Proposed Media Mergers

Debate between Lord McNally and Lord Stevenson of Balmacara

Tuesday 5th June 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am obliged to the Minister for repeating the Statement made earlier by his right honourable friend the Secretary of State in the other place. On the decisions announced today, the best thing that can be said is that they are not unexpected. Comcast cast a shadow, but not as long as that of 21st Century Fox or indeed the Murdoch Family Trust. The key issue raised today is the question of what undertakings would be accepted to ameliorate the CMA finding that a Sky-21st Century Fox merger is likely to operate against the public interest on media plurality concerns. I do not disagree that divestment of Sky News to a suitable third party such as Disney is the least worst of the available options, provided that appropriate remedies are put in place to assuage media plurality concerns.

The CMA report sets out some draft terms for such a divestment and Fox has indicated that these are acceptable. However, the Statement makes it clear that more work is required on this issue and we will want to scrutinise carefully what is finally proposed, to ensure that Sky News remains financially viable over the long term, is able to operate as a major UK news provider and is able to take its editorial decisions independently, free from any potential outside influence. Will the Minister confirm that Parliament will be kept informed of progress in these negotiations?

In the conclusion to his Statement, the Secretary of State says that the Government have followed,

“a scrupulously fair and impartial process, based only on relevant evidence and objectively justified by the facts”.

I was glad to hear that. As required by the Enterprise Act 2002, the Secretary of State has been operating in a quasi-judicial role and I accept that both he and his predecessor have been punctilious in following that approach. However, if we are reaching the end of this complex process, does the Minister accept that if,

“we want to see a broadcasting industry in Britain that is strong and effective and competitive”,

as the Statement has it, we need urgently to review whether we have the right regulatory structure and statutory powers in place for the modern world?

Does the Minister agree that there are aspects of the public interest test on media mergers which now need to be reconsidered? Many of the powers are found in the Communications Act 2003, which first brought in the public interest test for media mergers. Fifteen years on, the media landscape has greatly changed and with it comes the need to review, strengthen and future-proof this important legislative measure. We need to widen the definition of “media enterprises” to which the public interest test refers. Currently, the definition does not include enterprises such as Google, YouTube, Facebook, Twitter, Snapchat and others. Nowadays, many people take more of their audio-visual content off YouTube than from conventional broadcast channels, or they seek their news through Twitter or from apps on smartphones and thus not necessarily through broadcast platforms and channels. If the public interest can be engaged by the dominance or inappropriate control of a broadcast channel, why is it not engaged by the platform or channel through which large-scale news-related and other material is delivered to the whole population?

Ofcom needs the same powers when carrying out its Enterprise Act competition functions as are currently available to the Competition and Markets Authority, and specifically the power to require the attendance of witnesses and the production of documents. Without these powers, Ofcom is playing second fiddle. We need to think harder about the fit and proper test itself, which is currently couched as the,

“commitment to the attainment in relation to broadcasting of the standards objectives”.

However, these standards relate only to television and radio services. We need to think about how a commitment to the attainment of standards can be evidenced through the control of media enterprises that are more widely construed. This test would eliminate the risk that behaviour outside the scope of television and radio, and beyond the specifics of the broadcasting standards code, would not be able to be drawn in aid in determining fitness. Presumably we are also thinking about the question of control over other channels, newspapers and organisations. I also think that we could learn from the experience of the “fit and proper test” in other sectors such as financial services.

Finally, we need to think harder about how to protect the editorial freedom of the news services of media enterprises and see that safeguards are in place. Media plurality—the plurality of ownership—does not necessarily mean that editorial freedom is protected and safeguarded.

[Lord McNally (LD)]

My Lords, I thank the Minister for repeating the Statement. For someone who is not always clear on these great battles, where does this put the Comcast bid and the Fox-Disney bid? Are they now parallel bids and will Sky shareholders now decide which is the best deal? I read somewhere that Sky has advised its shareholders that it no longer stands by an earlier recommendation to accept the Fox bid. Once the procedure has been gone through, will it be a straight fight on price for Sky or are there other considerations?

I associate myself with what the noble Lord, Lord Stevenson, has just said: this keeps on happening. No other country in the world would allow important parts of its media industry to be fought over by foreign interests in such a way. We have here a battle between three massive American media conglomerates over a key part of our media industry. Moreover, as the noble Lord has just said, all this is being done in the long shadow of even bigger technology companies that may be coming in. We need a framework of defences for this key sector. As we said when we considered these issues 20 years ago, we are not talking about tins of beans. When these companies pass on to different control, we are talking about an essential part of a functioning democracy. There is a case for looking at the powers of Ofcom and the CMA and the Government’s responsibilities in this media area, which are badly in need of an overhaul.

The only other thing I have to say is that it is important that we get the decision right. I am always worried when the Secretary of State gives himself timetables of 15 days, or whatever. The important thing is making sure that we get it right. I also underline the importance of Parliament being kept fully informed and consulted on decisions that are taken.

Data Protection Bill [HL]

Debate between Lord McNally and Lord Stevenson of Balmacara

Monday 14th May 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, as the noble Lord, Lord Grade, said, this has been a passionate and, actually, very balanced debate. A number of noble Lords have expressed concern about the amendment before us and have, sort of, made a case against it.

When the noble Lord, Lord Black, came in, struggling on his crutches, I did think: is there no end to which this man will not go to get sympathy from this House? I wish him a speedy recovery.

When introducing the debate, the Minister said first that these amendments have no place in the Bill because it is about data protection and then began to dazzle us with the number of government amendments that pertain to the media. Of course it is perfectly sensible that this matter should be in the Bill.

By the way, I say to the noble Baroness, Lady Cavendish, that I did not say I object to journalists; I object to journalists at the Times. She mentioned the growing power of the ICO in all this, which is something that the press should think hard about. The press have been so busy trying to avoid having a proper regulator for themselves that they find themselves well and truly regulated by a powerful ICO. Where the ICO does not regulate the press, the courts may with some of the judgments that are coming down the track.

As always, the perorations against, as with the noble Lord, Lord Hunt, have been about freedom and liberty, as though we on this side are not as passionate in our defence of those. Today’s debate has produced the usual press stories that crop up when either House debates the issue. They always either rubbish one or other of the more popular proponents of reform or carry, as did the Evening Standard just before the Commons debate, such headlines as that from the Commons Culture Minister, Margot James: “We will lose freedom of the press if MPs back new curbs”. It is my belief that the real defenders of press freedom are not the Ministers scrambling to close Leveson down but those of us who want to see a press that is respected and trusted, as well as free.

When the Commons debated our amendment, Mr Jacob Rees-Mogg, the new Erskine May, said rather imperiously that Parliament had every right to renege on promises made by a predecessor. Of course, he is right—we know that, Jacob. However, it is also a long and honourable convention that there is a continuity of responsibility from one Parliament and one Government to another. We saw it last week when the Prime Minister gave a full and unequivocal apology to the Libyan family for Britain’s part in their rendition and subsequent torture, although it did not happen on her watch. The long tradition of continuity of responsibility means that a promise given by one Prime Minister and one Parliament is unlikely to be abandoned by another. There is a double matter of honour when the promise in question was made by a Prime Minister of the party now in power. David Cameron gave such commitments, and the amendment from the noble Baroness, Lady Hollins, gives the House of Commons a way of redeeming that promise while taking into account the passage of time since it was made.

I often find that, when I am indignant having read in the newspaper or seen on TV some summing up or sentence by a judge, my lawyer friends will say, “Ah, but the judge who has heard all the evidence is the best placed to make a balanced judgment on the matter”. In this case, we have the balanced judgment of Sir Brian Leveson himself. Let us remember, after the speeches of the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, that Sir Brian had all the information they had to make their speeches but came to a different conclusion: that it should go on. As I said when the Leveson letter first came up, here is the third most senior judge in the land taking six pages in a very carefully argued letter to give his views on the inquiry on which he spent a year of his life. Some noble and learned Lords in the House should have a little modesty when challenging his judgment because it is absolutely clear that Leveson 2 should go ahead. The noble and learned Lord, Lord Falconer, has already quoted from the letter, so I will not waste time.

The amendment before us is proportionate to the task at hand in addressing issues not yet adequately addressed. It redeems a solemn promise made by our Prime Minister and our Parliament. Jodie Ginsberg, the CEO of Index on Censorship, when briefing against these proposals before the Commons debate, said that she wanted,

“a free, vibrant, independent and troublesome media”.

So do I, and so does the proposer of the amendment. The biggest threat to a free, vibrant, independent and troublesome media is one so held in public contempt because of corrupt and illegal practices that few defenders will come to its aid if press freedom is really threatened.

I say to the noble Baroness, Lady Cavendish, that, when the Leveson inquiry exposed sins and criminality, the Government of the day could at that time have done anything they liked to the press. What they did was make a strong attempt to create something as far from political control as possible—I was one of the privy counsellors who signed the royal charter. It is absolutely false to claim that the attempt was to create a state-controlled press. That was never on the table and it is not on the table now.

The noble Earl, Lord Attlee, who has been brave in carrying through on Section 40, has said that we will not press it beyond tonight. I am interested to see which bit of legislation will include its repeal and how that will be favoured when it comes back to us. I say to the Minister: this is not the end of Section 40.

Tonight, we are looking for something more. As the noble Baroness, Lady Hollins, and the noble Lord, Lord Kerslake, have shown, we are looking at something for the victims. The noble Baroness, Lady Cavendish, should note that it is also something for journalists who need protection from being bullied into illegal acts by their employers. Most of all, it is for our own self-respect in keeping a promise made. I urge support for this amendment.

[Lord Stevenson of Balmacara]

My Lords, we are 90 minutes in and we have heard lots of familiar tropes rehashed and replayed, but have we achieved very much in this debate? While sitting here I have been wondering how on earth one brings together the two very different sides that are emerging in this debate. I whispered to my colleagues on my right and left asking for help and support, and all I got was, “You need the judgment of Solomon on this”, and I do not have that. However, we are going to ask noble Lords to vote on this issue, and so I want us to think very hard about what we have been doing here.

Leveson Inquiry Update

Debate between Lord McNally and Lord Stevenson of Balmacara

Thursday 1st March 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am very grateful to the noble and learned Lord for repeating the Statement made by his right honourable friend the Secretary of State for—is it D2CMS? I forget how you pronounce it these days, with “digital” being added to the department name.

We need to consider three main issues addressed in the Statement. First, this announcement of the Government’s formal decision, albeit it was prefigured in their manifesto, terminates the Leveson inquiry established under the Inquiries Act 2005. It also gives notice that the Government will repeal Section 40 of the Crime and Courts Act 2013. But we gather from the Statement that Sir Brian Leveson, who has rightly been consulted about this, agrees that his inquiry should not proceed but believes that it should continue in an amended form.

But is that what is happening? Could it be, as was patently clear from the huge response to the consultation carried out by the Government, that Sir Brian believes that there are still many unanswered questions? Do they include which editors and other senior newspaper executives were commissioned or otherwise responsible for data theft, phone hacking and other illegal conduct by journalists and investigators? Does it cover the full extent of hacking and data protection breaches at certain national newspapers, the extent of alleged corruption between some politicians, media representatives and the Metropolitan Police, and the nature of the relationships between the police and the press, in particular the long-term cover-up of police responsibility for the Hillsborough disaster?

The Statement gives the impression that this has all been sorted. It says that,

“the terms of reference for a part 2 of the inquiry have largely been met”.

Well, I do not think that Sir Brian agrees with that—or that the victims will agree with it. I certainly do not. It would be very helpful for your Lordships’ House if the noble and learned Lord could explain what precisely the words used by Sir Brian meant in that enigmatic phrase that he believes that the inquiry should continue in “an amended form”. Will he put copies of the correspondence in the Library so that we can all see it?

Secondly, on Report on the Data Protection Bill your Lordships’ House voted by 238 to 209 to add Amendment 127A in the name of the noble Baroness, Lady Hollins. This new clause effectively requires the Government to proceed with a second part of the Leveson inquiry. The House also agreed amendments in the name of the noble Earl, Lord Attlee, which replicate Section 40 of the Crime and Courts Act for data protection claims only.

It is possible that the Government will find the arguments—I have every confidence that we will listen to them with great interest—that will persuade the other place to remove these two amendments, but the parliamentary arithmetic being what it is, I am not sure that that is certain. In any case, if the amendments are reversed, they will come back here on ping-pong under considerable time pressure. After all, the Bill has to have Royal Assent by 25 May. Could the noble and learned Lord speculate about what might happen on the assumption that the Bill remains unamended? Perhaps we should explore the common ground here, because there is potential for working together on this. I look forward to discussions that were started prior to discussions on the Data Protection Act.

Will the noble and learned Lord also explain what the timetable is for the repeal of Section 40 of the Crime and Courts Act? The Statement says that it will not be commenced—again, that was in the Conservative manifesto—but the Statement adds that the Government will seek repeal “at the earliest opportunity”. When is that? “Soon” and “before Christmas”, which are the usual words in the lexicon used by the noble and learned Lord, will not be sufficient on this occasion. I look forward to more detail.

Thirdly, the saddest thing about this Statement is that it makes it clear that the all-party consensus that informed the Leveson report and oversaw the parliamentary process immediately after its publication has been destroyed. The Conservatives have reneged on the promises made by successive Prime Ministers not to let down the victims of press intrusion, and they are clearly setting their face against ensuring that we learn the lessons of the past. It is a disgrace that the Government are betraying the trust placed in them by the victims. Who now will stand up for them and make sure that their pain and suffering will not be repeated?

I believe that there is a willingness in Parliament to encourage an independent system of press regulation, as recommended by Sir Brian Leveson. I will go further: I am sympathetic, and I think others are, to the idea that if IPSO would clearly meet the standard for recognition establish by the PRP, it might be sensible for Parliament to revisit the complex set of interrelated measures of inducements and penalties set up under the rather baroque arrangements of the Privy Council.

Alongside this, we need to take into account the parallel developments mentioned in the Statement. Mainly because of loss of sales and the collapse in advertising revenues, the traditional press is in serious decline. The new, unregulated electronic sources of news and information are growing rapidly and the internet is constantly innovating and expanding news, fake news and other services. I agree with the Secretary of State that one result of these trends is that we may be witnessing the end of a fine tradition of serious journalism and the elimination of space for independent opinion which has always underpinned our democracy and polity in the UK. I agree with him that this is really important.

I welcome the proposal for a review of the sustainability of high-quality journalism and suggest to the noble and learned Lord that there may be considerable advantage in making the review cross-party and ensuring that its evidence and proceedings are open to the public. Perhaps he could comment on that—and if he cannot do so now, will he be ready to respond to an Oral Question on this later in the month, of which I have given him some notice?

If this marks the end of Leveson—and I echo the thanks expressed by the Secretary of State to Sir Brian for his considerable efforts—I am left with the following thoughts. The key question raised by Leveson is how in a democratic society we enshrine the press’s freedom to publish in the public interest while ensuring a proportionate balance so that individuals retain their rights to privacy and the security of their personal data. We have not got this right yet, but I do not think that we are far away from coming to a proper solution.

We must learn the lessons from the culture of abuse, illegality and criminality that has flourished for too long in our newspapers. There is no point in trying to cover over that and not look at it. We need to examine all these things and come up with reports—and we have to make sure that the victims of press intrusion can get effective redress when such abuse happens.

As I have said, there is more that unites us on this than divides us. Now would be a good time to reach out to all parties and attempt to re-establish the cross-party agreement that led to the original Leveson report and ensure that its good work is carried on.

[Lord McNally (LD)]

My Lords, it is never a pretty sight to watch a Government capitulating to vested interests. At such a time, it is always useful to look around and see who is smiling. Certainly, Mr Rupert Murdoch will be smiling, as will Lord Rothermere, Mr Paul Dacre and the Barclay Brothers—owners or editors of the Times, the Sun, the Mail and the Telegraph respectively.

It was nearly 30 years ago, in 1990, that the Calcutt commission recommended the setting up of a Press Complaints Commission. The Government of the day welcomed that report and set up the Press Complaints Commission, but warned that it was a “final chance” for self-regulation, or, as the then Secretary of State, David Mellor, put it, the press were,

“drinking in the last-chance saloon”.

The trouble is, what has happened since? There was no learning of lessons or improvement of behaviour, with the addition of corruption and criminality to the cocktail of press failings under the stones that Lord Justice Leveson turned over.

This Statement is littered with high-minded declarations, such as,

“free to … investigate without fear or favour … underpin our democracy … integral to the freedom of our nation”,

and,

“safeguard the lifeblood of our democratic discourse”,

but the truth is that none of those high-minded aspirations would be put at risk either by implementing Section 40 or by continuing with part 2 of Leveson. They are put at risk by behaviour that undermines public trust and diminishes confidence in our democracy.

Will the Minister clarify a number of points? First, will he put in the Library of the House the precise terms on which Sir Brian Leveson believes his inquiry should have continued? Secondly, when will the terms of reference and chair for the new review into the sustainability of the press be announced? Will it be that review or Ofcom that looks at the increasing overlap between print journalism, online journalism and broadcast news, which now sits with the various oversight bodies that regulate them?

The sentence in the Statement with which I agree entirely states that challenges that were only in their infancy in 2011 have now to be faced. Issues such as misinformation, fake news, malicious disinformation and online abuse all threaten both the quality of journalism and the fundamental rights of our citizens.

But this Statement is not a response equal to that challenge. For all the crocodile tears, it will do nothing to preserve local newspapers. It leaves the victims of press abuse with their hurt still raw and unassuaged by any sense of justice done. It was very interesting that a few hours after the Manchester bombing, journalists were knocking on the doors of victims, intruding into the private grief of people who had lost their children that night. So much for conscience and regret.

It leaves a self-serving regulator, IPSO, which is as ineffectual and compromised as its predecessor, the PCC. As the noble Lord, Lord Stevenson, said, it is open to IPSO to come within the Leveson recommendations, and if there were any sense of trying to meet the all-party approach that the noble Lord, Lord Stevenson, advocated, that is what IPSO would do. It leaves our media landscape not, as it should be, a balance of quality, diversity and choice, but again simply an accident waiting to happen, as those guilty of past abuse remain in power, with no sense of contrition or shame, and there is still no effective means of holding the perpetrators of that abuse to account.

It is not even an outcome of the consultation. It is the fulfilment of a squalid political deal between the press barons and the Conservative Party which the Secretary of State will live to regret. What is certain is that the name of Leveson will rank higher in the list of defenders of freedom of the press than any member of this Government.

Sky-Fox Update

Debate between Lord McNally and Lord Stevenson of Balmacara

Tuesday 23rd January 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the noble and learned Lord for repeating the Statement made by the Secretary of State in another place. I take this opportunity to congratulate Mr Matt Hancock on his appointment and pay tribute to the fact that, on this issue, he says he intends to continue his predecessor’s practice of being as open as possible while respecting the quasi-judicial nature of the decision. In this regard, I respectfully request that the Minister suggests to the new Secretary of State that he might wish to continue the informal all-party meetings with Members of your Lordships’ House, which were very helpful in previous rounds of this and related issues. We would welcome that.

As we have heard, the provisional findings of the CMA are that if the Fox-Sky merger went ahead as proposed, it could be against the public interest. It would result in the Murdoch family having too much control over news providers in the UK and too much influence over public opinion and the political agenda. I do not think that there can be much dispute about that. We now move on to a public consultation of possible remedies, which I am sure will attract a great deal of attention, as did the original investigation, with some 16,000 responses.

The Statement that we have just heard did not, for obvious reasons explained by the noble and learned Lord, go into the detail of the possible remedies, but I think it is worth commenting that, even at this stage, it is fairly clear that the CMA largely discounts what are called “behavioural remedies”, which are largely firewalls aimed at keeping entities and their information separate within a merged group. We agree that that would not be a preferred solution. Secondly, the CMA is unenthusiastic about structural remedies; namely to either spin off Sky News into a new company, or recommend the divestiture of Sky News, as this may threaten the viability of Sky News. This is something that has already been threatened: indeed, it is interesting to note that the CMA warns parties that the closure of Sky News while the investigation is ongoing would not be permitted. We are left, therefore, with the third recommendation which is out for consultation, which is the prohibition of the transaction. We think that that is the right solution.

Clearly, a lot of this is dependent on whether and when the sale of Fox to Disney goes ahead. It is subject to considerable regulatory issues in the United States and we do not know enough about what the final structures will be; we therefore have to wait. It is a complicated issue on its own without these other factors intervening, and it is good that the CMA seems to be on top of this, keeping a watchful eye on it and making sensible proposals in the eventuality of this coming through within the timescale of its review. The most surprising issue in the Statement is that the CMA says it is not concerned about the proposed merger on broadcasting standards grounds. I make two points here.

We have argued consistently that the fit and proper person test of individuals who seek to acquire and operate a broadcasting licence is central to having a fair and plural press in this country. However, the test itself is flawed and outdated and needs to be revised. I refer the noble and learned Lord to amendments to the Digital Economy Act which we debated in the last Parliament and which we withdrew on the basis that the Government were considering amending the current provisions and would be looking at this in the near future. I do not think it would be difficult to find a way of bringing into the 21st century a system which, after all, is similar in many respects to the one routinely operated in the financial sector. Will the Government consider this? If so, will they tell us when they will bring forward some recommendations?

Secondly, we have consistently said that if we are to reach a proper assessment of the broadcasting standards question as it affects the Murdoch Family Trust and others, we need to get to the bottom of the corporate governance issues that gave rise to the original Leveson report and should be looked at again as part of part 2 of the Leveson inquiry. I am trying to be helpful here to the noble and learned Lord—I hope he will not need to be reminded that, as a result of amendments in the name of the noble Baroness, Lady Hollins, which were agreed by this House to the Data Protection Bill, the Government are likely to be required to carry out a review of this type one way or the other. Once Sir Brian has reviewed the recent consultation responses on this issue, I urge the Government to simply get on with it.

[Lord McNally (LD)]

My Lords, I associate myself with the points made by the noble Lord, Lord Stevenson, about the second stage of Leveson and also the remedies that have already been put forward on media regulation. I welcome this Statement and the ongoing commitment of the Secretary of State to keep both Houses informed. I also appreciate the continuing interest of the Minister in this House, the noble and learned Lord, Lord Keen, in the matter. Like the noble Lord, Lord Stevenson, I would welcome a continuation of that informal dialogue. We welcome the interim findings concerning the public interest not being served in terms either of diversity or the influence of the Murdoch Family Trust.

On the commitment to broadcasting standards, I share the concern and puzzlement of the noble Lord, Lord Stevenson. I find it odd that in terms of commitment to broadcasting standards, the proposed merger does not operate against the public interest, echoing an earlier and very disappointing finding by Ofcom. In three continents over 60 years—in Australia, the UK and the USA—Mr Murdoch has been a major factor in lowering standards in both print and broadcast media. I am pleased that the Secretary of State is taking his time to think and consider. Frankly, he has been a little too eager to shoot from the hip in his first few days in office, so this more considered response is welcome.

I still believe that a healthy media ecology rests on a mantra of quality, diversity and choice. All three are threatened by an extension of Murdoch power. It is important to defend the integrity of Sky News, where the lack of 100% control has mitigated against the Murdoch effect. But the Secretary of State needs to go further and consider carefully how we protect our public service broadcast news on the BBC, ITV and Sky News. We need to review the protection of news sources in the light of the impact of new technologies. Here again, Ofcom needs to be proactive in reviewing and bringing advice on these matters.

We must also keep an eye on the implications of the Disney takeover of Fox. Does the Minister have a timetable or guesstimate about how soon the US authorities will come to their conclusions? For we must make sure that any remedies to protect the public interest are real and effective, not simply fig leaves to cover up a surrender to big media power. This is a welcome Statement but it is not the end of the matter. We need a robust Secretary of State to defend the public interest but, on that, I am afraid the jury is still out.

Data Protection Bill [HL]

Debate between Lord McNally and Lord Stevenson of Balmacara

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

[Lord Stevenson of Balmacara (Lab)]

My Lords, I apologise to the House because my voice is annoyingly masked. I urge noble Lords to put their hearing aids on because it might not last until I have said what I want to say.

Every now and then in this House, we have a debate of such importance and significance that the House behaves in a completely different manner from its normal routine. We have had that today. There is a sense of stillness, expectancy and interest that we do not always get, and it is important that we hold on to it because we are touching on some very important and deep issues. While we obviously need to deal with the narrow question of the amendments before us, I hope very much that the wider resonances of this debate might help unpick some of the difficulties that have been raised in our discussion and which are relevant in society today.

I am so taken by the debate we have had that I want first to mention to the House that our amendment in this group, which was laid as one of the first amendments, is an entirely “fake” amendment, if I may use that word. It is a probing amendment and does not mean anything. I can tell the House now that I will not be pressing it. I hope the Minister will do me the justice of not even bothering to respond to it because it has lost all relevance in the light of the issues that have been raised subsequently. My second point is a slightly cheeky one: since I am no longer involved with our amendment in this group and we do not have any names attached to any of the others, I will bring a completely new and independent view to the discussions. I hope that noble Lords will enjoy that.

I hope that the noble Lord, Lord Black, does not take this my final opening point the wrong way. I am not going to follow the line of the noble Lord, Lord McNally, and accuse him of crimes he is not going to commit, but this is so important that we need to come back to it in another place and at another time. I hope that he will understand that. I think that it probably needs a Bill of its own to get this right. We can discuss that later.

Okay. Trying to make sense of what we have in front of us—in this alphabet soup that we often have in complicated parts of Bills—I want to approach this in the following way. I said at Second Reading, and I repeated in the debate last week, that I do not think the Bill is the right place to rerun some of the long-standing arguments about Leveson. I do not think that anything said today should be withdrawn; it is really important stuff that needs to be resolved. But this is probably not the Bill to do that in and I will give some reasons for that.

The main worry that I have, and several noble Lords have mentioned this, is that we are talking about a package of measures that were the product of a particular time. For all the reasons that have been given, bits have succeeded and bits have not succeeded; bits have been implemented and bits have not been implemented, and I do not think that it is right for this Bill at this time to try to kick-start some of the bits that need to be looked at, particularly the amendments that relate to the Crime and Courts Act 2013. The speech of the noble Earl, Lord Attlee, was a very good introduction to those. He made a very good case for them. That case does need to be answered, but this is not the right place for that, so I do not support them.

I do not think that Amendment 179A works in the context that I am trying to sketch out. The case made by the noble Baroness, Lady Hollins, as always, was incredibly powerful and one’s heart reaches out to everything she says, which was also picked up by the noble Lord, Lord Low. We want to do something about this and we think that the way that the Government have treated Leveson 2 is a disgrace. It is a shameful way to behave, given the treatment of the victims. We must never forget that.

The third group of amendments here—the amendments of the noble Lord, Lord McNally—also makes very good sense. They are sensible amendments but, for the same reason, we should not continue with them today.

[Lord McNally]

The noble Lord is giving the Government a “get out of jail free” card, unless he has something else to say. There are areas in all these amendments that have massive implications for data and data protection. If they do not fit into the scope of a Data Protection Bill, where on earth will they fit?

Data Protection Bill [HL]

Debate between Lord McNally and Lord Stevenson of Balmacara

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, when the famous French long-serving Foreign Minister Talleyrand died and the news was taken to his long-term rival Prince Metternich of Austria, Metternich looked at the telegram and said, “What does he mean by this?”. Some of my friends have a similar reaction to any amendments that carry the name of the noble Lord, Lord Black, but I am not among them. I think that we share a common belief in a free and a vigorous and independent press. He knows that when at Second Reading he referred to the Defamation Act 2013, my ears pricked up, because it is one of the things that I am most proud of from my time as a Minister. With my noble friend Lord Lester as my mentor, we piloted that Bill into legislation. I am certainly very interested in any amendment that would prevent this Bill becoming a backdoor to getting around the protections that the Defamation Act gave to free comment and academic freedom to have peer comment, and so on. The Act has worked—we are no longer considered the libel capital of the world—and there is a great deal more freedom in the academic world for peer comments and criticisms, without the threat of libel actions, which had a chilling effect.

The problem is that this is an alphabet soup of amendments, which the noble Lord, Lord Black, has put forward with great clarity, so we will be able to study what exactly he wants to do and how he wants to do it. I am interested in a number of things; I am interested in the idea, which he quite rightly pointed out, of investigative journalists having to give prior notice of what they are doing, which seems rather counterintuitive to the idea of investigative journalism. I have certainly received that point of view from the BBC and other forms of journal about the effect of that proposal. The noble Lord, Lord Black, is quite right. We have seen only recently the Paradise papers as another example of investigative journalism exposing things that people would rather keep quiet, which is massively in the public interest. He also referred to the number of exposés of care homes, prisons and young offender institutions, all of which are massively in the public interest. It would be wrong to allow the Bill to bring into law provisions that would chill, prevent or curb the great traditions of a free and vigorous press. In the spirit of Committee stage, I would like to look carefully at what the amendments of the noble Lord, Lord Black, seek to do. As he knows, after Second Reading I offered to collaborate with him on amendments but that would probably have been too great a shock to both our constitutions. However, I would certainly be interested to see where we can work together on the broad aim of ensuring that the Bill contains no accidental curbs on the activities of a vigorous and free press and media.

As I have said before, the noble Lord, Lord Black, and his friends would be in a stronger position if the background to this was not one of previous criminality and invasion of the privacy of people who had every right to see their privacy protected. Therefore, there is bound to be a certain scepticism about whether these proposals give overgenerous access to overbroad exemptions. But let us have a look at them and at some of the issues that have been raised in other quarters—as I say, by the BBC and journals that are not members of IPSO that have expressed the concerns raised by the noble Lord, Lord Black. Following that and what the Minister is about to tell us, we can then make judgments about how we shall approach these issues on Report.

[Lord Stevenson of Balmacara]

My Lords, we are all very grateful to the noble Lord, Lord Black, for his very full introduction to these amendments. I shall read very carefully what the noble Lord, Lord McNally, said and take his remarks on their merits. I have no problem with that.

I am sure that the noble Lord, Lord Black, will not mind if I quote what he said in Committee only a week ago and pose a question to him. He said:

“This Bill is very carefully crafted to balance rights to free expression and rights to privacy, which of course are of huge importance. It recognises the vital importance of free speech in a free society at the same time as protecting individuals. It replicates a system which has worked well for 20 years and can work well for another 20”.—[Official Report, 6/11/17; cols. 1667-68.]


What a difference a week makes to one’s thinking. The noble Lord was pressed by a number of noble Lords, including his noble friend Lord Attlee, to come up with a much more detailed and engaged critique. We would love to hear from him again if he is prepared to tell us why there has been a change in his thinking. However, I do not think that gets in the way of what he is saying, which is that some issues need to be addressed. We will look at them carefully when we have the chance to see them in print. I shall also be interested to hear what the noble Baroness makes of this when she replies.

Data Protection Bill [HL]

Debate between Lord McNally and Lord Stevenson of Balmacara

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

[Lord Stevenson of Balmacara]

My Lords—

[Lord McNally (LD)]

My Lords, my name is also on this amendment. It is a great pleasure to follow the noble Lord, Lord Puttnam, who has championed these issues for 20 years or more. It is worth while having a reality check for ourselves. One of the good things about the House of Lords is a certain continuity. I was in this House for the Data Protection Act 1998, which we are now reviewing, and for the Communications Act to which the noble Lord, Lord Puttnam, referred, and I served on his committee. We had no idea what revolution was coming our way. Indeed, in the Communications Committee, we were asked not to look at the internet; it was for the future. If we think about what has happened in those 20 years, what on earth is going to happen in the next 20, when we are reliably told we are on the verge of a fourth industrial revolution driven by data?

We were quietly asked by the noble Baroness, Lady Kidron, not to include this amendment in the previous group in case the whole thing became hijacked by a debate about education, and she was shrewd in that, but it was useful that she pointed out—I love this point—that data literacy should be as important as the three Rs as a core competency for the 21st-century child. If we are going to achieve that, we have to get out of the silo mentality: “It’s not our job, it’s the Information Commissioner’s job”; “It’s the Department for Education’s job”; “It’s DCMS’s job”. Somebody has to take responsibility for what we are saying because it is one of the great challenges.

There is a danger, particularly in a House of this age group, that we overestimate the capacity of the young. We all have our anecdotes about our grandchildren or our children being able to work the gadgets that we cannot work, but that does not mean that they have the competence or the maturity to make proper rational, responsible decisions about some of the factors that come within their ambit with this new technology. My noble friend Lord Storey referred earlier to a story in today’s paper about the increase in sexting among young children. We also know the extent of cyberbullying that goes on between children and about the naivety of children in being willing to reveal personal information online. Navigating the digital world is very complex.

The noble Lord, Lord Lexden, is in his place, and I am always worried about quoting history, but when the reform Act was passed in 1867, somebody said, “We now must educate our masters”, and that brought about the Elementary Education Act 1870. Nobody can now be in any doubt about the enormity of the task of preparing the whole population, but especially our children, to handle the new powers that are coming down the track at us. Educating for digital is one of the most important tasks facing us. I enjoyed and appreciated the way the noble Baroness, Lady Kidron, delivered her amendments. She made the point that that education is not to make this generation of children able to fit into the needs of Silicon Valley; it is to give them the power to make sure that Silicon Valley responds to their needs as citizens. That is the task that this amendment is trying to promote.

Data Protection Bill [HL]

Debate between Lord McNally and Lord Stevenson of Balmacara

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

[Lord Stevenson of Balmacara]

As a Scot I can hardly complain, and I am always bewildered, too—not only about this but about many other things. Our Amendment 17 in this group is also one of bewilderment. Clause 8 is headed:

“Child’s consent in relation to information society services”,


and refers to “preventive or counselling services” not being included. This goes back to an earlier amendment, when we established that these references are actually recitals and not part of the substantive GDPR, so we are back in what is not normative language and issues that we cannot possibly talk about in relation to the wider context because we are talking about the law that will apply.

There are three points that need to be made and I would be grateful if the noble Lord would either respond today or write to me about them. The first is to be clear that the reference to “information society services”, which is defined, has nothing in it that would suggest that it is a problem in relation to the lack of inclusion of preventive or counselling services. The answer is probably a straightforward yes. Secondly, what are the preventive or counselling services that we are talking about? I think the context is that these are meant to exclude any data processing relating to a data subject if the data subject concerned—with parental consent if the subject is younger than 13 and on their own if they are older than 13—who is taking a form of counselling that may be related to health or sexual issues would not be allowed to be included. Is my understanding of that right? I am sure that it is.

Thirdly, could we have a better definition of preventive or counselling services because those are very wide-ranging terms? Yes, they come from a recital and perhaps in that sense they can be tracked back to earlier discussions around the formation of the GDPR, but they have to be applied in this country to situations in real life. I am not sure what a preventive service is and I should like to have it explained. Counselling services I probably do get, but do they include face-to-face counselling or is this about only online counselling services? Is it the same if the child is being accompanied by a parent or guardian? There are other issues that come into this and there is a need for clarity on the point.

While I am on my feet I should like to respond to the amendment moved by the noble Baroness, Lady Howe, who has campaigned long and hard on these issues. We would be bereft if she did not enter into this Bill with all its implications for children, given the wisdom and experience that she brings to the table. The point she makes is one of simple clarity. There is a need to be very careful about the evidence gathering on this issue and it is probably not appropriate for it to be left to Ministers in regulations. There needs to be a wider discussion and debate on the matter, perhaps involving the Children’s Commissioner and other persons with expertise. She has made her point very well and I should like to support it.

[Lord McNally (LD)]

My Lords, I associate myself with the amendment in the name of the noble Baroness, Lady Howe. We are in Committee and it is a probing amendment. When we discussed it with colleagues the feeling was that 13 might be the right age but, as the noble Baroness indicated, it needs probing and some thinking about.

There is a danger, particularly in a House with our age group, that we assume these technologies are understood by the young—even the very young. We all hear anecdotes of parents or grandparents who have to consult their eight year-olds on how to make various gadgets work, but that misses the point. A frightening amount of information is being freely given. I mentioned at Second Reading that my generation and my parents’ generation had thoughts of personal privacy that my daughter and her contemporaries seem to have no thought of. They are very happy to exchange information about themselves, what they do and where they are with gay abandon.

When we get to the very young it is very important to make sure—we will discuss this in later amendments, if not tonight—that there is sufficient understanding and information to make informed choices, otherwise we get into very dangerous territory indeed. Therefore we are, not for the first time, in the noble Baroness’s debt for raising these questions. Late as it is, it is right that we put on record that these things, along with the amendments that will follow in the next couple of groupings, need to be taken as a whole before we make a final judgment as to the right age.

Fox-Sky Merger

Debate between Lord McNally and Lord Stevenson of Balmacara

Thursday 20th July 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Minister for repeating the Statement made in the other place. I am grateful to the Government for returning to the Houses of Parliament, both here and the other place, just before Recess to update us on progress.

We have been following the twists and turns of this saga closely. It is obvious, and absolutely right, that the Secretary of State is taking her quasi-judicial responsibilities very seriously. While we regret that she is minded not to refer the bid on grounds of broadcast standards, we support her decision, as I take it to be, to refer the bid to the CMA on the grounds of media plurality.

I have three main points that I hope the Minister will be able to respond to. The first is on the timing. Could I press the Minister on the possibility that the Secretary of State might announce her decision during the Summer Recess? Surely Parliament must have the opportunity to scrutinise any decision that she makes. It is not her job to operate to 21st Century Fox’s corporate timetable; in my view, the company would be better to abide by the rules as they currently are and respect the role of Parliament in this, and it should signal that very clearly. In my view, the Secretary of State should demonstrate to those at Fox that it is she, as an elected representative of the people, who is in charge, not them. I ask that the usual channels in this House also be kept abreast and that we be informed if there is to be a Statement so that we can respond to it.

Secondly, I want to press the Minister on the broadcasting standards investigation. I suggest it needs a bit more work before a decision is finally reached. Recently, compelling arguments for this have been made in the other place by my right honourable friend the Member for Doncaster North and the right honourable Members for Twickenham and for Rushcliffe—noble Lords will be aware that that is a pretty distinguished cross-party alliance. The truth is that the Murdochs have a history of regulatory non-compliance and of corporate governance failure that calls their commitment to broadcasting standards into serious question. Ofcom says that there are,

“significant concerns about Fox’s approach to ensuring Fox News content complies with the Broadcasting Code”.

We saw in the phone hacking scandal that senior employees and executives at News International failed to comply with criminal law or with acceptable standards of journalistic conduct—and, frankly, acted with a flagrant disregard of basic human decency. We see from the ongoing sexual and racial harassment scandal at Fox News in the United States that there is ample evidence of what Ofcom calls “significant corporate failure”.

Does the noble and learned Lord agree that it is time to look again at the fit and proper person test applied in the case of broadcasting standards? I heard it said by a distinguished former member of Ofcom that that test could be satisfied only if the person concerned was caught in the act of murder, had been prosecuted and that the body was exhibited before any such decision could be taken. That is probably a test too far. The noble and learned Lord will recall that, in the Digital Economy Act, several noble Lords from around the House joined together to table an amendment that suggested that there were other models for the fit and proper person test that might be more appropriate—particularly those applying under the Financial Conduct Authority. At that stage, we were persuaded by Ministers that it would be inappropriate to press the amendment to a vote, which I now regret, because they promised an early opportunity in the legislative timetable to bring forward recommendations on it. Can the noble and learned Lord confirm that that is still the plan and share with us which legislative vehicle will be used for it?

Of course, the best way to get at a lot of these corporate failure issues would be to proceed with the inquiry that has already been promised, which is specifically to look into part 2 of the Leveson inquiry. Will the noble and learned Lord confirm that that could still be implemented, because that could be very germane to what we are discussing today?

There is a third issue that we need to look at. On one hand, a lot of the problems that have been caused here are to do with the way in which the corporate veil hides individual actions in a way that would be inappropriate in the broadcasting area. This issue is really about control of media organisations. This is not a battle for the control of a particular broadcasting entity called Sky News; it is really a battle between old media and new media. At the heart of that lies control of personal data, in which there is considerable interest and investment being made. It is about data power—the power to know who is watching what and what their interests are will be more important as competition increases. We are talking about battles between the organisations concerned in this merger and organisations such as Google and Facebook. Does the noble and learned Lord believe that the CMA has the powers to investigate this aspect of media plurality? Without knowing where the data sources and how they are being used, it will be difficult for it properly to assess the impact on media power going forward? I look forward to hearing from him.

[Lord McNally (LD)]

My Lords, like the noble Lord, I welcome the Statement and the courtesy and openness with which the Secretary of State has approached her responsibilities. That is why I find it extraordinary that, having emphasised and carried out her duties to Parliament so assiduously, it could even be suggested that she should make a decision during an eight-week gap between Parliament rising now and returning on an issue that has been before her, regulators and Parliament for years. That would be an absurd assault on parliamentary dignity and responsibility, and I strongly urge her not to follow that road.

Part of the problem is the siloed nature of the decision, when what is needed, as the noble Lord said, is a holistic judgment about the fitness of this takeover. But that is how it has been played. The problem is also the siloed nature of modern business structures. Various parts of the structures can clear part of the siloed questions when we all know, as I have said, what the web is and that the spider is at the centre of that web.

I also press the Minister on whether this could lead to the second stage of Leveson and on the point made right at the end. I remember a few years ago somebody buying a canal and everybody thought what an absurd price he had paid for a canal—the age of canals was over. Then it suddenly dawned on everybody that he had not bought a canal; he had bought miles and miles of land on either side of the canal and made a fortune as a property developer. The same is true now, as the noble Lord has said. I have often pondered what on earth niggles Murdoch that he has tried, year after year, to get 100% control of Sky. What act of vanity is this? He may be vain but he also knows where a quick buck is to be made. It occurs to me that there is ample evidence that what Sky has is a database of some 13 million people, which could become increasingly valuable in the data battles ahead. I wonder whether the Secretary of State has asked the Information Commissioner’s advice on this aspect of the takeover and on how it fits into other legislation that we are considering. This is a foreign bid for a British database, which should give concern about how it is being handled. I go back to the friendliest of warnings: the Secretary of State would be very wrong to consider making this decision while Parliament is in recess.