Broadcasting (Amendment) (EU Exit) Regulations 2019

Lord Pannick Excerpts

Wednesday 6th February 2019 Lords Chamber

[Lord Liddle (Lab)]

My Lords, I support that excellent speech from the noble Lord, Lord Foster of Bath. It was extremely well argued and well researched and brought out a series of very real concerns. I have sat patiently through these discussions. We are seeing how Brexit will potentially destroy some of the jewels in the crown of Britain’s industrial and economic capacity. There is no more striking case of this than in broadcasting, which is one of Britain’s great success stories.

My experience of this is as a member of your Lordships’ Internal Market Sub-Committee of the European Union Select Committee, which did a thorough report on non-financial services and took evidence from broadcasters. At the time I was really shocked by the concerns expressed about the viability of their activities in this country. There is no doubt, whether to a greater or lesser extent, that what we are talking about will destroy opportunities for hundreds of young people who would otherwise have the chance of really fulfilling jobs in the media and broadcasting sectors.

No one I recall coming across in this field believes that the European convention is a full substitute for the EU directive. I would like to hear on what basis the Minister thinks it is. It clearly is deficient in that it is not comprehensive and does not have any means of enforcement through the Commission and the court. The fact is our industry is showing that it has no confidence in this poor substitute by the fact so many companies are relocating to the continent.

One thing about the statutory instrument really worries me. What we are doing with it—I can see why from the point of view domestic regulation—is saying that from now on we will no longer have the country of origin principle, but the country of destination principle. That will be used against us by commercial interests on the continent that want to prevent full UK access to the market. They will say, “You want to switch to a country of destination arrangement. That means we insist on the right to regulate your right to broadcast in our country”. This is very bad news for the British entertainment and broadcasting sectors. The Minister has many difficult questions to answer.

[Lord Pannick (CB)]

My Lords, I share the concerns so powerfully expressed by the noble Lord, Lord Foster. His speech demonstrates that these regulations, like so many of the exit regulations we are debating, raise fundamental policy questions. They are being presented under Section 8 of the withdrawal Act and other powers as merely transitional provisions designed to tidy up loopholes, but they are not. They raise fundamental issues of policy.

I have a specific question for the Minister concerning those broadcasters based in EU states that are not parties to the Council of Europe’s European Convention on Transfrontier Television. As the Minister and the noble Lord, Lord Foster, have explained, there is currently no need for Ofcom to license them because they are based in another EU state. As I understand these regulations, and the Minister will correct me if I am wrong, broadcasters based in non-convention states, including Belgium, the Netherlands, Luxembourg, Ireland—apart from for Irish-language programmes—Sweden and Denmark will now need to be licensed by Ofcom. Is it right that they will have to apply for a licence on 30 March or before then, or will there be a transitional provision by which they will be granted one automatically by reason of the fact they were previously covered by the EU directive?

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the Minister for introducing the instrument before the House this evening. I should declare my interest: I was the Shadow Minister in the other place for the Conservatives when the Ofcom Bill was taken through. I was an adviser to the Conservatives on the committee that covered film policy, and also devised a film policy for the Conservative Party that did not go very far but concluded that it was in their most favoured interest to have a tax break. I have been a beneficiary as a modest investor in films of which I am very proud—not many have been released in the cinema, but they have been broadcast.

The noble Lord, Lord Pannick, asked the very same question on procedure that I would have asked, but I have a very specific question for the Minister that I hope is relevant to this directive. Broadcasters and film producers have benefited from a very specific budget line, which is a legal instrument empowering finances for co-productions throughout the European Union, from which British producers and others have benefited. A number of Danish and Swedish co-productions have been shown on British television, which have been of huge interest to viewers in this country. Going forward, will we benefit from that budget line to the same extent and will co-productions still be viewed as a positive development? It will be of great interest, I am sure, to the film and broadcasting industry to know if that is the case.

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[Lord Ashton of Hyde]

I cannot always keep up with the noble Lord, but I will try. I am very grateful, as I said in our last outing, for his interest in DCMS matters, which is fairly new.

I shall start in a fairly random order with answers to some quick questions before we get on to some of the points that the noble Lord, Lord Foster, made. The noble Lord, Lord Pannick, asked whether non-ECTT EU countries would be required, therefore, to be licensed in this country. The answer is yes: we have identified 50 to 60 channels which may need a licence from Ofcom in order to continue to be received in the UK. These are mainly specialist minority channels, religious channels and adult services.

[Lord Pannick]

May I ask a question in relation to that? Would it not be more sensible, given that these broadcasters have been broadcasting into this country already and have been licensed in an EU member state, to grant them a licence automatically, rather than their having to apply? Then, of course, Ofcom would regulate them thereafter. If there is a problem, Ofcom may impose conditions or sanctions on them.

[Lord Ashton of Hyde]

If I am allowed to continue, those services that now need to apply for a licence so that they can continue to be available to UK audiences will have a grace period of six months, so they will continue to broadcast into this country. They will have six months to apply for a licence. It is necessary for them to apply for a licence because they should still be regulated by Ofcom in this country; otherwise we cannot control what they produce because we will not have recourse to the EU dispute resolution services. Of course, the six months is not a difficult problem for them because they start on the same basis—today, they are regulated by the AVMSD. We will start on an equal footing for Ofcom to begin to regulate them after the grace period of six months.

[Lord Pannick]

I am grateful to the Minister, but that does not address my point. Why should these broadcasters, who are already broadcasting into this country with, presumably, no difficulty at all, have to go through the administratively burdensome task of applying for a licence after six months? Why should Ofcom have to consider the details of their case and grant them a licence? Would it not be more sensible to say, “Let us continue the status quo, let us deem them to have a licence and, thereafter, Ofcom can regulate them”? Why a new licence? That is my question.

[Lord Ashton of Hyde]

Effectively, that is what is happening after six months. They are being allowed to continue for six months, after which they will have to have a licence. The reason Ofcom is licensing them is so that, in the future, we can make sure that the content they produce is in accordance with the licensing conditions, which we would not be able to do if we were relying only on the AVMSD.

The noble Lord, Lord Puttnam, asked about the Ofcom response and whether there was anything positive or negative. First, there was not a response per se, so it was not asked that question. It was, of course, consulted and the basis of this SI—here I have to disagree with the noble Lord, Lord Pannick—is not trying to create new policy, because all it is trying to allow is for television channels that would otherwise not be regulated to be regulated, because the method by which Ofcom regulates channels is using the AVMSD, and that will not apply any more. Where the noble Lord, Lord Puttnam, is correct is that he gets to the crux of the problem, which is that leaving the EU is the issue that may or may not create a problem for broadcasters, not the actual details of this SI.

The noble Baroness, Lady Crawley, asked what advice I would give broadcasters. My advice to them would be to read the technical notice that we published in September: it precisely answers the question of what they should do and gives such things as the order of priority for being recognised in EU countries, whether it is establishment criteria or technical criteria such as satellite uplink. That is explained there and it makes the point, which I shall come to later, that ECTT may not be the answer in every case and that they should take advice and will possibly be required to have a licence. I shall come to that in a minute. I was foolish to think this would be quick.

The noble Lord, Lord Foster, mentioned video on demand. It is true that one of the differences is that the ECTT does not cover video on demand because, as noble Lords mentioned, it is a relatively old convention. I have to echo my friend in the other place: we are aware of the need to consider a long-term approach to regulating those video on-demand services that are available in the UK, but we cannot do it in this statutory instrument. It would be new policy, to take the point of the noble Lord, Lord Pannick, if we started regulating video on demand. There are some video on-demand channels today, for example, that come from America and are unregulated. We accept that it is a problem and we will have to deal with it in the future, but not through this SI.

The noble Lord, Lord Foster, and my noble friend Lady McIntosh talked about support for the sector: I think they were talking about the creative industries in general rather than just broadcasting. There is no change in the direct impact on such things as creative sector tax relief, which will still apply because they are established in UK legislation and the cost is entirely borne by the UK Exchequer. We have provided reassurance that the Government will underwrite the payments of awards for programmes such as Creative Europe, and have entered into a number of bilateral film and television co-production agreements with other countries, including Canada, Australia and China. I think my noble friend was talking about co-production in particular. We are also party to the Council of Europe’s Convention on Cinematographic Co-production, which will continue to operate after exit. There is a new version of that convention which we are intending to sign.

Lastly, and very importantly, this SI means that, by implementing the ECTT, UK content will continue to qualify as European works. The EU Commission has confirmed that will be true, even if we leave with no deal.

Brexit: Media Hubs

Lord Pannick Excerpts

Monday 9th July 2018 Lords Chamber

[Lord Ashton of Hyde]

It is a good thing that the noble Lord is not in charge of our negotiations if he goes in with that attitude. As I tried to point out, there are good reasons for us to continue with a bespoke deal that is to our mutual advantage. I pointed out the fact that our regulation is widely supported around the EU. He asked for certainty; of course there is not 100% certainty, but you never go into a negotiation with that. As we have said, we are preparing a contingency position, just in case the country of origin principle or equivalent is not negotiated.

[Lord Pannick (CB)]

Does the Minister agree that an effective relationship with the EU in the broadcasting context, as in so many other contexts, will in practice depend on this country accepting the judgments of the European Court of Justice?

[Lord Ashton of Hyde]

I am not sure I accept that. The principle we have in broadcasting is that there is a licensing arrangement: if we are licensed in this country, other countries are prepared to accept that. We delegate that to an independent organisation, Ofcom. I hate to disagree on matters of law with the noble Lord, but I am not sure that that applies. However, of course I will look at what he said, because he knows more about the law than I do.

Data Protection Bill [HL]

Lord Pannick Excerpts

Monday 14th May 2018 Lords Chamber

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

My Lords, I have one question that builds on the point made by the noble Lord, Lord Stevenson. I note that the Minister said that organisations that refuse to hand over information will be in contempt of court. Can he confirm whether there will be a public interest defence built into these provisions?

[Lord Pannick (CB)]

Building on the point about the limited time for scrutiny here, can the Minister also explain whether there is a protection for the sources of journalism, with no obligation to disclose sources? Is there a protection for legal professional privilege and matters of that sort?

[Lord Ashton of Hyde]

I am grateful for the contributions made by noble Lords. The first thing to acknowledge is that these amendments were made at a reasonably late stage in the Bill but not a very late stage, in the sense that it was in the second House. We considered the Bill first and the second House amended the Information Commissioner’s powers, so we are now looking at them again. However, I can confirm to the noble Lord, Lord Stevenson, that the Information Commissioner was involved in these powers. That is not to say that, in the course of those discussions, she did not put up some powers that she might like to have but, in discussion with the Government, we settled on some powers that she was content with. I can confirm that she is content with this suite of powers; in fact, she has written to the Minister for Digital confirming as such.

The noble Lord, Lord Clement-Jones, mentioned a dawn raid and asked whether we can do that and, further, whether these powers are on all fours with the Competition and Markets Authority and Ofcom. By and large the powers are on all fours but, as the noble Lord, Lord Stevenson, said, they are not exactly the same. They were modelled on them but they are slightly different, given the different roles and functions that regulators have. As for a dawn raid, the Information Commissioner has the power to ask for a warrant to be issued without notice if the judge is satisfied that giving the controller advance notice would not be appropriate. As I say, we looked closely at the powers of the CMA and Ofcom and modelled them as closely as possible.

The noble Lord, Lord Pannick, asked about protection for journalists’ sources. I can confirm that, yes, the new ICO powers continue to respect the need to protect journalistic sources and legal professional privilege.

The noble Lord, Lord Stevenson, also talked about the Information Commissioner’s resources. As he knows, we have increased the fees and made a commitment in the past that we will make sure that the Information Commissioner has the resources available to do her job properly. We understand the issues that that involves. We need the Information Commissioner to do a proper job and to be able to do so, not least because of the Brexit negotiations and the data adequacy requirements that we will want to continue for electronic commerce.

I think I have dealt with the points raised and, on that basis, I thank noble Lords for their support for these powers.

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[Earl Attlee (Con)]

My Lords, it has been a long and hard struggle to attempt to convince the Government to meet their commitments to complete the Leveson reforms and, most importantly, complete part 2 of the Leveson inquiry. During earlier debates, I claimed not to know any celebrities who were not politicians. I apologise to the House because I should have inserted the caveat, “other than a world-famous international yachtsman”.

I agree with my noble and learned friend the Minister that we should accept the Commons rejection of my Amendment 147, which sought in effect to commence Section 40 of the Crime and Courts Act 2013 in respect of data protection. I shall try to explain why in a moment, but it has nothing to do with the merits.

First, I would like unreservedly to support the noble Baroness, Lady Hollins, and her new amendment which seeks to commence the Leveson 2 inquiry. I agree with everything she has said, and I hope that she will seek the opinion of the House. If she does, I will be supporting her in the Lobby.

I am bound to say that the print media have consistently misrepresented the issues in question. For instance, it has been said that the noble Baroness and I hijacked this Bill to pursue our amendments. It is actually fair comment, but as any noble Lord who has been in opposition knows, it is a perfectly proper standard parliamentary procedure, and I am sure that my noble friend the Government Chief Whip has himself used this technique many times when he was in opposition.

It was also alleged that we cynically excluded politicians from the scope of the inquiry. This is simply not true. We did try to table an amendment that sought much wider terms of reference for the inquiry. Quite properly, the clerks advised us that we needed to restrict the scope of the amendment to data protection issues. It would, of course, be open to the Government to set wider terms to include politicians, and if a Conservative politician is alleged to have done something wrong, I am happy to see them explain themselves to the inquiry.

I turn to my amendments. When my noble and learned friend comes to reply, while he has explained the stick component of Section 40, will he remind the House of how its carrot component works, because I do not think that he mentioned it?

Although the Commons never actually divided on my amendments, they were fully debated and it is clear to me that there is no realistic prospect of the Commons changing their mind. There is no Salisbury problem with the amendment tabled by the noble Baroness, Lady Hollins, because she genuinely believes that if we send it to the Commons, we may get a different answer. However, I would suggest that this will probably be the last roll of the dice.

I feel bound to comment on the exceptionally effective campaign run, presumably, by the News Media Association. Whoever is running it knows what they are doing, although we have all been playing hardball. However, what is disturbing is that I have been silenced and skilfully suppressed nearly everywhere except in your Lordships’ Chamber, and therefore I am extremely grateful to the BBC programme, “The Big Questions”, for allowing me to contribute to yesterday’s debate. It is not clear to me why the Convenor of the Cross Bench Peers politely declined my offer to address the Peers on my amendment but nevertheless later allowed Sir Alan Moses, the chairman of IPSO, to address the Cross-Bench Peers. In the days immediately after our votes on Report, despite one national newspaper devoting three whole pages to criticising some noble Lords, my name was mentioned only once in any national newspaper, and I suspect that that was an accident. It is good that the press is supposed to be biased, opinionated and partisan.

Despite trying very hard, I was able to secure only two meetings to discuss the Leveson amendments with two Conservative MPs, and they had very good reasons to do so but nevertheless, quite understandably, they voted with the Government. Even the Leader of your Lordships’ House declined to have a meeting with me in the week preceding the vote in the Commons to discuss these problems—so much for free speech. The very same honourable Members who declined to meet me had helped to produce a majority of 530 to 13 in the vote to insert new Section 40 in the Crime and Courts Act 2013. What is going on?

I welcome the Government’s Cairncross review into the sustainability of the press. This is one of the Government’s arguments for not implementing Leveson. When I talked to my local editor, he was not worried about regulation; his problem was sustainability.

Recently, in accordance with the principal VAT directive, the appropriate tribunal decided that online publications would attract VAT at the standard rate. This is a tax on information and knowledge, when books and publications are exempt. The EU withdrawal Bill has enough difficulties without me raising another one, and I do not want to tie the Minister’s hands, but can my noble and learned friend write to me—and perhaps to my noble friend Lord Black—to assure us that the appropriate officials are aware of the risk of negotiating away our freedom to zero-rate online publications post Brexit?

Much of the debate on Section 40 has centred on state regulation of the press. At the moment, unfortunately, we have covert state regulation because anyone in government, particularly sources close to No. 10, can suggest to the media that Ministers are reconsidering commencing Section 40. This is a completely unacceptable gun, held to the press’s head, which must be deactivated at the earliest possible moment. Worse still, it could inadvertently lead to the press self-censoring in the case of a story that might, in any case, make for difficult ethical and legal decisions for the editor concerned. Can the Minister indicate when this very short Section 40 repeal Bill will be presented to Parliament?

If we are not to implement the Leveson press reforms, we need to commence part 2 of the inquiry to find out what has gone wrong in the past, ensure that it is not continuing and prevent it from recurring. As one of our briefings today put it, the past is a prologue for the future.

[Lord Pannick]

My Lords, I declare an interest as one of the few counsel who has acted in privacy cases for both the Daily Mail and Mr Max Mosley. I cannot support the amendment in the name of the noble Baroness, Lady Hollins. I remind your Lordships of what the Conservative Party manifesto said before the election last year:

“Given the comprehensive nature of the first stage of the Leveson Inquiry and given the lengthy investigations by the police and Crown Prosecution Service into alleged wrongdoing, we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press”.


As your Lordships know, the Commons held a lengthy debate on this subject last Wednesday and voted not to institute a Leveson part 2. Your Lordships’ House has heard the pro and con arguments on many occasions.

I want simply to emphasise two points. Amendment 109 introduces extensive new powers on the Information Commissioner in relation to the press and, as the Minister has already indicated, it requires the commissioner to conduct a review of the press in the short term. Also, over the years, there have been not just police, and other, inquiries: a large number of civil actions—cases against the press—have been brought by phone-hacking victims. Those victims have not gone without remedy; they have received very substantial financial compensation, and rightly so. It is true that some of the claimants were celebrities, but many were not; they were victims of phone hacking because, for example, they were related to television actors or spent the night with a footballer. Reprehensibly, the press hacked their phones. They brought legal actions; the lawyers acted on a conditional fee basis. After the event, insurance ensured that there was no financial risk to the claimant, so it is simply not the case that victims of phone hacking lack, and have lacked, legal remedy. Newspapers have rightly been ordered to pay substantial sums by way of compensation. It is simply unrealistic to think, in the light of the criminal prosecutions and civil liability, that the message has not got across. I respect, of course, the views of the noble Baroness, Lady Hollins, the noble Earl, Lord Attlee, and the others who support this amendment, but it really is time for this House to give way to the views of the Commons on this matter.

[Lord Cormack (Con)]

My Lords, I support what the noble Lord, Lord Pannick, has just said. I also have the utmost respect for the noble Baroness, Lady Hollins. She has shown that she is a doughty campaigner; she passionately believes in her cause, and she has every right so to do.

I want to dwell on just one aspect: the relationship between the two Houses of Parliament. I hope that I have shown that I am not afraid to vote against the government line; I have done so frequently recently and I do not regret it, because I have done what I thought was right.

When we take such a line, we ask the other place to think again. However much the noble Baroness, Lady Hollins, may regret it, the other place has thought again. This is not the moment to introduce new amendments—to protract the ping-pong by bringing in a new ball. With proper deference to the elected House, we have to accept the line that it has taken. There are of course other arguments that one could deploy—it has been said that this is not the right Bill and all the rest of it—but the matter has gone to the other place; it has made its decision. We would be overemphasising our constitutional legitimacy if we sought to reject what it has said.

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[Baroness Neville-Jones (Con)]

My Lords, I thank my noble friend the Minister for the Government having carried these provisions in the Commons. More importantly, the patient support groups for which I spoke are very gratified because they regard these amendments as absolutely vital to their ability to carry on their important work. If I might say so, it is a very satisfactory outcome.

[Lord Pannick]

My Lords, I welcome Commons Amendment 188 on the confidentiality of legal advice. As the Minister knows, a concern has been raised, long after the 11th hour, about the position of arbitrators. The concern is that the Bill addresses the data protection obligations of judges and lawyers but does not address the data protection position of arbitrators. Arbitration is of course an important legal service, in which this country leads and provides services to the world. All I can do at this stage is to ask the Minister and the Bill team whether they will reflect on this concern, which has been raised not just with me but with him. If he thinks that there is any basis for concern, will he consider using the very extensive powers conferred under the Bill to bring forward regulations to address the issue?

[Lord Clement-Jones]

My Lords, as the Minister made clear in his lucid introduction, this is a really significant group of amendments. It is very good to see that some of the work that was done in this House has come back in the form of amendments. In particular, the Minister will remember that it was my noble friend Lord McNally who raised issues around Thomson Reuters in the first place. However, I know that there will be considerable pleasure in the financial services industry, which is very concerned about such things as money laundering, anti-corruption measures and so on, and making sure that it can process data in pursuance of achieving those important goals.

I congratulate the noble Baroness, Lady Neville-Jones, on her campaign, which has clearly borne fruit here. I had not heard what the noble Lord, Lord Pannick, had said but there seems to be a bit of a hole in the Bill if that is the case. I can certainly testify to the fact that arbitrators are an incredibly important part of our judicial system. Indeed, within it they are one of our global competitive advantages; therefore if anything is done that is to the detriment of our arbitration system, it would be really quite serious.

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[Lord Ashton of Hyde]

I am grateful to the noble Lord. That brings me nicely to the point made by the noble Lord, Lord Pannick, about arbitrators. The noble Lords, Lord Clement-Jones and Lord Stevenson, mentioned the importance of arbitration to the economy of this country. I am only too well aware of it from my background in insurance. London has a very well-respected legal system, but the arbitration system is linked to that. We certainly would not wish in any way to hinder it. Contrary to what the noble Lord, Lord McNally, did, the people who brought this up seemed to do so at the last minute. I slightly wonder how they managed to miss this trick, if it is so obvious, for the two years that the GDPR has been in place, let alone—

[Lord Pannick]

Could I suggest to the noble Lord that they were too busy arbitrating?

[Lord Ashton of Hyde]

They should have hired a lawyer. The point is that it is a perfectly valid point. We have sought to replicate in the Bill, as far as possible, the existing provisions relating to legal professional privilege. We had several discussions about that in the 1998 Act, including the relevant exemptions to rights and obligations for personal data. I cannot help but notice that the Arbitration and Mediation Service, given that we are trying to replicate as far as possible existing provisions, appears to have been operating without undue burden for the last 20 years, but I am certainly prepared to undertake to the noble Lord, Lord Pannick, that we will look at that with a view to making sure that this is not a serious problem. We certainly have not been able to do it in time. I can confirm to him that, if there is a problem, the Bill contains regulation-making powers to address this concern. The only thing I can say on that is that, quite rightly, those regulations would have to come before both Houses of Parliament. If there is a concern he will be able to address it later.

The noble Lord, Lord Stevenson, is quite correct that we talked about me making a statement or addressing concerns about the individual application of the GDPR and the Bill to Peers. I assumed I would do so if it was necessary and if the subject came up, which, luckily, it has not. Just to be clear, it is not just that Peers and other citizens of this country are suffering under the GDPR, although they might have obligations that they were not aware of before and, I agree, certain extra ones because the GDPR has direct effect; it also greatly increases individual subject rights. It makes sure that individuals’ personal data, in particular sensitive personal data, is better protected in law and by a regulator, who, thanks to your Lordships’ agreement, has real power to make sure that the data regime is obeyed. I believe that the House authorities have issued a statement to all Peers. Of course, my department is there to address this. The first avenue that Peers should use for the individual circumstances is the House authorities.

Data Protection Bill [HL]

Lord Pannick Excerpts

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

[Earl Attlee]

There is a simple answer to that—the noble Lord should test that in the courts and test it in Europe.

[Lord Pannick (CB)]

My Lords, I am very grateful to the noble Earl for mentioning one of the many cases over the years in press law that I have lost. I mention to noble Lords another of those cases, in the Court of Appeal in 2015, when I represented entirely unsuccessfully Mirror Group Newspapers, which sought to overturn the very substantial damages that had been awarded to individuals, some of them famous and some of them not, whose mobile phones had been hacked by journalists and whose data had been used to write articles breaching their privacy. A woman who had had a relationship with an England footballer was awarded damages of £72,500. An actress who appeared in “EastEnders” was awarded £157,000 in damages—and so on.

The reason why the courts awarded damages of that extraordinary magnitude, far more than you would get if someone deliberately ran you down and severely damaged your health, was precisely because of the factors that the noble Baroness, Lady Hollins, mentioned in opening this debate. It is about the personal nature of the intrusion and the suspicions that are engendered as to how the press obtained this information. Was it from friends or relatives who had betrayed you? It is about the very real impact that this has on your personal behaviour; it inhibits, inevitably, the communication that you have with friends and relatives. The claimants in these cases were represented by expert solicitors and by a counsel acting on a conditional fee basis, which meant that, when they won the case, MGN had to pay substantially increased costs, as well as insurance premiums. The costs—because the case related to dozens of claimants—were in the millions of pounds. Similar claims have been brought against other newspaper groups, and the noble Baroness, Lady Hollins, mentioned in her opening remarks that further proceedings are imminent.

I mention all this to emphasise that, when newspapers breach data protection laws, as they have, they have paid for it, and rightly so. Nobody who knows anything about what used to be called Fleet Street could seriously doubt that journalists and editors now take data protection seriously. They would be mad not to do so. In the past few years, editors and journalists have gone to prison for criminal offences related to breaches of data protection. Editors and journalists have lost their jobs in relation to such matters. A prominent newspaper, the News of the World, was closed down. Newspaper groups have paid tens of millions of pounds—perhaps more—in damages and costs. This Bill will create a powerful new administrative machinery to enforce data protection law. All that is rightly so, and I complain about none of it; it is absolutely right that the rule of law applies.

The question is whether we really need a public inquiry on this subject, which will take years to report and cost a fortune to the public purse, occupying the time of busy people who can productively be engaged on other matters. I say to the House that we do not need an inquiry to establish what happened in the past—any number of trials, criminal and civil, have examined the facts, sordid as they are—and we do not need a public inquiry to ensure higher standards of conduct in the future. An inquiry in the terms set out in the amendment of the noble Baroness, Lady Hollins, would be so broad in nature that it would impede the ability of editors and journalists to get on with the vital work of holding government and powerful private individuals and companies to account.

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[Lord Falconer of Thoroton]

This is the crux of the position. Now that it seems to be accepted that things are not okay, if that is the case, what is required is an inquiry. As I understand what is being asserted, a change is proposed in the form of Section 40 and there are those who say that we should not make a change. I think that it is important not to be taken in by the siren song that everything is okay.

It is important that there should be a second inquiry. We promised it and we should not break that promise. I also think it would be wrong to suggest that Sir Brian Leveson is against a second inquiry. I do not know what his position is, but we should not assume that he is either in favour or against it; his views need to be canvassed. I strongly support the amendment tabled by the noble Baroness, Lady Hollins.

[Lord Pannick]

I am not suggesting that breaches do not occur; I am not an apologist. My position is that if and when errors are made and wrongful acts occur, the law has ample means of dealing with them. We do not set up a massive public inquiry in areas of the law or practice whenever there is a risk that wrongful acts are going to take place. My position is that we have inquired sufficiently into these matters, and to the extent that there are still wrongful things going on, the law provides perfectly adequate remedies, and indeed under this Act there will be perfectly adequate administrative procedures.

Data Protection Bill [HL]

Lord Pannick Excerpts

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

[Lord Pannick (CB)]

My Lords, I repeat my declaration of interest as a barrister acting in privacy cases including, I should mention in relation to this group, acting for the NMA in its unsuccessful attempt to challenge the recognition of Impress, a case which continues.

I shall speak first to Amendment 53. It seeks to remove paragraph 24(3) of the schedule which recognises,

“the special importance of the public interest in freedom of expression and information”.

I am surprised that the noble Baroness is seeking to remove that provision because it has been the law of this country for centuries. Because it has been the law of this country for centuries, a provision to almost identical effect appears in the Human Rights Act 1998 at Section 12(4). It is also the approach taken by the European Court of Human Rights in relation to Article 10. The idea that our law should no longer recognise the special public interest in freedom of expression is therefore a surprising one and would lead this country’s law into conflict with our international obligations under Article 10.

I shall speak also to Amendments 59 and 64 and express my agreement with what has just been said by the noble Lord, Lord Black. If enacted, these amendments would deprive journalists throughout the national and local media of all the exemptions under the Bill unless their employers choose to register with a regulator approved under the royal charter. The question for noble Lords is: why should a journalist on the Financial Times, or indeed on the Borehamwood Times, lose exemptions under this legislation and be hindered from doing his or her job effectively because the newspaper by which they are employed decides that it sincerely does not wish to be regulated by a royal charter regulator?

The fact of the matter, which is quite clear, is that Amendments 59 and 64 seek to use this Bill for what is a wholly extraneous purpose, seeking to compel newspaper groups into submitting to regulation under the royal charter or, as the noble Lord, Lord Black, put it, bullying newspapers in that respect. This Bill is simply not an appropriate vehicle for such an exercise.

[Lord Berkeley of Knighton (CB)]

My Lords, I have listened to the debate for several hours and I am growing increasingly worried about one or two things. In a sense I am going to act as a devil’s advocate. I believe passionately in a free and inquisitive press. For many years, I was one of its number both in the written and the spoken word. I believe that the press is absolutely vital to holding us all to account. But I have begun to feel that, in castrating Leveson’s work to such an extent, the public are going to lose confidence in public inquiries. Let us hope that that does not happen with Grenfell, although the residents of that tower, who live two roads away from me, are already beginning to think so.

Last year I attended a meeting in a committee room where Gerry McCann, PC Jacqui Hames and Hugh Grant spoke of their quite awful experiences. It is important that we remember the victims and recite these woes. I have not heard any expression of acceptance on this side of the House, or concern about some of these matters. I would go with noble Lords much more about not loosening things if I heard some kind of admittance that there are problems.

[Lord Pannick]

The answer to the noble Lord was given by the noble Lord, Lord Finkelstein, in the previous debate. The fact is that many of these individuals have justifiably brought civil claims against the newspaper groups concerned. They have recovered and are continuing to recover very large sums in damages, and no doubt rightly so. The News of the World closed down because of its conduct and individuals went to prison in circumstances where they broke the criminal law. That is the answer. No one is suggesting that terrible things were not done, but there are existing legal remedies and they have been applied.

[Lord Berkeley of Knighton]

I am grateful to the noble Lord, who obviously knows a great deal about the matter—more than I do. I still think that we should question the ability for this to happen in the future. Surely the whole point of the Leveson inquiry was to tighten things up so that this would not happen so much. When I listen to people talking about what happened to them and how they felt that they had very little recourse—although they took civil action and some of them won—I accept that newspapers shut down, but my goodness, perhaps they should have done. These things are right.

In listening to the debate, I was very impressed by the speech of the noble Lord, Lord McNally. It is not that I do not believe in the press—believe me, I think that the press does a wonderful job, by and large—but even those of us who are involved in doing wonderful jobs do so because we can look at ourselves and say, “We got this wrong”. That is what I have not heard enough of. My noble friend Lady Hollins is having a rather tricky time; she is up against some big guns.

What do the future victims have if they do not have recourse to law—if they believe that Leveson was the answer and we gradually remove most of his recommendations, which is what we seem to be doing? Perhaps noble Lords are right; perhaps in law we should be getting rid of them, but I am worried that the public will begin to think, “What are these inquiries? Why does the status quo always remain exactly the same?”. That is why I wanted to speak up for my noble friend Lady Hollins. We must think a bit more about people whose lives are sometimes ruined just by innuendo. As we have heard, they might get a tiny apology at the bottom of the page, but the damage is done—and it can be terrible.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I did not intend to speak on these amendments, although we support them from these Benches, but I have to take issue with what the noble Lord, Lord Pannick, said—I think, quoting the noble Lord, Lord Black, from the previous debate—about how we do not need any of this stuff because people can sue the newspapers and achieve redress through those means.

When I was a commander in the Metropolitan Police Service, I was subjected to a kiss and tell story on the front page and eight inside pages of a tabloid newspaper. The story was a mixture of lies and intimate details of my private life and my relationship with somebody I loved and lived with for three and a half years. We broke up in acrimonious circumstances and subsequently he was paid £100,000 by the tabloid newspaper to tell these lies and intimate details of my private life. Thankfully, a group of solicitors and barristers agreed to a conditional fee agreement to pursue the newspaper. However, half way through the preliminaries leading up to the court case, it became apparent that I was unable to secure insurance against losing. Therefore, I was faced with a situation where if I pulled out of the action I would have to pay both sides’ costs—the newspaper’s costs and my own side’s costs because the conditional fee agreement would happen only if the case went to court and I lost—and could have lost my home.

The point is that there are many ordinary people, less high-profile than even I was at that time, who cannot get conditional fee agreements. They do not have the means to sue newspapers. Certainly, I would not recommend anybody going through the stress that I was put through by that newspaper and its lawyers, who tried every trick in the book to try to get us to fold before the court case happened. As it happens, two weeks before the case was due to be heard, they agreed to settle, although they claimed that it was not on the grounds of a breach of privacy but because everything that had been printed in the newspaper was untrue.

For noble Lords to say that there are sufficient safeguards at the moment for ordinary people to take the newspapers to court is, in my respectful submission, completely untrue.

[Lord Pannick]

I am very sorry to hear about the noble Lord’s personal experience and of course I accept everything he says. But will he accept that hundreds of people have brought legal proceedings against national newspaper groups for their wrongful, unlawful action in accessing personal data—for example, by listening to their mobile telephone calls—and publishing articles in consequence of that, and they have recovered very substantial damages, and rightly so, against those newspapers?

[Lord Paddick]

I completely accept what the noble Lord says but there are many hundreds, if not thousands, of other ordinary people who have not been able to claim redress for the wrongs that have been meted out to them by the press.

Data Protection Bill [HL]

Lord Pannick Excerpts

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

Moved by

[Lord Pannick]

48: Schedule 2, page 138, line 44, at end insert—
“Confidential trust information
The listed GDPR provisions do not apply to personal data in respect of which the controller is (or acts as agent or confidential adviser to) a trustee or other officer of a private trust to the extent that the data consists of information—(a) which records any person’s deliberations about the manner of exercise of a power or discretion under that trust, (b) which discloses any person’s reasons for any particular exercise of such power or discretion, or(c) upon which such deliberations or reasons were or might have been based.”

[Lord Pannick (CB)]

Amendment 48 is in my name and the name of the noble and learned Lord, Lord Walker of Gestingthorpe. It concerns the law of trusts, and I should mention, as the noble and learned Lord is unlikely to do so, that for many years he was the leading trusts practitioner at the Bar. During his career on the Bench, including in the Appellate Committee of this House, in the Supreme Court and in the Judicial Committee of the Privy Council, he gave many of the leading judgments that define the modern law of trusts.

I declare a much more modest interest as a practising barrister. I am not a specialist in the law of trusts but, as I explained in Committee, I know that the law has long recognised that a trustee is not obliged to disclose to a beneficiary the trustee’s confidential reasons for exercising or not exercising a discretionary power. The law recognises that if the trustee were to have such a duty of disclosure it would impede the trustee’s ability to perform his or her function, the effective exercise of which depends on confidentiality. The public interest is protected because the court has an inherent jurisdiction to supervise and, where appropriate, to intervene in the administration of trusts.

A recent Court of Appeal judgment, Dawson-Damer v Taylor Wessing, has prompted a concern of trust practitioners about the applicability of data protection law in this context. I have received powerful representations on this subject from the Trust Law Committee, which is a group of leading academics and practising lawyers. One of its concerns is that in other jurisdictions, such as Jersey, the data protection legislation contains express statutory restrictions on the right of a data subject to make a subject access request where that would intrude on the principle of confidentiality. Those who practise in this area are very concerned that offshore trusts, and offshore professionals providing trust services, are already actively encouraging the transfer of trusts business away from this jurisdiction because of data protection concerns. The irony in this is that data protection law may be driving trust business towards less transparent offshore jurisdictions.

The noble and learned Lord, Lord Walker, and I, accompanied by other trusts lawyers, had the benefit of a very helpful meeting with the Minister—the noble and learned Lord, Lord Keen—and members of the Bill team. I am extremely grateful to them for the very constructive discussions we had. I very much hope that the Minister, when he replies to this short debate—I hope it will be short—will be able to confirm three matters.

The first is that the Government understand and are sympathetic to the concerns raised by the Trust Law Committee, which I have just summarised. The second matter, which I hope the Minister can confirm, is that the Government’s view is that article 15(4) of the GDPR, which states that the right of access,

“shall not adversely affect the rights and freedoms of others”,

applies in this context to protect the confidentiality principle. The third matter, to which I hope the Minister will be able to respond, is that if that view is shown to be erroneous in future litigation—I anticipate the Government do not believe this will be the case, but if it were to occur—I hope the Government would consider using the delegated powers conferred by this Bill to enact a specific and express exemption. I recognise, of course, that the Minister will be unable to commit the Government to any future course of action. I hope that the Minister will be able to respond positively on those three matters. They would go a long way to alleviating the concerns of trusts lawyers. I beg to move.

[Lord Walker of Gestingthorpe (CB)]

I have added my name to the amendment proposed by my noble friend Lord Pannick, and I shall say a few words in support of it. I do not want to repeat any of the points my noble friend has made, but I shall say a little bit about the practicalities of the documents that are likely to be the subject of data access requests by a disappointed beneficiary who wants to circumvent by the use of these powers the traditional confidentiality of discussions between trustees, even if put down on paper, which has been established in English law for about 50 years or more.

Discretionary trusts are still very common—surprisingly, in a way, given the increasingly complex inheritance tax provisions that affect them. I am talking about trusts with English law as the proper law and trustees resident in this country, who pay all the income tax, capital gains and inheritance tax that is due from them from time to time. In my experience, trustees of long-term discretionary trusts are often not solicitors or accountants but friends or acquaintances—reliable people trusted by the settlor with important discretions. Solicitors and accountants are, of course, involved, but they get their fees for professional advice. The trustees themselves generally get no remuneration for taking on what are sometimes huge and increasingly worrying responsibilities.

Discretionary trusts commonly confer wide discretions over both the disposition of income and the eventual destination of capital—usually it is a trust over income and powers over capital, but I need not go into those technicalities. Often, there will be a large class of beneficiaries who can be the objects of the exercise of the trustees’ discretion, typically a settlor’s children and remoter issue, very often their spouses or some remoter relatives or friends—named, of course, rather than just left as “friend”—and named employees and retainers. All those beneficiaries are, in a sense, in competition with one another. They do not, of course, seek favours from the trustees, but the fact is that the trustees sometimes have to exercise very difficult decisions on how to spend resources.

It is the duty of the unremunerated trustees to keep themselves fully informed about the beneficiaries. They have to take account of births, deaths, marriages, separations and divorces; of success or failure in education, and in business or professional life; of disability or injury—and sometimes, sadly, of beneficiaries who have become addicted to drink, drugs or gambling. So let us imagine trustees of a discretionary trust who meet once or twice a year to consider how they will distribute income and whether they will distribute capital in the course of that year, or six months. In a sense, all the beneficiaries are in competition, and inevitably the confidential minutes of the trustees’ deliberations will record how the trustees approached those competing demands and how they measured up, as they have to in a sense, the claims of one beneficiary rather than another on the settlor’s bounty. It is a consideration by the trustees collectively of all the competing claims on the settlor’s bounty, yet the data subject, to use the phrase in the Bill, who will in this case typically be a disgruntled and disaffected beneficiary, is entitled to information about the data subject himself or herself alone. That is fundamental to how the provisions work, which is underlined by paragraph 14 in Part 3 of Schedule 2, which relieves the data controller, who in this case will be the solicitor or accountant who keeps the trust records,

“to the extent that doing so would involve disclosing information relating to another individual who can be identified from the information”.

If one looks at the practicalities, the likelihood is that those confidential minutes would have to be so savagely redacted with the censor’s blue pencil as to be barely comprehensible—certainly, not giving any sort of true picture of how the trustees had operated. Redaction would be troublesome and oppressive to the trustees, but even more oppressive—and I come back to the central point made by the noble Lord, Lord Pannick—is the fact that the trustees, who are typically unremunerated and doing their best to do what is sometimes a very difficult job, would be compelled to disclose what was not redacted to the disaffected beneficiary: the data subject. For those reasons, which I have briefly given, and all the reasons given by the noble Lord, Lord Pannick, I support the amendment.

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

My Lords, I begin by thanking the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Walker of Gestingthorpe, for taking the time to meet me and officials to explain in detail the concerns following the debate in Committee. The question about the interaction of the fundamental principles of trust law and the GDPR is a valid one that we understand, and which deserves a response.

In Committee, my noble friend the Minister conveyed that it is not our intention to compel trustees to disclose the kind of information described in the noble Lord’s amendment. The Government both understand and are sympathetic to the noble Lord’s concerns in this respect.

Article 15 of the GDPR confers a general right for a data subject to seek access to personal data held by a controller, but there are a number of exemptions, set out directly in both article 15 and in Schedule 2 to the Bill. The amendment of the noble Lord, Lord Pannick, seeks to add an additional exemption to Schedule 2 to preserve the confidentiality of trustees’ decision-making and to minimise the risk of disagreement between beneficiaries and trustees, to which the noble and learned Lord, Lord Walker, referred. The Government’s position remains that article 15(4) of the GDPR already prevents the disclosure of the material the noble Lord’s amendment is concerned with. This is because the Government consider that the,

“rights and freedoms of others”,

referred to in article 15(4) includes the rights of both trustees and other beneficiaries. Where disclosure under data protection law would reveal information about a trustee’s deliberations or reasons for their decisions that would otherwise be protected from disclosure under trust law, the Government’s view is that disclosure would adversely affect the rights and freedoms of trustees and beneficiaries in the trustees’ ability to make independent decisions in the best interests of the trust without fear of disagreement with beneficiaries.

While I appreciate the noble Lord’s concerns, rushing to codify what in trust law is generally referred to as the Londonderry principle would, we consider, be a disproportionate step. The wider potential risks and unintended consequences involved mean that pre-emptive action in this area, far from clarifying the position, might actually confuse it. Should the law be tested after Royal Assent and found wanting—which, I stress, the Government do not expect to happen—the delegated power in Clause 15(1) allows the Secretary of State to bring forward regulations to correct this. By that point it will be much clearer what deficiency, if any, has in fact been identified in the law and we would expect a Government to consider those powers in such circumstances. I hope that is a full and adequate response to the three points the noble Lord, Lord Pannick, made. In those circumstances, I invite him to withdraw the amendment.

[Lord Pannick]

I am very grateful to the Minister. He has responded positively to each of the points that I made. I know that the House is anxious to move on to reaffirming freedom of speech. Therefore, I will say no more other than to beg leave to withdraw the amendment.

Amendment 48 withdrawn.

--- Later in debate ---

[Lord Lester of Herne Hill (LD)]

My Lords, we had rather strong debates in Committee and I am not going to repeat any part of those. I have thought about how I could best help the House at this stage, and I think it is by stating what I believe the law to be and why Amendment 50A, if carried, would put the Bill in breach of the Human Rights Act and the European Convention on Human Rights.

When the Bill was first introduced, the Minister certified, as is required under the Human Rights Act, that in his view it was compatible with the convention rights; those being the right to free speech, the right to personal privacy and the right to equal treatment without discrimination. The amendments that the noble and learned Lord, Lord Keen, has introduced in this group would pursue the convention rights and, if carried, as I hope they will be, make sure that the Bill continues to be compatible with the convention rights.

In the light of the speech by the noble and learned Lord, Lord Brown, it would be quite unnecessary and wrong for me to go through the relevant law in any detail. But perhaps I can help the House a bit by giving a very brief summary of why I consider the government amendment compatible, and the amendment put forward by the noble Baroness, Lady Hollins, or those supporting Hacked Off and all the rest, incompatible.

The position is this. Article 10 of the convention protects the right to free speech and freedom of the press, subject to necessary and appropriate exceptions. One exception is, of course, personal privacy, which is guaranteed by Article 8 of the convention. The test the convention uses, as interpreted by the European Court of Human Rights, is a pressing social need test. The starting point is free expression and any restriction or limitation on that right must be in accordance with legal certainty and must be proportionate. The Human Rights Act requires that all legislation, old and new, including this Bill, must be compatible with the convention rights. It also requires courts to read and give effect to the convention compatibly with those rights.

Together with the noble Lord, Lord Pannick, I edited a textbook, the third edition of which we published in 2009. It has a whole chapter on free speech and another on privacy. What I am trying to summarise now, we spelled out in that large textbook some years ago. I am trying to help the House by giving a legal opinion on what I consider the law to be. I very much hope that the noble and learned Lord, Lord Keen, will correct me if I have got it wrong in any respect, because the House needs to know that if it were to support Amendment 50A, it would, in my view and that of the noble and learned Lord, Lord Brown, put the Bill in breach of the convention and the Human Rights Act. The Minister could then no longer certify that it was compatible with the convention rights.

[Lord Pannick]

My Lords, I declare an interest as the co-author with the noble Lord, Lord Lester, of Human Rights Law and Practice, available in all good bookshops. I declare an interest also as a practising barrister. I have represented newspaper groups many times in relation to privacy and freedom of speech issues, but I have also represented individuals complaining about breaches of their privacy—individuals as diverse as Max Mosley and Her Majesty the Queen. Noble Lords may remember that the contents of Her Majesty the Queen’s breakfast tray were disclosed in the Daily Mirror by a footman who was, in truth, a foot-in-the-door man from that paper. I speak, therefore, from legal experience.

I agree entirely with what was said by the noble Lord, Lord Lester, my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Colville. We should be very slow indeed to limit the scope of the exemptions for journalists and in relation to academic, artistic and literary material. Without these exemptions, as defined in government Amendment 50, journalists cannot do their job effectively: you cannot investigate child sex abuse in Rotherham, corruption in Tower Hamlets or any of the other examples that have been given if those you are investigating are entitled to see the data you are processing that relates to them. Such data may not be “necessary” but it may be material that needs to be retained and published. It is as serious as that.

These are not theoretical concerns. Earlier this year, Mr Justice Popplewell dismissed a claim by James Stunt, a businessman who was married to one of Bernie Ecclestone’s daughters. Mr Stunt complained about a number of articles in the Daily Mail and the Mail on Sunday, claiming rights under the Data Protection Act 1998. The judge dismissed the claim, stating in paragraph 56 of the judgment that journalism would be discouraged or impeded,

“if the subject had access to the detailed extent or direction of the investigation, of the information gathered or of the intended story”.

That is right. In my view, government Amendment 50 adopts the right approach with its focus on the reasonable belief—not any belief, but the reasonable belief—of the data controller that publication is in the public interest.

It gives me no pleasure to say that many of the amendments in this and the next group are not concerned with promoting the ability of journalists and others to carry out their essential functions under Article 10 in relation to freedom of speech and freedom of information. They pursue a different agenda: either to encourage newspaper groups to join Impress as their regulator or to punish the press for the wrongdoing of some of its members. I say to noble Lords that that should not be the concern of this Bill, which should focus on protecting freedom of information in relation to data.

I cannot agree with manuscript Amendment 50A. It would provide a field day for those seeking to impede academic work, artistic and literary expression, and journalism that they do not welcome. It would inevitably create a chilling effect on work in academia, the arts, literature and journalism. I simply do not understand how a necessity test would work. When the journalist, the academic or the artistic or literary individual is conducting the processing, they cannot know whether it is necessary for future publication—they may reasonably believe that it will be or that it may be, and that is enough. Manuscript Amendment 50A, if accepted, would seriously damage freedom of expression in this country. As the noble Lord, Lord Lester, said, it would be a blatant breach of Article 10 of the European Convention on Human Rights.

Data Protection Bill [HL]

Lord Pannick Excerpts

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

[Lord Pannick (CB)]

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

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

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

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

“the Commissioner must have regard to”,

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

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

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

[Lord Faulks (Con)]

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

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

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

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

--- Later in debate ---

[Lord Ashton of Hyde]

I completely agree with the noble Baroness. We have applied the GDPR principles to areas such as defence, national security and the intelligence services in different parts of the Bill so that when we seek an adequacy arrangement, we can say to the EU that we have arranged a comprehensive data protection regime that takes all the GDPR principles into account, including areas that are not subject to EU law. That is why, contrary to what we said in Committee, we have taken the arguments on board and tabled government Amendment 1 to provide reassurance on that exact point. We originally said that the rights under article 8 were contained in the Bill, but we are now putting further reassurance in the Bill. Other areas of the Bill, without direct effect, signpost how the Bill should be regarded.

The noble Baroness supports the amendment but would like, I think, to create a free-standing right. I have explained why we do not agree with that. Before Third Reading, we will try to seek a form of words in our amendment that provides more reassurance, so that when it comes to seeking an adequacy decision—we cannot do that until we leave the EU—there will be no doubt about what this regime provides. That would be the best way to do it, I think.

[Lord Pannick]

Does the Minister also agree that a further answer to the points made by the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Mackay of Clashfern, is that it is absolutely inevitable that the detailed provisions of the Bill will be, on occasion, the subject of dispute, uncertainty and litigation, and that it would be very helpful to have a statement of principle on what is intended at the commencement of the Bill? This would not be the first time that a Bill has done that. Everybody would then know what the principles were. Of course, the Minister still needs to consider before Third Reading what that statement should be, but that is the point, as I understand it, of government Amendment 1.

[Lord McNally]

Why does the Minister feel it so necessary to push ahead with his amendment when it is quite clear that the best and most constructive way forward would be for both amendments not to be pressed to allow constructive discussion and resolution at Third Reading?

[Lord Faulks]

My Lords—

[Lord Pannick]

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

[Lord Ashton of Hyde]

I thank the noble Lord. As I said in Committee, we too saw no need for this. The Government have moved because they are always listening and we hope that we can make this more acceptable. I will read what was said by the noble Lords, Lord Pannick and Lord McNally, and my noble friend Lord Faulks, but I would like to press my amendment so that we might have it as a basis for further discussion before Third Reading.

Data Protection Bill [HL]

Lord Pannick Excerpts

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

[Lord Clement-Jones (LD)]

My Lords, this amendment arises from concerns about the narrowness of the derogations based on article 89 of the GDPR for research statistics and archiving expressed by a number of organisations, notably techUK. The argument is that there should be a derogation similar to Section 33 of the Data Protection Act 1998. That Act makes provision for exemptions for research and development where suitable safeguards are in place. The GDPR limits this to scientific and historical research, but member states are able to legislate for additional exemptions where safeguards are in place.

The organisation techUK and others believe that the Bill’s provision for scientific and historical research should be broadened, involving the same provisions as Section 33 of the Data Protection Act 1998, and that the definition of scientific and historical research needs clarification. For example, it is not clear whether it would include computer science engineering research. I very much hope that the Minister will be able to clarify that. I recognise that the amendment leads the line in this group but may not be followed in exactly the same way. I beg to move.

[Lord Pannick (CB)]

My Lords, I shall speak to Amendment 86BA, in my name. It concerns the application of data protection principles in the context of the law of trusts. The law has long recognised that a trustee is not obliged to disclose to a beneficiary the trustee’s confidential reasons for exercising or not exercising a discretionary power. This is known as the Londonderry principle, named after a case decided by the Court of Appeal, reported in 1965, Chancery Division, page 9.1.8. The rationale of this principle was helpfully summarised by Mr Justice Briggs—recently elevated to the Supreme Court—in the case of Breakspear v Ackland, 2009, Chancery, page 32, at paragraph 54.

The principle is that the exercise by trustees of their discretionary powers is confidential. It is in the interests of the beneficiaries, because it enables the trustees to make discreet but thorough inquiries as to the competing claims for consideration for benefit. Mr Justice Briggs added that such confidentiality also advances the proper interests of the administration of trusts, because it reduces the scope for litigation about how trustees have exercised their discretion, and encourages suitable people to accept office as trustees, undeterred by a concern that their discretionary deliberations might be challenged by disappointed or hostile beneficiaries and that they will be subject to litigation in the courts.

There is, of course, a public interest here, which is protected by the inherent jurisdiction of the court to supervise and, where appropriate, intervene in the administration of trusts, as the noble and learned Lord, Lord Walker of Gestingthorpe, stated for the Judicial Committee of the Privy Council in Schmidt v Rosewood Trust Ltd, 2003, 2 AC 709.

The problem is that, as presently drafted, the Bill would confer a right on beneficiaries to see information about themselves unless a specific exemption is included. A recent Court of Appeal judgment in Dawson-Damer v Taylor Wessing, 2017, EWCA Civ 74, drew attention to the general applicability of data protection law in this context unless a specific exemption is enacted.

My understanding, which is indirect—I declare an interest as a barrister, but this is not an area in which I normally practise—is that in other jurisdictions such as Jersey, the data protection legislation contains a statutory restriction on the rights of a data subject to make a subject access request where that would intrude on the trustees’ confidentiality under the Londonderry principle. Indeed, I am told that those who practise in this area are very concerned that offshore trustees and offshore professionals who provide trust services are already actively encouraging the transfer of trust business away from this jurisdiction because of the data protection rights which apply here, and which will apply under the Bill.

The irony is that the data protection law is driving trust business towards less transparent offshore jurisdictions and away from the better regulated English trust management businesses. I have received persuasive representations on this subject from the Trust Law Committee, a group of leading academics and practitioners, and I acknowledge the considerable assistance I have received on this matter from Simon Taube QC and James MacDougald.

This is plainly a very technical matter, but it is one of real public interest. I hope that the Minister will be able to consider this issue favourably before Report.

[Lord Hope of Craighead (CB)]

My Lords, I want to add a word in support of the points made by the noble Lord, Lord Pannick, particularly with reference to the concerns that some people have expressed about money being moved out of the very closely and properly regulated regime of English trust law to offshore organisations and jurisdictions which are less careful about how people’s money is handled.

I should declare an interest as Chief Justice of the Abu Dhabi Global Market Courts. I am not suggesting that this has anything to do with Abu Dhabi, but it has introduced me to an aspect of trust law with which I was not previously familiar, and it bears closely on the point made by the noble Lord, Lord Pannick. He referred to Jersey as one of the jurisdictions of concern. One aspect of its legislation which has come to my attention through my connection with Abu Dhabi is the Foundations (Jersey) Law 2009. This is a structure set up by statute under Jersey law which is matched with an equivalent statute in Guernsey. It creates a form of trust which is, as it were, a hybrid between a trust and a corporation with a number of aspects that are described very well in Sections 25 and 26 of the Jersey law.

One of the points about the foundation, which appears in Section 25, is that a,

“beneficiary under a foundation … has no interest in the foundation’s assets; and … is not owed by the foundation or by a person appointed under the regulations of the foundation a duty that is or is analogous to a fiduciary duty”.

So the beneficiary under that system is rather different from a beneficiary under our system, where undoubtedly they have an interest in the foundation’s assets. But also to the point is Section 26, which provides that foundations are,

“not obliged to provide information”.

That has its counterpart in the point made about the Data Protection Act in that jurisdiction. It says that except,

“as specifically required by or under this Law or by the charter or regulations of the foundation, a foundation is not required to provide any person … with any information about the foundation”.

It goes on to say in subsection (2) that the,

“information mentioned in paragraph (1) includes, in particular, information about … the administration of the foundation … the manner in which its assets are being administered … its assets; and … the way in which it is carrying out its objects”.

I do not wish in any way to criticise how the foundation laws are run in Guernsey or Jersey, but it is a pattern which, if repeated in less scrupulous jurisdictions, has obvious attractions. People move into a foundation and nobody knows what part of the foundation money they own, because they are not supposed to own any part of it, and the foundation is not obliged to disclose any information at all. There is a risk that those who are keen, for whatever reason—it could even be for matrimonial reasons—to conceal their assets could move them offshore from a trust such as we have in this country, closely regulated and subject to the ordinary rules, to one of these other bodies, which we would not wish to encourage. One has only to look at the Criminal Finances Act 2017 and some of the clauses in the Sanctions and Anti-Money Laundering Bill that is before the House to see that we are taking a completely opposite line to the foundations laws, because we are insisting that we should be provided with information about what organisations of this kind hold and, indeed, who holds what assets. We have not got as far as actually requiring trusts to do that but, certainly, anyone who puts his money into a company, in an attempt to conceal his assets within the company, will be forced eventually to have that information disclosed.

I add these points to suggest that the point that the noble Lord, Lord Pannick, made has a great deal of substance, which one can trace through the foundations law. I stress again that I am not criticising how this is administered in Jersey or Guernsey—that is not really the point. The point is that those who would wish to copy their systems are subject to less close scrutiny. I also emphasise that I am not suggesting that we in this country would want to adopt a foundations law; that would really be quite contrary to how our current legislation is proceeding. So there is an important issue here about protecting ourselves—and those who set up trusts here and administer them properly according to our rules and conventions—against a loss of business, which would be detrimental not only to those who run the businesses but to the whole ethic by which we practise our trust law.

I hope that the Minister and those advising him will look carefully at the Jersey and Guernsey examples, with a view not to criticism but to sensing the risk to which the noble Lord, Lord Pannick, drew our attention.

--- Later in debate ---

[Lord Ashton of Hyde]

Yes.

[Lord Pannick]

May I add to this fascinating debate? Does this not illustrate one of the problems of the withdrawal Bill—that in many areas, of which this is one, there will be two potentially conflicting sources of English law? There will be this Act, on data protection, and the direct implementation through the EU withdrawal Bill on the same subject. The two may conflict because this Act will not contain the recitals.

[Lord Clement-Jones]

My Lords, all I can say is that I do not know how the legal profession will cope in the circumstances.

Data Protection Bill [HL]

Lord Pannick Excerpts

Monday 30th October 2017 Lords Chamber

[Baroness Royall of Blaisdon (Lab)]

My Lords, I rise to move Amendment 10 in my name and the names of the noble Lords, Lord Pannick and Lord Macdonald of River Glaven. In doing so, I declare my interest as principal of Somerville College, Oxford.

The GDPR, which will be brought into effect in domestic law by the Data Protection Bill, will have an impact on many aspects of university business from procurement to the commercialisation of research. Universities up and down the land are therefore now making preparations to ensure that they will comply with the new requirements. It is immensely complex, and throughout the Committee stage issues will be raised which are pertinent to universities.

With this amendment I am concerned about one aspect of the life of universities, colleges and schools which will be severely impacted by the GDPR. It is our ability to fundraise and to maintain alumni relations, hence our amendment, which is probing at this stage. I have only recently become aware of the huge importance of alumni relations and fundraising and of the fact that they are inextricably linked. As a consequence of financial constraints and government encouragement, universities, colleges and schools are having to raise more and more money to provide the education and the excellent facilities rightly expected by students.

As far as universities are concerned, with potentially reduced tuition fees, Brexit and, despite what the Government may say, a reduction in the number of foreign students, the need to raise money will increase. At Oxford, the system that I now know best, the excellent tutorial system demands even greater resources. I do not complain. However, with the introduction of the GDPR our alumni relations and fundraising ability will be severely limited unless we can find a way through, for example by stating that a college, school or university is not a public authority for the purposes of the GDPR. Naturally universities, including Oxbridge colleges, are concerned to ensure that personal data is processed lawfully in the course of contacting alumni for fundraising purposes, and we want to ensure that we work in the most cost-effective way. I should stress that none of the contacts made to our former students relates to cold calling. We are talking about alumni, people who spent three or more years as students, with whom we have therefore have a long-standing relationship. With regard to a college such as Somerville, our alumni feel they belong to a community and they want us to remain in close touch with them.

As the Minister, will be aware, under the GDPR, in order for the processing of personal data to be lawful at least one of the six conditions set out in article 6 of the GDPR must apply. The most important change to the lawfulness conditions by the GDPR concerns the consent condition. The GDPR sets a high standard for consent requiring a positive opt-in, and unless opt-in consent has been obtained, or is obtained in future, current and future contact with alumni will be limited. It is clear that existing consents are unlikely to meet the GDPR standard and as a result all fundraising and alumni databases might have to be rebuilt from scratch and/or a huge exercise undertaken to secure explicit consent from all our former students if the consent condition were to be relied on by colleges to justify their processing of alumni data. This is an enormous administrative task and hugely time-consuming. At Somerville, we are already grappling with the new consent standard, and it is both difficult and detrimental.

I understand that when the Council for Advancement and Support of Education—CASE—met DCMS and the Information Commissioner in May it was suggested that the legitimate interest condition could, in appropriate circumstances, be relied on by fundraisers. However, this condition does not apply to processing by public authorities. While the GDPR contains no definition of public authority, Clause 6(1) states:

“For the purposes of the GDPR, the following (and only the following) are ‘public authorities’ and ‘public bodies’ under the law of the United Kingdom—


a public authority as defined by the Freedom of Information Act 2000”.


The Freedom of Information Act 2000 contains in Schedule 1 a list of public authorities which includes, at paragraph 53,

“the governing body of … a university receiving financial support under section 65 of the Further and Higher Education Act 1992”,

and,

“any college, school, hall or other institution”,

of such a university. It is clear that universities, colleges and schools fall within this definition of public authority, which would mean that the legitimate interest condition could not be applied and they would have to rely on either the public interest condition or the consent condition.

I know that the Bill team recently had a meeting with UUK at which this issue was discussed. Oxford University was not present, but this was not due to lack of interest or concern; it was agreed that Cambridge should represent the interests of Oxbridge as a whole. At this meeting, the Bill team was apparently clear that it had put exemptions in the Bill to protect the position of universities. I am glad that there is no policy dispute, but I have to say that my noble friends and I have been unable to identify the exemptions.

The Minister may say that it is a matter that will be dealt with by guidance, but I regret that in my view guidance will not suffice. This is a matter of huge importance to universities as well as to colleges and schools, and there needs to be clarity in the Bill. I look forward to the Minister’s response. If, as I suspect, we do not reach agreement today, I would be grateful if the Minister’s office could arrange a meeting with interested Peers so that we might discuss this further. I beg to move.

[Lord Pannick (CB)]

My Lords, I declare an interest as a fellow of All Souls College, Oxford. Although All Souls has no students and therefore no alumni, it has former fellows. I endorse everything that was very eloquently said by the noble Baroness. There is a problem here. It needs to be addressed. My understanding is that the Government are sympathetic to the mischief which the noble Baroness has identified. For the reasons she has explained, the mischief is not remedied by the terms of the Bill and I very much hope that the Government will be able to indicate today that they are sympathetic and are willing to meet the noble Baroness, Lady Royall, and others to find a way in which these concerns can be addressed as they ought to be.

[Lord Macdonald of River Glaven (LD)]

My Lords, I have put my name to the amendment and I declare an interest as the warden of Wadham College, Oxford.

It is important to underline, as the noble Baroness has, that fundraising is now intrinsic to the financial well-being of institutions of higher education. That is certainly true of my college. It is intrinsic and critical because, along with conference business and other means of raising money, it helps to plug the gap that exists between fee levels for students and the real cost of educating them. It is clearly in the public interest that colleges and universities be placed in the strongest possible position to raise money to plug that gap.

It is equally important to bear in mind that the sort of fundraising that we are talking about does not involve random mailshots to unsuspecting victims, but regular contact over years with individuals who overwhelmingly regard themselves as members of a close community and are much more likely to complain if they are not contacted than if they are. I have experienced that many times. Requiring colleges to rebuild their alumni databases from scratch could serve no conceivable public benefit; indeed, it would lead to a significant public disbenefit, because it would weaken our ability to fundraise in already straitened financial circumstances.

I certainly agree with the noble Baroness that guidance would be insufficient in this situation. This matter is of such importance to the economic well-being of the institutions in question that it must be dealt with in the Bill. I very much look forward to hearing the Minister’s response and would wish to attend any meeting, should one be arranged.

Data Protection Bill [HL]

Lord Pannick Excerpts

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

[Baroness Ludford (LD)]

My Lords, I am also pleased, as co-signatory, to support the amendment, the purpose of which is to retain in domestic law wording from the European Charter of Fundamental Rights concerning data protection. This is for the benefit of British citizens and to help ensure that vital data flows for business and law enforcement can continue if we Brexit.

The specific article in the EU charter, Article 8 on data protection, is stronger in this respect than the older non-EU European Convention on Human Rights, which deals with privacy only under the rubric of protection of family and personal life. The Government plan that the charter should cease to be part of UK domestic law after Brexit in Clause 5(4) of the European Union (Withdrawal) Bill. This broader issue will be considered as part of the scrutiny of that Bill, and there is a cross-party amendment tabled in the House of Commons and led by Dominic Grieve MP to remove that clause such that the charter continues to apply domestically in the interpretation of retained EU law. Liberal Democrats strongly support that amendment, but it seems appropriate not to wait for or depend on the success of that broader effort and at least effectively to embed the thrust of the charter as it concerns data protection in this Bill, which largely concerns EU law.

This is extremely important because if we Brexit, the UK will seek from the European Commission an adequacy decision on UK data protection so that transfers between the UK and the EU can continue smoothly—an objective the Prime Minister has singled out for mention. If we leave, EU states may no longer be able to share data with us unless our legal regime on matters including state surveillance powers aligns with EU requirements. The adequacy assessment will be wide-ranging, taking in all aspects of law and practice in the UK. The embedding of the charter’s data protection right in this Bill would be an important safeguard for business continuity—especially for tech companies, which depend crucially on the free flow of data—as well as ensuring that essential cross-border police and intelligence co-operation is not disrupted.

I, my noble friends Lord McNally and Lord Paddick, and other noble Lords raised at Second Reading the need for measures to protect us from threats, not to undermine our civil liberties. We are used to the European Court of Human Rights ruling on privacy issues, several times finding the UK in breach of the convention, but more recently in the digital age it is the European Court of Justice—the EU court—that has come into play as EU law on protection of electronic communications and the provisions of the Charter of Fundamental Rights has begun to bite. The Snowden revelations brought heightened sensitivity about the extent of the legitimacy of the activities of our intelligence services.

The EU data retention directive—the EU law on mandatory mass data retention—was pushed through Brussels in 2005 when the UK had the presidency of the EU by the then UK Home Secretary in an expert piece of lobbying after the London bombings of that year. In a landmark 2014 judgment, the court struck it down as incompatible with the right to respect for private life and data protection under Articles 7 and 8 of the charter. Then, as mentioned by the noble Lord, Lord Stevenson, the judgment on DRIPA last December—technically, the Tele2/Watson case, although initially also involving the then Back-Bench David Davis MP—continued in the same vein, declaring that mass data retention was “disproportionate” to citizens’ rights to privacy. Its implications for the Investigatory Powers Act and the question of whether bulk collection of communications data could be permitted to infringe privacy on the grounds of pursuit of serious crime or threats to national security may be ascertained by the reference to the European court made by the Investigatory Powers Tribunal in September. Certainly, the wide range of powers in the Investigatory Powers Act might look vulnerable to being found in conflict with EU law. The Independent Reviewer of Terrorism Legislation, Max Hill, suggested that it was unclear whether the ruling in the Watson case on safeguards for data retention regimes could be interpreted as applicable to national security.

It is true that while in the EU the national security exemption from EU competence applies but, as was brought out at Second Reading, if we were outside the EU the arrangements for our intelligence agencies would go into the whole mix that is assessed for compliance with EU standards. The court’s decision in July, rejecting the legality of the EU agreement with Canada on the transfer of passenger name record details, provides a salutary lesson in how the court approaches third-country transfers. It struck down the agreement because several of its provisions were incompatible with EU fundamental rights. It is therefore crucial that we embed the wording of Article 8 of the charter.

The Labour Opposition have tabled an amended version of Amendment 4, namely Amendment 4A. This is an interesting variation and I look forward to learning a bit more as we progress about exactly how the new wording would work. As I understand it, the safeguards in subsection (1) of the proposed new clause and the first part of subsection (2), which are replicated from Amendment 4, would and should still govern the,

“provisions, exceptions and derogations of this Act”,

otherwise, the point of writing in safeguards is undermined.

I wonder about the reference to,

“purposes as set out in the GDPR”,

since the GDPR is concerned only with the processes for data manipulated in accordance with purposes set down in other instruments. I am slightly unclear about that.

I believe that there has been concern about a conflict with press freedom. Of course we are suffering here from the fact that we have only a partial bite from the charter, which contains a firm provision on freedom of expression and information as well as on the right to security. When we succeed in retaining the whole charter in domestic law via the EU withdrawal Bill, the whole balancing exercise will become more apparent than with this snapshot. In the meantime, we have to proceed with entrenching this partial aspect of the charter as concerns data protection.

[Lord Pannick (CB)]

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

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

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

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

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

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

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

[Lord Faulks (Con)]

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

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

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