updating its code of practice and new member sign-up process to ensure that members consider offering filters to their customers, and issuing a guidance note to members on filters, signposting them to further help and support. So we have addressed that point. It is still on a voluntary basis so far, and we will continue to monitor how that is going.

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[Baroness Buscombe]

My Lords, Amendment 228 introduces a new clause with a regulation-making power that will enable the police and the National Crime Agency to apply to the courts for an order compelling communication providers to take whatever action the order specifies to prevent communication devices being used in connection with drug-dealing offences. Such action may include blocking mobile phone handsets and SIM cards and preventing particular phone numbers from porting between networks, as well as preventing access to wi-fi networks. This is an enabling provision that provides for the Secretary of State to set out in regulations details of how applications are to be made and dealt with in the courts. The amendment broadly mirrors Section 80 of the Serious Crime Act 2015, which provides for a similar power to prevent the use of mobile phones in prison.

The amendment responds to an operational requirement of the police, who require support in tackling the issue of county lines—the police term used to describe gangs in large urban areas who supply drugs, especially class A drugs, to suburban areas and market and coastal towns. To support their market expansion, gangs recruit and exploit children and vulnerable adults through deception, intimidation, violence, debt bondage and/or grooming. They are used to carry drugs and money.

County lines gangs’ criminality relies on the unrelenting recruitment, coercion and systematic exploitation of the most vulnerable including looked-after children, young people reported as missing and children from broken homes. Vulnerable adults are also exploited and can lose control of their home to gangs who use it as a base to distribute drugs, in a practice known as cuckooing.

The phone line is central to this model and to the gangs’ ability to deal drugs out of area in this way. When establishing a new county lines market, gangs will promote a number locally as the number to call to buy drugs. That “deal line” is therefore at the very core of this criminal model. Dealing drugs is a serious criminal offence and the police are committed to securing prosecutions wherever possible. However, as the deal line is held well away from local street-level drug-dealing activity and it will be an anonymous pay-as-you-go line, both those factors make it hard for the police to achieve prosecutions against an individual for the activity on that line.

Each deal line has the potential to interact with hundreds of customers and facilitate thousands of deals 24 hours a day. Disrupting these lines will have a significant impact in disrupting the gang-related drug supply and associated exploitation. There is currently no legal power in place to compel communication providers to disconnect phones used in county lines drug-dealing activity. We must ensure that the police have the powers they need to tackle this issue.

This legislation is part of a wider ongoing multiagency response, including safeguarding partners, to tackle county lines gangs, but this new order is a critical tool that will render this operating model ineffective and unattractive through the disruption of it. Amendments 236 and 241 are consequential. I beg to move.

[Lord Clement-Jones]

My Lords, we are broadly supportive of the amendment. We want to put on record that we have our doubts about the efficacy of the provisions, but obviously if they work then we will be thoroughly delighted. We are slightly doubtful about whether these measures will ultimately be effective, though, and I am sorry that my noble friend Lord Paddick is not here to add his experience to the debate.

Amendment 228 agreed.

Digital Economy Bill

Lord Clement-Jones Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

This is one further step on a number of issues that I would genuinely ask the Government to look at. We need to strengthen the requirements for ticket sellers on to the platform. Yesterday my noble friend made the good point in closing that we do not want to have numbers on each and every ticket because some are sold in blocks while others might be for a small pantomime in a Bury theatre. The truth is that the Committee is not asking for that. We are asking that where an event organiser has provided a number on the ticket in the first place, the secondary market should be required to put that number on the advertising on its website so that it can be checked. I am grateful to the Minister for highlighting that point and I hope that my response will allow him to think yet further about how we can put in place just a small number of additional measures to strengthen the legislation in order to protect consumers, to absolutely get rid of bots and, from a personal point of view, to pay respect to my lamented and absent noble friend this evening, Rachael Heyhoe Flint.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Lords, Lord Stevenson and Lord Moynihan. I shall speak to Amendment 231 and express my support for Amendments 230 and 233B to 233E. Despite the lateness of the hour, I hope that the Minister will not mind my adding my tribute to the late Baroness Heyhoe Flint. She will be greatly missed, and it was moving to hear what the noble Lord, Lord Moynihan, had to say. In a sense it is a complete loss not to have her here today to speak to these amendments because we know that she would have made a passionate case for all of them, so we are here to help move forward this campaign. I am a member of the All-Party Parliamentary Group on Ticket Abuse. Together with other noble Lords, I debated these matters on the Consumer Rights Bill and I feel strongly that we must move on from where we are today. I want to make a few comments in connection with the amendments for that reason.

The market in ticket resale is some £1 billion per annum across music, sports, theatre and comedy, and it is a very lucrative business. There is increasing evidence that it is a market manipulated by touts. We have listened to the egregious examples given by the noble Lord, Lord Moynihan. Fans who want to buy tickets for the events that are most highly in demand are systematically directed towards platforms like viagogo, StubHub, Get Me In and Seatwave, where scalpers and bot users are able to operate anonymously and bulk-sell inventory at hyped-up prices. Another example to add to those already given is the latest in a long line of victims: Ed Sheeran fans attempting to buy tickets last week for his upcoming UK arena shows. I looked at the ticket listings for his concert at the O2 on 2 May and counted almost 1,500 tickets for sale across Get Me In, Seatwave, StubHub and viagogo, all for prices way over face value, with service fees in excess of 20%.

Ed Sheeran has publicly condemned ticket touts and before these shows went on sale he carefully communicated to his audience to buy only from authorised ticket agents. He also appointed a resale agent to enable fans to transfer tickets at face value, yet touts still infiltrated the sale. No wonder people are so angry: they feel the system is rigged. An industry campaign, the FanFair Alliance, is fast gathering support, and I am very grateful to it for helping brief us all for this debate. Fans themselves are petitioning the Government. More than 33,000 have signed a parliamentary petition in the last week, begging politicians to tackle this issue. Of course, we have debated this in Parliament. The Culture, Media and Sport Select Committee held a short inquiry which came to the conclusion late last year that action was needed. The committee chair has described ticket touting as “a national scandal” and a massive racket which is making people in the industry millions, while exploiting genuine fans who just want to pay a fair price to attend live events.

The noble Lords, Lord Moynihan and Lord Stevenson, mentioned the report undertaken for the Government by Professor Michael Waterson, which raised major concerns. He made nine recommendations to the Government, yet here we are eight months later and despite some encouraging words in the other place, particularly about bots, the Government have yet to respond. Legislation, even the inadequate legislation we managed to get the Government to agree to on the Consumer Rights Bill, is still not being enforced. All the secondary ticketing sites that I mentioned still operate without a shred of transparency. How many more members of the public will be ripped off before the Government decide to take action? There is clearly an urgent need for government intervention in this market, to push forward the handful of decisive actions which are all reflected in the range of amendments being tabled today.

We know that the amendment on bots is similar to the one put forward in the House of Commons, and I want to add the name of Sharon Hodgson to that of Nigel Adams, because she has played a major role in the campaign in the other place.

[Lord Moynihan]

I am very grateful to the noble Lord for giving way because it gives me the opportunity of declaring my interest as co-chair with Sharon Hodgson of the all-party group. I echo the view that without her extraordinary energy, a lot of the cross-party support in another place would not have been secured. We should recognise that as an important contribution today.

[Lord Clement-Jones]

I thank the noble Lord for that. I will not go into the detail—it has been very well described by the two noble Lords—but measures to criminalise the use of bots were implemented last year in New York, and have since been extended to many other states. Why should the US have better legislation that we do? At a minimum, we would like to see similar legislation implemented and enforced in the UK.

I should speak very briefly to Amendment 231, because it is in my name and that of the noble Lord, Lord Foster of Bath. This amendment would give artists and event organisers greater control over who is authorised to resell their tickets. It would add to the Consumer Rights Act 2015 a provision requiring online secondary ticketing platforms to resell tickets only for events where they were the authorised resale agent. I realise, of course, that it needs further work—it probably does not quite deliver the purpose for which it was intended—but it does have very considerable support in principle, particularly, interestingly, from the Society of London Theatre and UK Theatre, both of which have written to express their support. It would place further control on the UK secondary ticketing market, putting the power back into the hands of the promoters of events to control their own ticketing by allowing resale only via authorised secondary ticketing websites, in a similar way to how an event organiser currently appoints a primary ticketing agent or agents. This amendment would allow them, if they chose to, to also appoint a secondary ticketing agent or agents to enable ticket resale. This is an important measure that, if we get the drafting right, could have a major impact.

All the measures contained in these amendments are what most sensible people would view as pragmatic steps that should help protect consumers without any real risk of unintended consequences. The only losers will be the touts. Why should audiences in the UK get anything less than the best protection? I hope that the Government will continue to move forward in this area and listen to the arguments being made. Quite apart from responding to the amendments, I very much hope that the Minister can give us some idea of when the Government will respond on Waterson—it is high time that we had a proper answer on those recommendations. I look forward to hearing what the Minister has to say.

--- Later in debate ---

[Lord Ashton of Hyde]

I agree with the noble Lord on that. The fact is that the enforcement activity is under way. We think it would be the wrong time, but I hope later to be not entirely discouraging.

[Lord Clement-Jones]

I am sorry to press the Minister further even at this late hour, but I do not quite understand. Presumably there is a conclusion to the review of the enforcement activity by the CMA, saying whether the enforcement activity is adequate, effective or whatever. Is there a timescale associated with this CMA review?

[Lord Ashton of Hyde]

I am afraid I do not know what the timescale is. Obviously there will be a conclusion, but I do not know at the moment. I will find out and let the noble Lord know if it is possible to know that.

To add to the Act now while the investigation is under way would serve only to undermine it. We must allow the CMA to carry out its investigation without interfering with the law it seeks to enforce. To do so will simply provide further grounds for those being challenged to resist.

I also have some specific grounds on each of the individual amendments, but in view of the hour, if the noble Lord agrees, and in view of what I hope I will say to help him, if I omit those details on the individual ones we can move on. I understand the aim of these amendments—to ensure compliance with the Consumer Rights Act—but this is already under way and we must await the outcome.

On Amendment 230, concerning the use of ticketing bots, the offences set out in the Computer Misuse Act have broad application. Unauthorised use of a computerised ticketing system may give rise to breaches of that Act. We are of the view that it may also constitute an offence under the Fraud Act. Professor Waterson believed that such breaches need to be reported and investigated. He puts the onus on ticket vendors to guard against the harvesting of tickets by persons with no intention of attending the event. He called on the ticketing industry to do more to protect itself and, with government support, the new National Cyber Security Centre is in touch with ticketing organisations on cybersecurity.

Professor Waterson also stressed the importance of having an effective strategy that deters bot usage. For example, paperless options such as mobile phone ticketing, or a bank card doubling up as a ticket, can make it harder to carry out mass ticket purchasing. Notably, this strategy was employed for the sale of tickets to the musical “Hamilton” in London.

The Government understand the spirit in which these amendments are made and the Secretary of State recently held two round tables specifically on the issue of bots. While noting there are a number of industry-led solutions available, we recognise it is hugely frustrating for fans who miss out on tickets sold on the primary market only to see them disappear on the secondary ticketing market at sometimes hugely increased prices. That is why we will continue to reflect on what has been said by all noble Lords regarding the Government’s response to Professor Waterson’s report, which will be published very soon. Furthermore, we will continue to consider the specific issue of bots and whether there is scope for further government intervention in this area. I hope to be able to update your Lordships on this shortly. With that commitment, I hope noble Lords will feel able not to press their amendments.

Digital Economy Bill

Lord Clement-Jones Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 6th February 2017 Lords Chamber

Moved by

[Lord Clement-Jones]

78: After Clause 29, insert the following new Clause—
“Transparency and fairness obligations
(1) Authors, artists and performers (“creators”) shall receive on a regular basis timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights as well as subsequent transferees or licensees, and the information shall include information on modes of exploitation, revenues generated and remuneration due. (2) The obligation in subsection (1) may be met by complying with a code of practice collectively bargained between relevant representative organisations of creators and the representative organisations of those who exploit their works, taking into account the characteristics of each sector for the exploitation of works.(3) Any such code of practice is to provide that each creator is to be entitled to a statement of income generated under such licence or transfer arrangements at regular intervals during each annual accounting period, and provide an explanation as to how the creator’s remuneration has been calculated referencing any contract terms relevant to the calculation.(4) In the event of failure of a transferee or licensee mentioned in subsection (1) to comply with a code of practice, or in the absence of such a code of practice, the creator shall be entitled to apply to the Intellectual Property Enterprise Court for a detailed account of revenues due to the creator generated from the modes of exploitation referred to in subsection (1), and in the event of failure, the Court may award damages in the amount of any shortfall in the total amount due to him.”

[Lord Clement-Jones (LD)]

My Lords, my noble friend Lord Foster of Bath has referred to the draft directive on copyrights on the digital single market. Many authors, writers and artists welcome the provisions to balance the playing field for creators announced in that draft directive and would like to see them incorporated in our domestic law through the Digital Economy Bill. Some of my concerns about the timing of the adoption of the directive mirror exactly those mentioned by my noble Friend, Lord Foster.

The directive proposes in article 14 one particularly important safeguard—namely, transparency: a right to regular, timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights, including details of modes of exploitation, revenues generated and remuneration due. This right will apply even if copyright has been assigned and will allow authors and performers to assess how their work has been used.

Some assignees and licensees are exemplary, but by no means all. Authors and performers under these provisions will have a right to detailed and full statements on the uses of and revenues from their work, unless such reporting is disproportionate. That in itself would be an enormous improvement on the present situation, whereby authors and artists often do not know how widely their work is used and have no way to check whether payments made to them are correct. This problem can become more acute in the digital age, when work can be disseminated in many ways and there is no physical stock which can be counted to ensure that accounting is correct.

As for music, subscription streaming is set to become the most significant revenue stream for the recorded music market in the near future. Streaming requires a fundamentally new licensing model from those who control the recording and song—lyrical and musical—copyrights, which the digital service providers wish to exploit. A complex model was developed, and is now utilised by most subscription services. The evolution of this licensing process for streaming music has resulted in a number of transparency issues for artists and songwriters which have not yet been fully addressed—not least, the presence of non-disclosure agreements between the digital service providers and the record labels, distributors, publishers and collective management organisations, which mean that artists and songwriters are not always allowed to know the revenue share and minimum guarantee arrangements that each digital service provider uses to calculate what the copyrights from which they benefit are due each month. There is also a lack of clarity over how labels and publishers apply contract terms that impact on how creator payments are calculated.

The amendment would work in a similar fashion to the proposals in the draft directive, ensure that creators can audit the royalties they receive from streaming and other services, and assess the relative merits of different services and business partners. Licensees and assignees already have systems in place for recording usage and revenues and reporting to creators. These systems are increasingly detailed in the digital age, and could easily be adapted to take account of any increased requirements. According to a medium-sized book publisher, reporting on 600 titles on the basis of spreadsheets takes 80 man hours per year, and the average time required for compiling and sending a report on a title is eight minutes. Simpler cases can be dealt with in two to three minutes, while the more difficult ones can take 10 to 15. The advantages far outweigh any cost and would help to make creative careers more attractive. Greater transparency would give a powerful message to consumers as they are generally more willing to pay for copyright-protected works if they know that fair remuneration would reach the original creators.

The directive itself is now subject to further consideration and review and may take 12 to 18 months, at best, to adopt, and perhaps even longer, as my noble friend indicated. As the Minister, or the Minister’s noble friend, reminded me recently, the Government have published a call for evidence on the copyright proposals. When will they take a definite view on the proposals, including these transparency provisions? The UK has an unparalleled opportunity to create a fairer playing field for creators by incorporating these provisions into the Digital Economy Bill, irrespective of whether we want to or can sign up to the directive. The question is whether it will. I beg to move.

[The Earl of Clancarty (CB)]

My Lords, I fully support the amendment of the noble Lord, Lord Clement-Jones. I do not have much to add to his thorough analysis of the issue other than to say that the right of artists, authors and performers to know what is being done with their work, and to obtain fair remuneration for the exploitation of it, is incontestable. This amendment would, in an effective manner, enshrine that right.

In one sense, information is money. This amendment will doubtless have hidden benefits in that anything that can be of further help to artists, particularly those who are less well off, to survive and thrive, and, perhaps, to become the high earners of the future, is a worthwhile long-term investment and can only be good for the individuals, the creative industries and the UK economy as a whole.

[Baroness Buscombe]

My Lords, I thank the noble Lord, Lord Clement-Jones, for raising this issue. Our creative industries ultimately depend on the efforts of authors, musicians and other creators, and I agree with the principle that they should be fairly remunerated when their works are used. We want to create an environment where the UK’s creative industries can continue to thrive and retain their world-leading edge. The creative content tax reliefs are one of the Government’s flagship policies, and the film tax relief alone supported over £1 billion of expenditure in the UK in 2015-16. The Government are also investing in skills to create a pipeline of future talent. Since 2013, we have made available up to £20 million match funding to the skills investment fund to help employers address priority skills needs in the screen sector. Over the last 18 months, this has supported more than 500 graduate placements.

The amendment would require those organisations exploiting copyright works via licences to provide the relevant creators with regular information on their use and the revenue they generate, and states that this obligation could be met by complying with a code of practice determined at sector level. It would also provide creators with recourse to court if these requirements are not adhered to. The principle of transparency is an important element of well-functioning markets. I am aware that some creators and their representatives find it difficult to access information on the use of their works owing, for example, to difficulties in negotiating suitable contractual terms. I am, however, happy to confirm to your Lordships’ House that the Government are already engaged in discussions to address this issue. The European Commission has made proposals in this area as part of its current draft directive on copyright, and the UK will actively engage in these debates while we remain a member of the European Union. As such, I hope the noble Lord, Lord Clement-Jones, will understand the Government’s wish to allow this process to develop before considering the case for domestic intervention.

I welcome the noble Lord’s recognition in his amendment of the important role that collectively agreed industry standards can play in this space. Creators and publishers alike have highlighted the role that such standards can play in improving transparency and fairness. Examples in the UK include the Publishers Association’s Code of Practice on Author Contracts, and the fair digital deals declaration operated by the Worldwide Independent Network. I believe that it is worth giving careful consideration to the part that these industry-led initiatives can play, and I hope the debate at EU level will be a chance to explore that. With this explanation, and the assurance that these issues are under active consideration, I hope the noble Lord will withdraw his amendment.

[Lord Clement-Jones]

My Lords, I thank the Minister for an extraordinarily well-crafted response—it seemed to throw bouquets in various directions, but I am not quite sure where the petals will fall at the end of the day. It was splendidly positive at the outset, and I felt a speech on industrial policy for the creative industries might be coming on. I thank the noble Earl, Lord Clancarty, for his very supportive contribution.

The Minister talked about transparency being an important element of a well-functioning market and went on to talk about codes of practice, the Government’s active engagement in discussions of elements of the EU draft directive, and so on, but she never actually agreed that the principle of transparency should be incorporated into UK law. Clearly, if the EU directive is passed within the two-year period after notice of Brexit is given, it may well be incorporated into UK law. However, the Minister did not say, “Yes, and moreover, given the call for evidence, we have heard the evidence on transparency and we fully support that element of the directive”. It was rather a case of saying, “Let’s keep talking and actively engaging”, and so on and so forth. I suspend disbelief slightly given that the Minister supported the principle but I am not sure she went so far as to support its incorporation into law. That is a rather different matter. We may well return to this issue on Report. In the meantime, I thank the Minister and beg leave to withdraw the amendment.

Amendment 78 withdrawn.

Digital Economy Bill

Lord Clement-Jones Excerpts

Committee: 3rd sitting Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Hamwee]

My Lords, I will just pick up the noble Baroness’s last point about who is an official. There are examples, in other legislation, of references to “senior officials” and “designated officials”, which might be somewhere between the junior official she has in mind and the Permanent Secretary, but she is right to draw the issue to the Committee’s attention.

On an earlier group, the noble and learned Lord indicated that he was going to speak at greater length—I assume that may be on this group—on the reason for using the term “personal information” rather than “data”. Perhaps I may use my noble friend’s Amendment 213 to ensure that we get to share more of Government’s thinking. I understand the point about corporations, since in the one case, they come within the group covered, and in the other they do not. But I am still puzzled as to why such efforts have had to be made to deal with personal information and then to add in references to the Data Protection Act, rather than starting from the DPA—with any necessary exclusions—which would have taken us straight to the involvement of the Information Commissioner, the data protection principles and so on.

I wondered during the Statement whether to have a go at some alternative drafting for Report, but thought I had better wait for this discussion. But perhaps part of it boils down to a question on Clause 33(8), which says, in wording replicated elsewhere, that,

“nothing in section 30, 31 or 32 authorises … a disclosure which … contravenes the Data Protection Act”.

To look at it from the other end of that telescope, is there any personal information which is the subject of the Bill that would not fall within the DPA and therefore not be protected by that clause?

[Lord Clement-Jones (LD)]

My Lords, I thought I would intervene to see if it might help the Minister. The code of practice does not make things any clearer. With reference to my noble friend’s very apt point about information versus data, paragraph 4 of the code says:

“The definitions of ‘personal information’ contained in the Bill are intended to ensure that the information shared through these powers is handled carefully”.


That does not sound like a particularly good legal answer to the question. It goes on:

“Though the definition of ‘personal information’ for the purposes of the Bill may differ from the definition of ‘personal data’ in the DPA, all information shared and used under the public service delivery, debt and fraud provisions must be handled in accordance with the framework of rules set out in the DPA”.


Where is that explicitly set out? It would be very helpful if the Minister, in answering, could advert to that as well.

Digital Economy Bill

Lord Clement-Jones Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

Moved by

[Lord Clement-Jones]

113: Clause 39, page 38, line 23, leave out from “that” to end of line 26 and insert—
“(a) the authority or civil registration official to whom it is disclosed (the “recipient”) requires the information to enable the recipient to exercise one or more of the recipient’s functions, and(b) the data subjects whose information is being disclosed have given valid consent under data protection legislation.”

[Lord Clement-Jones (LD)]

My Lords, I wish to speak also to Amendment 116.

This issue is extremely straightforward. My remarks may anticipate some of the points that the noble Baroness, Lady Byford, will make in due course on the clause stand part question, for which we have considerable sympathy. However, we on these Benches and many others outside the House are deeply concerned that Chapter 2 of Part 5 contains no safeguards against bulk copying of civil registration data. We accept the case for a power to disclose civil registration information where an individual has consented. A citizen should, of course, be able to choose to let the registrar inform other bodies of changes. However, new Section 19AA in Clause 39(2) appears to remove any limit to copying registration data in bulk. As regards the draft civil registration code of practice, there appears to be no explicit limit on that sharing of data in bulk, and certainly no requirement for individual consent. Therefore, the essence of this amendment is quite simply to require that there should be express consent of the data subject.

As regards Amendment 116, approximately 1.3 million births and deaths are registered each year under legislation dating back to 1953, which consolidated provisions going back to the start of civil registration in 1837. In 2009, a system was introduced to allow registrars to register births and deaths electronically but it is the hard copy which this generates which is the legal copy that will be used to issue the certificates. Registrars also have to use the electronic system to submit an electronic copy of each event to the superintendent registrar. Primary legislation is required to make the electronic copy the legal copy and to remove the need for paper altogether, although individuals could still order hard-copy certificates should they so choose.

It has been estimated that such a move would save the local registration service and the Home Office around £2.5 million a year, primarily through removing the routine creation of registers containing loose-leaf, watermarked registration documents. Local authorities currently have to pay to store hard copies of all documents, so the change would reduce future storage costs. Provided that sufficient checks are in place, electronic documents are more secure than paper ones, which is particularly important when loose-leaf documents are being moved.

I hope that I have made the case for this amendment, which is very much supported by many in this field, and I hope that the Minister will look favourably on it. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

It does not extend to Scotland. It is a provision pertaining to England and Wales. I am obliged to the noble Lord for giving me time to find my place in my notes. It is greatly appreciated.

As I said, the proposals in Chapter 2 of Part 5 will ensure that citizens are able to access future government digital services efficiently and securely, while removing the current reliance on paper certificates. I will address the two amendments first before addressing the clause stand part aspect of this debate.

Amendment 113 would add a requirement for a civil registration official to be satisfied that the information is required by a recipient to fulfil one or more of their functions before disclosing data and also seeks to add a requirement that an individual must have given valid consent under data protection legislation prior to any disclosure of their personal data. With respect, this amendment is unnecessary because disclosure of personal data under these clauses will already be subject to the provisions of the Data Protection Act. To require explicit consent in all cases would exceed the requirements of the Data Protection Act and the purpose of this clause. Disclosure will take place without consent only if to do so would be consistent with the Data Protection Act, which governs fair disclosure. Examples of how the powers would be exercised in practice include allowing registration officials to disclose information within and across local authority boundaries in order to safeguard children. Being able to share information will ensure that children are known to the local authorities in which they reside and action can be taken to address any needs of the child or the parent. That is what lies behind this matter.

Amendment 116 seeks to amend the Births and Deaths Registration Act 1953 to introduce an electronic register for the registration of births and deaths. However, the proposed amendment to Section 25 of the 1953 Act as currently drafted does not go far enough. The legislation which provides for the registration of births and deaths is based on legislation in place in 1836—or 1837—and very little has changed to the process of registering births and deaths since then. The Act would need more amendment in order to introduce an electronic register. Moving to an electronic register would remove the requirement for hard-copy registers and the electronic register of births and deaths would be the legal record instead of the paper registers. It is certainly an area of reform that the Government are keen to take forward. However, we need more time. I reassure noble Lords that the Government will look in more detail at what changes need to be made to the Act in order to bring in this change and we will consider legislating in due course. We recognise the benefits that the noble Lord, Lord Clement-Jones, suggested could be achieved once that entire process is completed. In light of those points, I hope that the noble Lord will agree not to press that amendment.

I turn to my noble friend Lady Byford and her opposition to the clause standing part of the Bill. Unless there is a specific statutory gateway, information from the records of births, marriages, civil partnerships and deaths may not be disclosed by registration officials other than in the form of a certified copy of an entry, such as a birth or death certificate, on payment of the statutory fee. As I have indicated, the system is outdated and based on paper processes from the 19th century. This clause introduces new data-sharing powers that allow registration officials to share data from birth, death, marriage and civil partnership records with public authorities for the purposes of fulfilling their functions. However, only the minimum amount of data will be provided to enable the public authority to fulfil the function.

My noble friend asked for examples of the benefits of sharing such registration data. Being able to share data about deaths with local authorities would assist in combating housing tenancy fraud. The National Fraud Authority estimates that housing tenancy fraud costs local authorities £845 million each year. An example of this is when someone continues to live in a property following the death of the tenant even when they have no right to do so. The sharing of birth data within the local authority would assist social services, for example, if they wanted to engage with one of the parents in the interests of a child. Sharing marriage data would help to target those living together if there were a fraudulent claim to be single for the purposes of claiming benefits. Sharing death data within local authorities would help them to recover medical equipment following the death of an individual.

There are many examples where such data sharing would be of assistance. It paves the way for citizens to access government services more conveniently, efficiently and securely, for example, by removing the current reliance on paper certificates to access services. This will provide more flexibility and will modernise how government services are delivered. An example is where registration officials will be able to share data on births that have occurred in one district, but where those concerned live in a neighbouring district with no hospital. This would allow local authorities more accurately to plan the provision of health care, school planning and other local services. Being able to share death data across boundaries will also help to prevent unwanted mail being sent to the family of a deceased person.

Registration officials will be able to share registration data only with the public authorities defined in new Section 19AB of the Registration Service Act 1953. Any data sharing will of course be carried out strictly in accordance with the requirements of the Data Protection Act. The sharing of registration data will be underpinned by a statutory code of practice as required by Section 19C. One of the requirements in the code will be that the Registrar-General must personally approve any request for the sharing of large amounts of data.

Before data are shared, the code of practice requires privacy impact assessments and data-sharing agreements to be drawn up and agreed with public authorities to include such things as how data are to be used, stored and retained. Data will be able to be used only for the purpose they have been provided and retained only for as long as necessary. Data-sharing agreements will forbid the creation of a database or the linking of registration data in any way. Any breach would be reported to the Information Commissioner, who has the power to impose penalties where it is appropriate to do so. I hope that that deals with the fears expressed about the bulk use of such registration data.

[Lord Clement-Jones]

My Lords, I am not sure whether the Minister has dealt with the questions raised by my noble friend.

[Lord Keen of Elie]

I apologise for omitting to respond to the questions asked by the noble Baroness, Lady Hamwee, by reference to the fact sheet. Rather than poring over the provisions of the Bill, I will undertake to write to her pointing out the cross-reference between the terms of the fact sheet and the relevant provisions in the Bill. I will place a copy of that letter in the Library.

[Lord Clement-Jones]

My Lords, I thank the Minister for his response, but I am a little bit baffled. Here we are—and I am talking here particularly with reference to Amendment 116—discussing the Digital Economy Bill. It should be doing what it says on the tin. I put forward, in my name and in the name of my noble friend Lady Scott, who is the inspiration behind the amendment, something that would make sure that it was the electronic copy that was the legal copy. Here is the Minister saying—and I do not think I have ever had a Minister say this to me—that the amendment does not go far enough. That is a very joyous response, but on the other hand he wants more time and “it will all happen in due course”. This is the Digital Economy Bill: what other opportunity are we going to have to ensure that our Registrar-General and so on—the General Register Office and local authorities—are under a legal obligation to hold electronic copies rather than the old, steam-driven paper copies? We have been doing this since 1837 or 1836, as we heard earlier. Is it not about time that we changed our practices, and is it not possible that we have been cooking up an amendment over the last 50 years that might suit the book and be able to appear on Report? That is my response on Amendment 116.

My response on Amendment 113 is a little bit dustier. I have read the code of practice, and I accept the Minister’s assurances; throughout this process he has given a lot of assurances about the impact of the Data Protection Act. There is no doubt about that: either explicit consent or, where no explicit consent is given, it is in accordance with the Data Protection Act and so on. There are some very worthy purposes in terms of data sharing: safeguarding children was an absolutely splendid example for the Minister to produce, and he produced some very good examples to the noble Baroness, Lady Byford, as well. Of course, there are some very good examples, but the code of practice is very opaque in that respect. It really does not get into any of that kind of worthy purpose: it simply talks about disclosing in accordance with the Data Protection Act. I looked through when the Minister was talking to see whether it was the Registrar-General who was the one person who was going to authorise disclosure, and it seemed to me that there were an awful lot more people who were authorised to disclose than simply one person.

There is something defective about these codes of practice. They seem to be far too bland and they do not give the public the reassurance that they should. We have talked about public trust right across the Committee, and the fact is that the reason why so many amendments have come forward from a variety of different sources to this part of the Bill is precisely that lack of trust. I suggest that the Minister and his colleagues look again at whether these codes of practice are doing their job.

That is another reason why, at the end of the day, these codes of practice should be approved by Parliament. That has also been a running theme of the Delegated Powers and Regulatory Reform Committee, which had it absolutely right in every single chapter that it dealt with. These codes of practice should be approved by Parliament. Otherwise, I do not believe that the Government are going to build that public trust in this data sharing, which is absolutely essential. The Minister should look again at that aspect, but in the meantime, having given the Minister a hard time at this time of night, I beg leave to withdraw the amendment.

Amendment 113 withdrawn.

21st Century Fox Takeover Bid for Sky: Timetable

Lord Clement-Jones Excerpts

Tuesday 20th December 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. Of course I appreciate that the relevant public interest test was incorporated into Section 58 of the Enterprise Act 2002, pursuant to the Communications Act 2003. However, the legislation is absolutely clear: the Secretary of State has to proceed to make a determination exercising a quasi-judicial function. Accordingly, it would not be appropriate to lay her decision-making process before either House before that determination is made.

[Lord Clement-Jones (LD)]

My Lords, the Minister has made much of the integrity of the process and the role of the Secretary of State in determining the public interest. Would not the public interest best be served by the Secretary of State asking Ofcom to make another “fit and proper person” assessment of James Murdoch, who by only a gnat’s whisker got away with being declared not fit and proper last time? The situation is relatively unchanged, except that we have had the conclusion of Leveson in the meantime.

[Lord Keen of Elie]

I am obliged to the noble Lord. I am not sure of the legal definition of a gnat’s whisker and therefore am not in a position to comment on the scope of the Ofcom outcome and its application to James Murdoch in those particular circumstances. Nevertheless, in so far as there is a relevant question of public interest, that is a matter for Ofcom, which will no doubt proceed as it is bound to in terms of the 1990 Act.