Data Protection Bill [HL]

Lord Finkelstein Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Baroness Cavendish of Little Venice (Non-Afl)]

My Lords, I want to briefly bring us back to Amendment 50A of the noble Baroness, Lady Hollins. I declare an interest; I have been a journalist for about 15 years and have won several prizes for investigative journalism. One of my campaigns, which exposed miscarriages of justice, led to the Blair Government changing the law in 2009. Looking back on that case—and the Rochdale and Rotherham sexual harassment and grooming cases, which I was involved in as part of the investigative team at the Times—I feel that the use of “necessary”, which the noble Baroness is suggesting, is fraught with more difficulty than it may appear.

It is perhaps difficult to understand quite how difficult it is for journalists to do some of the deep, preparatory investigative work that results in some of these exposés. The vested interests arranged against the exposure of some of these cases are phenomenal; the legal remedies available are quite significant. Indeed, I think someone mentioned earlier that, only two years ago, the Sunday Times was faced with the threat of an injunction and civil proceedings for the publication of what turned out to be completely accurate information about doping among gold-medal athletes. That paper was protected under the Data Protection Act 1998, but the cases were brought under that Act. It is important to remember that journalists do not have the entirely free hand that we perhaps imagine.

I find myself standing in this Chamber, which has historically been a bastion of freedom, and looking at a series of largely well-meaning amendments that would amount to a shift towards presumption of privacy, which would protect precisely the kind of vested interests that I have spent part of my career challenging. I come back to the point about necessity: as the noble Lord, Lord Pannick, suggested earlier, it is extremely difficult to understand, as a journalist, how this would work in practice. The definition of what is necessary seems extremely difficult. I foresee that that would be a gift to those who have an interest in preventing the investigation and publication of their activities—some of whom would be perfectly innocent and some of whom would be precisely the kind of people that this House would want to expose, I hope—because it would enable them to debate the definition of necessity and to delay investigation, potentially stopping it altogether. Delay is an enormously powerful weapon—do not underestimate it—when people are up against newspapers; do not forget about local newspapers, which sometimes have extremely limited resources.

I am deeply worried about the wording of the amendment; I would prefer the House to support Amendment 50.

[Lord Finkelstein (Con)]

My Lords—

[Lord McNally (LD)]

We need to get to the Front Benches soon. I am sorry but I think the Times newspaper has had quite a good run tonight.

--- Later in debate ---

[Lord McNally]

I am grateful for that accurate intervention. The noble Lord, Lord Berkeley, asks from a sedentary position what the answer is. The noble Lord, Lord Low, is right: the Government have not gone ahead with Section 40. The Government have sat on their hands.

All I will say in conclusion is that the media can roll out all their lawyers and journalists, and they can write their editorials suggesting that we are attacking press freedom: they know it is rubbish and not true. Unless the Government deal with the real hurt, problem and exposed faults of the media, this will continue. A sensible, smart Government—one advised by the noble and learned Lord, Lord Keen—would deal with these problems now rather than let it drag on into 2018, as it will. We will vote for the amendment.

[Lord Finkelstein]

I hope the noble Lord, Lord McNally, will forgive me, but I feel his comments require response. I recall at a university meeting when we had to discuss rules for debate, one student started a speech with, “I’m a liberal, but I’m against free speech”. I notice we have a very large turnout of both small “l” and big “L” liberals in the House, which usually suggests we are about to ban something. I am very sorry to be on the other side from the noble Lord, Lord McNally, who has been my inspiration and mentor for many years, but I have to disagree with him on this.

First, the proponents of these various amendments argue that these changes are not an attack on free speech but, in practice, they are. They tilt the balance against investigative journalism, scrutiny of the powerful and legitimate inquiry. The high bar introduced of necessity would have a chilling effect for anyone who has worked on practical investigations. What will happen is not so much that the law will be used, but that it will never be used because investigations will not take place.

Secondly, the proponents say that this is not about state regulation of the media, but it is. It will be done in two ways. The Information Commissioner will end up with so much power that he or she will become a press regulator whether or not he or she wishes to. That would be the impact of Amendment 55. At the same time, newspapers will be pulled against their will into Impress, which has been the burden of several remarks in this debate. That is also an aim of Amendment 55. It is simply nonsense to say that all that is being sought is voluntary self-regulation when the failure to volunteer or regulate in a state-approved way and be licensed by a state body is backed up by repeated attempts to penalise and punish, as these amendments would do.

Thirdly, the proponents say that all we will be doing is controlling behaviour, not content. I am afraid that this is wilfully naive. Impress has been named as a regulator. That choice by the panel is instructive. The behaviour of the staff and board of Impress, the body the panel has approved, shows quite clearly the agenda being followed. Its chief executive has been sharing views such as:

“John Lewis is bringing its name into disrepute by advertising in a Neo-Fascist rag”,


and:

“I do like @StopFundingHate’s campaign to defund racist media”.


This means it cannot claim to be the independent regulator the noble Lord, Lord Low, talked about. This is apparently acceptable as charter-approved behaviour, yet some noble Lords are critical that national newspapers are suspicious of the charter and fear Impress.

My fourth point is very important because the noble Lord, Lord McNally, said this in Committee. I respected it and listened to it. He said that newspapers have “got away with it”. This is not the case. People went to jail, newspapers closed and the regulatory system changed utterly. Those of us working in the industry all know and agree that there has to be change. Anyone who thinks that there has not been has not read a newspaper or been in a newspaper office since the scandal broke. I respect and understand the pressure for change, but you have to take “yes” for an answer.

Finally, there is a suggestion that the public are crying out for further regulation and more inquiries. People who advance this argument must have been in different constituencies from me. The attempt to hijack Bills to bully the press into compliance is a diversion from the public interest and there is no public pressure for it. Of course, it is right to insist on high standards of behaviour, but to introduce amendments designed to help powerful people keep secrets and to make free publication harder is an odd position for liberals. All I ask is that we do not remove protections in Britain enjoyed by Europeans. Normally, this rallying cry is very effective in this House. Let us hope that it is today.

[Lord Stevenson of Balmacara]

My Lords, I had better deal with Amendment 55, which is in my name and that of my noble friend Lord Kennedy. I am loath to do so at any length, so I simply say that it will be answered by the Minister when he responds. He has partially given me the answer and it would be wrong for me to anticipate the rest of it. I reassure him that I do not intend to press that amendment.

This debate is not about free speech; it is the latest exchange in a long-running debate on how in a democratic society we enshrine the press’s freedom to publish as it sees fit, root out the culture of abuse, illegality and criminality which has for too long involved all the newspapers at some point or other, and make sure that victims can get effective redress when such abuse happens. We should not lose sight of those cardinal aims.

If the House believes that everything in the garden is rosy, as the previous speaker tried to persuade us, we can of course do nothing and simply allow the Data Protection Bill to go forward as amended. I agree that the Minister has moved a long way and agree with the noble Lord, Lord Black, that we could now rely on the processes and procedures that have worked so well since 1998—for nearly 20 years. They could be allowed to continue, because they are tried and trusted and seem to do most of what we require.

But it is not like that. One could not listen to my noble friend Lord Prescott and the noble Lord, Lord McNally, for any length of time without feeling that there is still a canker. Something needs to be cut out of what we currently do and we are failing as a House if we do not do what we must to get this right. We have a lot of problems. We had a cross-party agreement; that has gone. We have let down the victims grievously time and again. We are unable to discuss this without accusations of a ridiculous nature being thrown at us about our intentions and processes. We need to do this properly; we need to do it coolly and with some consideration. We need evidence of the changes that are affecting the press. Is it true that the traditional press as we know it is going down the tube? Is it true that fake news, other news sources and the other things that our children are reading and reporting to us will destroy our understanding in a democratic society of what it is to be informed about the way things are done? Will we lose the extremely good points made by the noble Baroness, Lady Cavendish, who said that she was an investigative journalist and proud of her record, which is exemplary? We want that to continue, but we do not want people such as the noble Baroness, Lady Hollins, to suffer as a result of it. We have to be mature about this; we have to get it right.

I have an amendment, Amendment 165, to be taken on Wednesday 10 January—buy your tickets now—which will rehash a lot of our discussion today. It is focused on running a proper inquiry into what needs to happen now to deal maturely with the issues which the press does not wish to be regulated. It tries to find a way forward, to investigate the illegality of the past and learn lessons from it. Above all, it seeks to get a handle on this whole issue and come forward with a proper set of recommendations that we can implement. I hope that the House will look at that carefully when we come to it. In the interim, my advice to the noble Baroness, Lady Hollins, whom I admire for the fantastic work she is doing and I want to be with her on it, is to withdraw her amendment now and live to fight another day on 10 January.

Data Protection Bill [HL]

Lord Finkelstein Excerpts

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I was not going to speak, but I feel impelled to do so. I have no time for the media. I have been libelled and I disliked the experience a great deal. But what we are being asked to provide is a remedy. They are saying that the current remedies will not do and that the remedy is an inquiry. As a judge, I have chaired a number of inquiries, and there are other former judges in this House who have done so. They are inevitably long-winded. This one would go on for a very long time, so I would ask this question: what sort of remedy would there be at the end if the inquiry is mired in a huge number of lawyers making a great deal of money out of defending all sorts of groups of people? At the end of the day we would get—what?—a report.

[Lord Finkelstein (Con)]

My Lords, I first declare my interest as a Times columnist. Perhaps I may also start by thanking the noble Baroness, Lady Hollins, for the opportunity to listen to what she had to say, which it was impossible to do without regarding it as moving and passionate and a cause for reflection. It would be an insult to free debate if I did not say to the noble Baroness that listening to her has made a deep impression on me. I thank her for what she had to say.

I am afraid that I do not agree with the remedy being proposed by the noble Baroness. Perhaps I could propose a minor procedural innovation, which is that before people go through the Division Lobbies and vote for a further inquiry, they might be required to provide evidence that they have read all of the previous one. It ran to 2,000 pages, with 115 pages on data protection, which people may not have come across because they started on page 997. The noble Lord, Lord Paddick, suggested that a second inquiry which delved into the relationship between politicians among others and the press was a good idea. That inquiry was also conducted by Leveson. I know that because I was in it. It was set out in the third volume, and not many people who were not working in the legal departments of newspapers mentioned it to me.

I understand the comment from the noble Lord, Lord Lipsey, about the Times’ comments this morning. It is the normal habit of columnists to say, “I didn’t write the headline”, but in this case I am happy to stand behind it. Of course I understand that nothing would occur less to noble friends and noble Lords than to attack free speech—nobody thinks that that is what they are doing, and de jure they can claim that it is not what they are doing—but please do not have the impression that, de facto, it makes no difference to the free publication of criticism and newspapers if we have yet another inquiry. I know that it is not what the motivation is, but it is effectively harassment to continue to ask the same questions and have inquiries into the same issues. We have heard many moving examples that are covered by two things. They were either raised by the Leveson inquiry or they are capable of being dealt with by criminal, political or arbitration solutions. The idea of having another inquiry therefore justifies how the Times put it this morning.

[Lord McNally (LD)]

My Lords, I am not a lawyer or journalist. If I was to describe myself as anything it is a jobbing politician. But each and every one of us in this House has to make their decision as a jobbing politician. Quite frankly, and with the utmost possible respect—I know that is what you always say when you are about to be rude—having listened to the lawyers, my head spins. That is why, in the end, we have to make a political judgment.

The truth is, we are where we are because the press that the noble Lord, Lord Black, speaks for—I make no criticism of that—decided that they would not co-operate. We could have had a working system backed by a royal charter from the beginning. Those of good will on all sides could have made that effective. It was the decision of the noble Lord and his friends not to make it work. Everything we have had since then flows from that determination that they would not make the legislation, which passed through both Houses with massive majorities, work. That is why we are in the position we are in now.

We then have to add to that the fact that, sadly, the Conservatives decided to go back on the pledge that the Prime Minister of the day made to the victims that they would have the full second inquiry. They put it into their manifesto, which, noble Lords may have noticed, did not get the approval that they would then claim as a strength in this House.

The position we have now is that the consultation is in the works. Lord Leveson, who must be a glutton for punishment, has said that he wants to look at not only the conclusions, but the submissions and will make positions of his own. What worries me is that, unless we do something tonight to send this matter forward to the other place, it will be taken out of the hands of Parliament. It is a rough old way of doing it, but by passing this amendment it will go to the Commons at a time when the Commons will be cognisant of the amendment as an opinion of the House of Lords, the outcome of the consultation and the opinions of Lord Leveson. That strengthens the position of Matt Hancock, the new Secretary of State—an appointment I very much welcome—but we all know how it works: Ministers in the department may be very willing to give assurances that we will have an inquiry somewhere down the line, but then they will get a call from No. 10 saying, “You can’t: you won’t do this”. We have to strengthen the hand of Ministers who want to carry this through to a proper and honourable conclusion.

We have again heard all the usual arguments. There is no threat of state control of the press. I say to the noble Lord, Finkelstein, to look again at that headline and see whether he is still proud of it. Another Lord Attlee once said he only read one newspaper, the Times, and that was for the cricket scores. I am not sure he would trust the cricket scores these days.

One pertinent item of briefing noble Lords will have had, and to which a number of Members have alluded, was in the rather shrill briefing paper from the News Media Association, which says that,

“the industry faces acute challenge from global digital platforms which reap commercial rewards from the news industry’s investments, yet invest nothing in news content themselves and are treated as mere conduits, with freedom from the responsibilities and liabilities of publishers”.

As the noble and learned Lord said, that is the real challenge to the press. The noble Lord is diverting and losing friends by this obstinate refusal to build the strength that would come from royal charter-approved press regulation. I know that he worked with the PCC, but this is not a 10-year problem. For the last 30 years, we have had this problem that press regulation by itself has never carried credibility. It did not carry it in his day, which is why they got rid of it. If I can remember rightly, they got rid of the one before that in the midst of a scandal. They will probably get rid of IPSO when the next scandal comes along, because it will not work.

I suggest that we strengthen the hands of Ministers by passing these amendments to make sure that, when it goes to the Commons, there is an opportunity in the light of all the facts to make a fully informed decision. I was one of the Ministers who signed the royal charter. I can assure the House that for both Conservative and Liberal Democrat Ministers—we were in full consultation with the Opposition at that time—the one thing we wanted to avoid was any sniff or smell of state regulation. The real intention was to protect the press, not just the press owners. My belief is that, if they had followed through on the royal charter and had a proper regulator, it would protect individual journalists. I always remember during another scandal a very senior member of the Times had just rewritten their regulations yet again. I said, “What if the Daily Mail scooped you on something that you decided was prevented by your new charter?” He said, “Rupert would fire me”. It is that that we want to protect individual journalists and their integrity from.

This would be a step forward. It would keep the political debate going in the place where it needs to be made—the House of Commons. We should make sure that we vote as politicians, thinking about the reality of it. All my life in politics I have made judgments on things by looking around and seeing who was smiling. If noble Lords defeat these amendments, those who will be smiling are those who have done most damage to the press by what they did while in charge of the press. Those who will be in despair are those individual citizens who have not seen their privacy or civil liberties protected. The House would feel ashamed of itself.

--- Later in debate ---

[Earl Attlee]

My Lords, I am extremely grateful to all noble Lords who have contributed to these exceptionally important and good-natured debates. It may be helpful to your Lordships if I say that I do not propose to move Amendment 215, which is later in the Marshalled List, but I shall move Amendment 216.

I know that I enjoy considerable support around the House, but we need to be sure that we are doing the right thing in sending this matter to the House of Commons. That is why contrary voices and cautious voices are welcome. I am not convinced that my noble friend Lord Black is correct in claiming that these amendments will result in state regulation of the media and the press. He is correct in stating that the royal charter can be changed, but it requires a two-thirds majority in the UK Parliament, including in your Lordships’ House. The most important point is that it requires the unanimous approval of the press recognition panel, not to mention the Scottish Parliament.

As my noble friend recognises, the reality is that it would be far easier to insert some new primary legislation to deal with a perceived problem in the future. That would be rather more difficult to get through Parliament if we already had a good system of independent press regulation in place. Sir Brian Leveson considered these arguments and many more from press representatives, and he was clear in his view that only the recognition system proposed in his report can provide a regulator that is genuinely independent of politicians and the press. Sir Brian said that the incentives I propose are necessary, and I am sure he would not describe them as blackmail. I am at one with my noble friend about the need for a genuinely free press, and I honestly believe that my amendments help.

My other point about so-called state regulation is this: there is already state regulation of the press by means of the courts. Judges are appointed by the state and their level of remuneration, which needs looking at, is ultimately approved by the Prime Minister. A multimillionaire can prevent publication by threatening a publisher with court action with unsustainable and uncertain legal costs. These amendments, which are similar to Section 40, can protect publishers while also providing the public with the protection from press abuse that they need and deserve. I hope that the House, when it considers this amendment, will think of victims who were left powerless after some newspapers, in the words of Sir Brian Leveson,

“wreaked havoc in the lives of ordinary people”.

I hope newspapers will be encouraged to join a recognised regulator to give their own journalism the protections this cost-shifting provision provides while also ensuring that their readerships are similarly protected. I beg to move.

[Lord Finkelstein]

My Lords, I wanted to ask—

[Noble Lords]

No!

[Lord Bassam of Brighton (Lab)]

We have had the debate already. We should now move to the vote.

[Lord Finkelstein]

I am just asking a question, although I thank the noble Lord for his advice. There is a consequent question, subject to the vote we have just had, that I think changes the situation. I just wanted to have my noble friend Lord Attlee’s view—

[Noble Lords]

No.

[Earl Attlee]

My Lords, my noble friend is in order.

[Lord Finkelstein]

What would my noble friend’s reaction be if the inquiry that we have just voted for determined that the proposal that he has just made is a foolish one?

[Earl Attlee]

My Lords, the answer to that question is simple, and applies to Section 40. If the Government determine that Section 40 is not a good idea, then they should repeal Section 40 by means of an Act of Parliament. They could do the same if my amendment is agreed to.