Data Protection Bill [HL]

Lord Low of Dalston Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

I am absolutely delighted to know—with no prejudice against the other distinguished Ministers on the Front Bench—that the noble and learned Lord, Lord Keen, is going to reply to this debate. His forensic mind will fillet out the points that have been made, and we will be able to study Hansard tomorrow to find very clear reasoning for the Government’s actions, and then make a considered judgment of what we are going to do at Report.

[Lord Low of Dalston (CB)]

My Lords, I speak in support of the amendments tabled by the noble Baroness, Lady Hollins, those in the name of the noble Earl, Lord Attlee, and Amendments 185E and 185F, in the name of the noble Lord, Lord McNally, who has just spoken.

A range of amendments in this group relate to journalism and have different effects. It would be easy to characterise some of them as being in favour of greater press power and others in favour of reduced press power, but that would be wrong. The amendments that I am speaking to would implement and support the recommendations of the Leveson report. That report was a compromise—a split down the middle of the free speech concerns of some, and the concerns of others for the victims and wider public. Some of the other amendments in this group—not all of them—seek to undermine that compromise. When we have debates about Leveson, let us remember that they are not simply debates between the interests of the press and those of the public, but between those who have accepted the compromise and those who will not give an inch. Let us also remember that government inaction is what inspires the rejectionists to persevere.

Amendment 179A, in the name of the noble Baroness, Lady Hollins, would require the Government to proceed with a public inquiry into data protection breaches committed by or on behalf of newspaper publishers. This is long overdue. Such an inquiry is clearly merited after the scale of the abuses and breaches which were made clear in Operation Motorman and since. Court cases still being settled over the last year, with more expected, relate to this conduct. Of course, all parties agreed that such an inquiry was needed in 2011 and established the Leveson inquiry, but that part of the inquiry has still not proceeded. Instead, the Government have twisted and turned to satisfy the interests of the press, which calls for public inquiries into everything but its own scandals. I wonder why that might be. I hope that the Government will respond by beginning Leveson part 2.

The amendments of the noble Baroness, Lady Hollins, to Clauses 164 and 166 would prevent publishers accessing a staying mechanism which would in effect prevent pre-publication data protection claims ever being brought. This is anomalous, given that libel law allows such claims to be brought. There is no good reason for keeping the stay so long as the journalistic exemptions are protected. This amendment does not affect those exemptions and should be supported.

Amendments 170AA, 170AB and 170AC in the name of the noble Earl, Lord Attlee, replicate the terms of Section 40 of the Crime and Courts Act 2013, which this House voted for, as did the other place, but do so only for data protection claims. It remains a constitutional travesty that the Government have autocratically prevented Section 40 coming into force, using the executive power of non-commencement. Providing the costs protection and regulatory incentive of these amendments for data protection claims is a worthwhile objective in itself. If the relevant amendment also helps make the point to the Government that it is unacceptable to reverse a parliamentary vote in this way, then it will have served a second useful purpose. The amendments of the noble Earl, Lord Attlee, would also restore conditional fee agreements for data protection claims. Conditional fee agreements would ensure that the public are able to access justice even if Section 40 does not apply.

Amendments 185E and 185F, in the name of the noble Lord, Lord McNally, respond to five Select Committee reports, the Leveson report and multiple remarks, reports and representations from the Information Commissioner’s Office, allowing custodial penalties for the most egregious cases of data theft. It is not envisaged that many, if any, individuals would be sentenced in this way but, put simply, the mountain of evidence on the matter shows that a fine is not an adequate deterrent and is simply treated as no more than an overhead for the illegal trade in personal data. I therefore believe it important that the House should support the amendments of the noble Lord, Lord McNally.

[Lord Puttnam (Lab)]

It might surprise the noble Lord, Lord Black, to hear that I think his amendments are important and well worth discussing and crunching out. I listened to his speech very carefully. I will check Hansard tomorrow, but I think that he used the word “reasonable” about a dozen times. However, I ask him to consider that if he wants the sympathy of the House and of Parliament, he has to accept the fact that the reasonable expectations of reasonable people for the media to behave in a reasonable way is the way to go about this. Does he believe that the man on the Clapham omnibus would regard the current policy of apology and correction as remotely reasonable? If he is prepared to reconsider that and talk to the people with whom he works, perhaps there could be real movement here. IPSO does not necessarily have to become Impress but it can look at the obligations that have been placed on Impress and begin to behave accordingly.

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[Lord Low of Dalston]

Would the Minister perhaps agree that it would be highly advantageous to the Government—it would be in the Government’s interest—for the response to the consultation to be published before Report? If it is, its contents might well incline those of us who support these amendments to think again about them, whereas if we do not have the benefit of the Government’s response, we may be obliged to carry amendments that the Government would not wish to be carried.

[Lord Keen of Elie]

I quite understand the force of the noble Lord’s observations. Nevertheless, I am not in a position to say that the response will be available for publication before Report. I am afraid that we have to proceed on that basis. It may have consequences such as those set out by the noble Lord, and we will have to address those in due course. I am afraid that I cannot go further on this point.

Finally, I come to some of the observations of the noble Lord, Lord McNally, who spoke to his Amendments 185E and 185F. I begin by saying that I have no wish to disappoint either the gentleman on the Clapham omnibus or the noble Lord himself. Therefore, I will endeavour to address the questions that he raised as fully as I can. I take account of his commendable intention to peruse Hansard over breakfast and to come to a view as to whether or not I have fully responded to his points.

Amendments 185E and 185F seek to make the unlawful obtaining of personal data a criminal offence with a custodial sentence of up to two years under Clause 175. Of course we recognise the seriousness of any offence that is committed in this context. That is why it is important that proper thought is given to the introduction of any changes which would seek to put in place custodial penalties that could remove people’s liberty. Under the coalition Government, in March 2011, the noble Lord, Lord McNally, said that the Government would not commence prison sentences for Section 55 offences but would continue to keep the matter under review. At that time Ministers agreed to pursue non-custodial options, instead of a custodial option, including encouraging the use of the Proceeds of Crime Act 2002 and making the offences recordable. Indeed, it is this Government’s intention in this Bill that the offences should now be made recordable. That is addressed in Clause 178.

Again, this is one of those complex areas where we have to achieve a balance between competing rights and obligations. We believe that, for the reasons I sought to set out earlier, we are achieving the right balance with the provisions in the Bill. I hope that the noble Lord will feel open to not moving his amendment.

Data Protection Bill [HL]

Lord Low of Dalston Excerpts

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

[Lord Black of Brentwood (Con)]

My Lords, as these amendments deal with the media, I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

I will say a brief word first about Amendment 50 and the other government amendments in this group. These amendments seek to deal with a number of the problems raised in Committee by noble Lords across the House, as my noble friend said. I have a number of times during the course of the Bill commended the Government for their commitment to consultation on all the issues impacting on media freedom and for their willingness to discuss them with interested parties. I am grateful to my noble friend the Minister for the way in which he has approached these issues and I strongly support the amendments.

Manuscript Amendment 50A, like Amendments 51 and 52—especially in combination with later amendments with which we will deal in due course—point, I fear, in absolutely the other direction. The issue surrounding them has been eloquently and cogently set out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lords, Lord Lester and Lord Pannick. I could not improve on what they have said in any way, shape or form. Those amendments would, in short, cripple investigative journalism for all the reasons the noble Lord, Lord Pannick, set out.

Above all, they would create a deeply repressive data protection regime for all those involved in journalistic, academic, literary and artistic activities. It is not only journalists on national newspapers, who are so clearly targeted by these amendments, who would be punished but the local press, broadcasters, academics, film producers, playwrights, book producers and many others. As they all use data regularly in the course of their activities, it would make their day-to-day work almost impossible. This House, which contains so many people drawn from academia, the arts and the world of literature—I see many around me here today—has always prided itself on championing the UK’s creative industries. How ironic that we should even be debating these repressive amendments, which would be a body blow to the entire sector. They would place all those who work in it—many tens of thousands of people—at a huge disadvantage compared with their colleagues and competitors in the rest of Europe and elsewhere in the world.

On the amendments concerning the designation of codes by which the media should reference the public interest in publication, Amendments 54 and 56 seek to downplay the role of the Ofcom code, BBC guidelines and the Editors’ Code of Practice, all of which the 1998 Act sought to safeguard, and Amendment 55 would sweep them out completely. Amendment 55 seeks to give a statutory regulator, the Information Commissioner, power to determine codes of practice and guidance for the purposes of operating the journalistic exemptions and applying the public interest criteria within the Bill. This, again, is a significant departure from the terms of the 1998 Act, which has worked so well.

The Information Commissioner could choose not to determine particular codes even though they are recognised by the courts and elsewhere in legislation. She could even draw up and determine her own codes and guidance, without any reference to the long-established regulators of the broadcasters and the press, which would then have legal status. Even to a non-lawyer such as me, codes and guidance with legal status determined, drawn-up and administered by a statutory regulator is a system of statutory press regulation in the making—to which the vast majority of Members of this House say they are opposed—and is therefore a dangerous step which we should not take.

[Lord Low of Dalston (CB)]

My Lords, in the absence of the noble Baroness, Lady O’Neill, I shall speak in support of Amendment 58, which is in the names of the noble Baroness, Lady O’Neill, the noble Lords, Lord Lipsey and Lord McNally, and myself.

The Bill contains an exemption for publication which is for journalistic, academic, artistic and literary purposes and is in the public interest. In determining whether publication is in the public interest, regard must be had to,

“any of the codes of practice or guidelines listed in sub-paragraph (5)”,

of paragraph 24, which is in Part 5 of Schedule 2. The codes of practice listed in sub-paragraph (5) are the,

“BBC Editorial Guidelines; … Ofcom Broadcasting Code; … IPSO Editors’ Code of Practice”.

The purpose of Amendment 58 is to add to that finite list a further, open-ended category of codes to cater for any other relevant code of practice approved by the Press Recognition Panel. The immediate effect of the amendment would be to add the Impress standards code to the list of journalism standards codes recognised in the Bill, because so far it is the only one which has been approved by the Press Recognition Panel.

The Bill rightly recognises that journalists may sometimes have occasion to process and publish people’s personal data. On the rare occasions when a journalist has occasion to breach someone’s data privacy, the Bill requires them to show a reasonable belief that doing so was in the public interest. The Bill itself does not include a public interest test. Instead, it refers to three codes which do: the BBC Editorial Guidelines, the Ofcom Broadcasting Code and the IPSO Editors’ Code of Practice. Our amendment would add a fourth code, or rather a class of codes, to the list:

“any code which is adopted by an approved regulator as defined by … the Crime and Courts Act 2013”.

This modest amendment would bring the Bill closer to the recommendations made by Sir Brian Leveson following his inquiry into press standards and press regulation. It would also reflect the changing nature of news publication in this digital age. An approved regulator as defined in the Crime and Courts Act 2013 is a regulator that is compliant with the Leveson recommendations as distilled in the royal charter on self-regulation of the press. The royal charter requires an approved regulator to have an independent board, to have effective powers and remedies, to provide a low-cost arbitration scheme for civil disputes and to take responsibility for a standards code. According to the charter, the standards code of an approved regulator,

“must take into account the importance of freedom of speech, the interests of the public … and the rights of individuals”.

In particular, it must include appropriate “respect for privacy” where there is no sufficient public interest justification for breach.

The charter also states that a regulator can be approved only if it provides,

“non-binding guidance on the interpretation of the public interest that justifies what would otherwise constitute a breach of the standards code”.

In other words, a regulator can be approved only if its code properly balances the interests of freedom of speech with appropriate respect for privacy and if it provides guidance on what this means in practice. In order to be listed, an approved regulator must not just be likely to have the right kind of code; it must be guaranteed to do so.

At present, the only approved press regulator is Impress, the Independent Monitor for the Press, which was recognised by the Press Regulation Panel in October 2016 after a nine-month application process. The decision of the Press Recognition Panel to approve Impress has recently been upheld by the High Court, which dismissed an application for judicial review brought by the News Media Association on all six counts. In due course, other regulators may be recognised.

The system we envisage is not exclusive and more than one regulator at a time may enjoy approved status. In this way, Amendment 58 allows for changes in the regulatory landscape. So long as a regulator has successfully completed the rigorous approval process, its standards code would be included; if a regulator withdraws from the recognition system or loses its approved status, its code would no longer be included.

Impress now regulates 78 news publications across the UK that reach almost 7 million readers every month. A further 36 publishers have applied to join. Without this amendment, these publications would not enjoy the same protections as members of IPSO, which does not meet the Leveson criteria and is not externally accountable. In these circumstances, for the Bill not to contain a framework that covers Impress and other Press Recognition Panel-approved publishers beyond the three codes currently listed would be perverse.

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[Lord Low of Dalston]

I am grateful to the noble Lord for that intervention, which I think supports my contention that there is nothing in the inclusion of the Impress code that strikes at the heart of press freedom.

As I was saying in concluding my remarks, it would be perverse if the Bill did not include a code such as that of Impress but one of an organisation that is not approved by the Press Recognition Panel and does not meet Leveson criteria, such as IPSO. I hope that the Government and the Minister accept that, but at the very least I hope that the Minister will be prepared to assure the House that the Government are not opposed to the Impress standards code being listed in the Bill.

[Viscount Hailsham (Con)]

My Lords, I follow what the noble Lord, Lord Low, said, which is of considerable importance. In doing so, I address Amendment 55, which has not yet been spoken to by the noble Lord, Lord Stevenson. I have both an observation and suggestion to make and I would be very grateful if he could let me have his views on them.

I suggest to your Lordships that Amendment 55, as it stands, goes too far, in that it gives great power to the commissioner, who is in no way subject to parliamentary control. Given the nature of the powers to determine appropriate guidance and practice, that is undesirable, on the face of it. That said, I have considerable sympathy for the proposition that the commissioner should be involved in the formulation of policy and in identifying amendments to the list. One way to address that is as follows: under subsection (6) of the clause we are dealing with, the Secretary of State has a power to make regulations that amend the list, which is itself subject to affirmative procedure. If we were minded to do so, we could make it explicit that the power exercised by the Secretary of State under subsection (6) should be used after representations made to him or her by the commissioner, and furthermore that, in any event and at all times, the power to amend the regulation should be used after consultation with the commissioner. If we went down this road, it would enable the commissioner to play a proactive role in shaping a very important list; in any event, it would involve the commissioner in the policy-making process.

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[Lord McNally]

No. The amendment I have put forward is exactly the finding of Leveson—that what was wrong in the 1998 Act was an imbalance the wrong way. That is what Leveson found and suggested that Parliament put right. There may be many other ways of putting it right, but to say that what Leveson did was somehow to be totally ignored ignores not only Leveson itself but the findings and support of both Houses of Parliament. Since Leveson and the setting up of the royal charter—I was the Minister involved with that—nobody could have tried more than that set of Ministers to find a solution that was as far away from state regulation as we could possibly find.

[Lord Low of Dalston]

I—

[Lord McNally]

I am trying to wind up, but carry on.

[Lord Low of Dalston]

The noble Lord said that Leveson found that the press had abused its position and looked to Parliament to put it right. Would the noble Lord not agree that Parliament has put it right with Section 40 of the Crime and Courts Act 2013, but that the Government have not given effect to that provision?

[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.