Brexit: Museums and Galleries

Lord Ashton of Hyde Excerpts

Monday 4th March 2019 Lords Chamber

[Lord Lee of Trafford (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as the chairman of the Association of Leading Visitor Attractions.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, DCMS is working with our world-leading national museums and galleries in England to evaluate the potential impacts of Brexit and supporting them as they develop and implement their plans. Due to the ongoing uncertainty, some national museums and galleries have implemented elements of their plans for Brexit, particularly around the movement of objects in March and April.

[Lord Lee of Trafford]

Is the Minister aware of the sickening abuse suffered by some front-of-house EU nationals at a number of our great cultural institutions, making many reluctant to wear name badges? That aside, there are three areas of particular concern: the ability to recruit and retain staff, particularly those with language skills; the worry that overseas visitors may give the UK a miss this year, until Brexit issues are clarified; and, importantly, whether DCMS and the Treasury will replace the EU culture funds vital to many building projects and exchange programmes.

[Lord Ashton of Hyde]

My Lords, on the noble Lord’s first point about staff being abused, we were aware of that, particularly after the result of the referendum was announced, but we are not aware of it recently. I should make it absolutely clear that it is deplorable, unacceptable and should not happen and that we welcome foreign nationals working in and visiting our museums. It is possible that tourism may go down, but we are optimistic. In fact, VisitBritain forecasts that visits will grow by 3.3% this year, which is similar to the average rate.

Turning to European cultural funds, for the museum and gallery sector these are remarkably small. One or two individual museums have had European funding and we will guarantee to support funding until the end of the multiannual financial framework. However, to put it into perspective, all public funding for museums and galleries is about £844 million a year. The biggest European fund, Horizon 2020, has given €14 million in the entire seven-year multiannual framework.

[Lord Cormack (Con)]

My Lords, does my noble friend accept that many of the greatest exhibitions in London and the provinces depend on loans from kindred institutions in Europe and elsewhere. Will he give an assurance that this will be at the forefront of the Government’s thinking? If some of these wonderful exhibitions ceased to be, scholarship would suffer, our museums and galleries would suffer, and we would suffer.

[Lord Ashton of Hyde]

I completely agree with my noble friend and this has been one of the issues that we have discussed with the museums and galleries. In fact, some of the contingency plans I mentioned are about exactly that: the movement of objects. Museums are using a different route, not taking the short cross-channel crossings, and are allowing more time for that.

[Baroness Liddell of Coatdyke (Lab)]

My Lords, further to the point about the disincentive for people coming to the United Kingdom to work in the industry, whether in galleries, museums or the hospitality sector, £1 spent in a remote community can generate a further £7. However, that requires people to be available to work in hotels, shops and galleries. There is a clear disincentive for them to come. It is six weeks until Easter and the hospitality industry is gearing up for the next season, but it is already saying that it is unable to recruit the young people who make up the backbone of the industry. What will the Government do about that, especially if there is the supposed 3.3% increase in inbound tourism? People will not come back if they do not get good service.

[Lord Ashton of Hyde]

I completely agree, and that is why, as I said in an Answer on tourism last week, the tourism sector deal concentrates on skills, recruitment and avoiding a high turnover in jobs. It is trying to make those jobs more long-term to provide the service that visitors rightly expect. The third-quarter figures were down, particularly for short-haul visitors, but they have rebounded. The Office for National Statistics reported a 4% increase in October.

[Baroness Grender (LD)]

My Lords, given last week’s finding of the employment tribunal regarding the National Gallery 27, which supported their legal claim to worker status—having been denied it for decades—does the Minister regret that precious resource from a DCMS body was spent in legal action to justify shoddy work practices? Will he ensure that their claim is settled soon and that the National Gallery is held to account for it? What advice are the Government now giving to other bodies using taxpayers’ money to apply the worst practices of the gig economy?

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[Lord Ashton of Hyde]

My Lords, I am not sure that the noble Baroness’s representation is completely correct. The case, as I understand it, was about workers and the employment tribunal has made a ruling. We expect all our arm’s-length bodies to obey the law. If there is a dispute over that, that is what employment tribunals are for. They are called arm’s-length bodies because their trustees have to arrange and run their organisations in accordance with the law. The Government should not get involved.

[Baroness Hooper (Con)]

My Lords, I am a former trustee of National Museums Liverpool; I believe the Museum of Liverpool is still the only national museum outside London. I thank my noble friend for reassuring us on the replacement of European Union funding, but can he also reassure us on the issuing of visas for experts, researchers and students, who make so much of our museum opportunities?

[Lord Ashton of Hyde]

My Lords, I am not sure that the Museum of Liverpool is the only national museum outside London; there are the Science Museum Group, the Royal Armouries and the V&A that has just opened in Dundee. I have probably missed one. The point about visas is important, which is why the Government have allowed people to come for three months on a tourist visa. If they want to stay and work in the UK, they will be able to do so for 36 months, subject to security and identity checks.

Theatre Tickets: London

Lord Ashton of Hyde Excerpts

Thursday 28th February 2019 Lords Chamber

[The Earl of Glasgow]

To ask Her Majesty’s Government whether they have any plans to address the cost of theatre tickets in London and any effect this has on theatregoers.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, commercial theatres in London are responsible for setting their own ticketing price structures. Theatres supported by the Arts Council also operate independently of government and have autonomy in setting their prices. However, many theatres in London operate schemes to encourage more people to attend performances through free or discounted tickets and audience numbers have continued to grow.

[The Earl of Glasgow (LD)]

My Lords, as the Government are almost certainly aware, West End theatre is thriving at the moment. However, the price of a decent seat in the stalls, for example, has nearly doubled in the past three years. The Government may not be aware that the main beneficiaries of these higher prices are not so much the producers of the plays and musicals, but rather those who control access to theatres: the theatre owners, the ticket sellers and the discredited secondary ticket market. London theatres are already becoming too expensive for many regular theatregoers and I hope that the Government will take this issue very seriously. As we all know, one of the many reasons that people come to London is its theatres, but they are gradually becoming too expensive for anyone to be able to attend the major plays.

[Lord Ashton of Hyde]

My Lords, the noble Earl has highlighted an issue at the very top of the range. Some of those ticket prices have gone up and I think the average top ticket now costs more than £100. However, there are many examples of theatres making a big effort to offer cheap prices. For example, the Donmar Warehouse offers free tickets to those aged under 25 each month via a ballot, while the Royal Court Theatre has discounted nights. There are many examples of where theatre seats can be obtained for much less than the top prices.

[Lord Kirkhope of Harrogate (Con)]

My Lords, will my noble friend bear in mind that some of us wonder what this has to do with the Government? In saying that, if people do not go to the theatre in London, surely he should be promoting the wonderful provincial opportunities that we have in this country, be they in Manchester, Leeds, York or Newcastle—and indeed, in view of the Question asked by the noble Earl, in Glasgow as well.

[Lord Ashton of Hyde]

My Lords, I completely agree with my noble friend. That is why the Arts Council spends so much money—an increasing proportion in fact—outside London. We are trying to promote the arts in general outside London and the Arts Council is taking very proactive steps to do that.

[The Earl of Clancarty (CB)]

My Lords, has the Minister seen the study by the National Campaign for the Arts which shows that ticket prices in all areas of the arts are rising at a rate well above inflation because of the reliance on earning money from the public through ticket prices? The result is that the demographic has narrowed and attendance overall falls, while regional inequalities are exacerbated. Will the Government now seriously consider increasing public funding to address these concerns?

[Lord Ashton of Hyde]

The Government spend just under £0.5 billion a year on the arts, along with providing £860 million of tax relief for the creative industries, so we are doing a fairly large amount already. My figures are slightly different. UK Theatre has advised that in real terms—thus taking inflation into account—the overall average price being paid for a ticket has risen by 2% since 2013.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, I remind the House of my interests as in the register. I wonder if the Minister agrees with me—I think he does, because he has virtually said it—that it is very misleading to look just at headline ticket prices. It is true that London theatres are expensive if you want the best seats in the stalls on a Saturday night, but it is possible to go to the theatre in London for quite modest sums. I also ask him to confirm that putting on a live performance of any kind, particularly at scale, is extremely expensive and very difficult to achieve, requiring a great variety of skills and talents. The more we support it, the more likely we are to find homes for all our young people who might be looking to those industries for jobs in the future.

[Lord Ashton of Hyde]

I completely agree with the noble Baroness. As I said, the Arts Council specifically is looking at trying to increase the diversity not only of audiences but of people who work in the industry. For example, we will imminently announce the Youth Performance Partnerships, a scheme for five regional hubs for performance and drama. It will reach up to 10,000 young people over the next three academic years.

[Lord Moynihan (Con)]

My Lords, I declare my interest as co-chair of the All-Party Parliamentary Group on Ticket Abuse. Given the lead this House has taken in delivering effective consumer protection legislation against unscrupulous ticket touts, will my noble friend the Minister do everything possible to promote face-value exchanges for ticketing to address the continuing blatant disregard of the law by companies such as Viagogo?

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[Lord Ashton of Hyde]

I absolutely agree with my noble friend, and I believe enforcement action has been taken against Viagogo. It is not 100% certain that it has complied with the court order, in which case it will be taken back to court. We take it seriously and, as my noble friend knows, have taken measures to crack down on the worst abuses in secondary ticketing, such as bots.

[Baroness Bonham-Carter of Yarnbury (LD)]

My Lords, I pick up on the question from the noble Lord, Lord Kirkhope. So many of these smash hits playing on the London stage and so much of the talent, both front and back of house, come through the regional subsidised sector. However, it is struggling, partly because of local government funding cuts. Can the Minister assure the House that funding to this sector through the Arts Council and theatre tax relief will be protected in the upcoming spending review? I declare an interest as a trustee of the Lowry.

[Lord Ashton of Hyde]

There are 186 National Portfolio theatres in the country, the vast majority of which are not in London. As for the spending review, we will advocate as hard as we can for the arts.

Online Safety

Lord Ashton of Hyde Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Massey of Darwen]

To ask Her Majesty's Government what action they are taking, in the light of concerns over child bullying and suicide arising from online activity, to strengthen controls over internet providers.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, the Government have been clear that more needs to be done to tackle online harms, including cyber-bullying and suicide and self-harm content, and that the internet companies have a responsibility to their users. The forthcoming White Paper on online harms will set out a range of legislative and non-legislative measures to keep UK users safe online.

[Baroness Massey of Darwen (Lab)]

I thank the Minister for that helpful response. As he said, we are constantly bombarded with stories of suicide, self-harm and bullying on the internet. What can the Government do to co-ordinate efforts to combat such activity online? In doing so, are parents and children involved in discussions on co-ordinating initiatives? Do the Government recognise the importance of not only protecting but empowering children to be resilient and aware of the danger of the internet so that these terrible things do not happen?

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[Lord Ashton of Hyde]

Obviously, I completely agree about the importance of this subject. There is a growing realisation that despite what the big social media companies say they are doing, it is not enough. Hardly anything is more important than protecting children. We support an open and free internet—we think that it is good for the economy, human rights and free speech—but we acknowledge that the Government have a duty to make sure that social media and big tech companies are held to account. We will put out the online harms White Paper to do that. On involving young people in discussions and increasing their resilience, my noble friend Lord Agnew introduced what the Department for Education is doing for relationships education, sex education and health education in secondary schools. The proposed guidance and regulations cover subjects such as how to stay safe online, critically considering information and how people present themselves online, rights and responsibilities, how data is gathered, shared and used, the benefits of balancing time spent online and other important areas, such as consent.

[Baroness Benjamin (LD)]

My Lords, an NSPCC survey found that six out of 10 parents do not think that social networks protect children from inappropriate content, such as self-harm and suicide. Nine out of 10 parents support the regulation of social networks to make them legally responsible for protecting children because, unfortunately, many parents lack the knowledge and confidence to protect their children effectively from online threats. What are the Government doing to encourage and improve digital literacy, especially among parents? Will the Government consider introducing age verification on social media sites as soon as possible to keep our children safe?

[Lord Ashton of Hyde]

I do not want to give anything away but the noble Baroness has set out many of the reasons for bringing forward the White Paper. I agree with how the public feel. It is a question of building trust in these big companies if the benefits are to continue. We will cover education in the White Paper—that has already been talked about—including for parents. The UK Council for Internet Safety has already developed a framework to equip children and young people for digital life and a practical guide for parents, but we will see more on that subject in the White Paper.

[Lord Griffiths of Burry Port (Lab)]

My Lords, the White Paper has been amply referred to; we all look forward to it. I was at a seminar led by the Secretary of State the other day, where he made very high claims for it. He said that things have never been done like this before—that is, in a way that will have an impact on the whole world of IT. He set his standards very high indeed so we will be watching to see whether the proposals match his great statements. I worry that whatever we propose from within our own geography, not just on social media but on global social media, will depend on similar responses from other parts of the world. We have an international treaty to limit nuclear weapons. Knowing what we now know, is it not time that we started an initiative to bring the international community on board and into the conversation, recognising that this is a universal problem that needs a global response?

[Lord Ashton of Hyde]

I agree, which is why we are already consulting with our international partners. There are different views of how the internet should be taken forward, but for child protection and the more egregious things that social media companies do, there is an issue of internationalism, not least how regulations are enforced. That is something we are considering, and one of the benefits of doing it in the traditional way of having a Green Paper, a White Paper and then legislation is that we will continue to have consultation with noble Lords, which we are prepared to listen to. We will set out the views of where we think we are going, but we are open to consultation as well.

[The Lord Bishop of Chelmsford]

My Lords, instead of simply—and importantly—mitigating the harms done on the internet, might we consider a step change about designing the whole thing differently? Does the Minister agree that, instead of thinking about Facebook, Twitter and the like as platforms, if we thought about them as public spaces, required to have a duty of care like any other public space and be regulated accordingly, we would find ourselves in a different place? Is this something the Government are considering?

[Lord Ashton of Hyde]

I agree with the right reverend Prelate, and that is something the Government are considering.

[Lord Alton of Liverpool (CB)]

My Lords, I welcome the response that Matt Hancock has given to the father of 14 year-old Molly Russell, who took her life in 2017, having visited one of these suicide sites. That was a year in which the suicide rate among young females increased by 38%. As long ago as 7 December 2006, I asked the Government to amend the Suicide Act 1961 to enable the,

“banning of internet sites which may incite people to, or advise people on how to, commit suicide”.—[Official Report, 7/12/2006; col. WA 157.]

This is an issue I have raised on a dozen occasions since then, along with the noble Baroness, Lady Massey. While I welcome the White Paper and legislation, will the Minister confirm that this is an urgent issue, which ought to be dealt with as expeditiously as possible?

[Lord Ashton of Hyde]

I agree that it is extremely important; we should expect social media companies to have responsibility, and we should hold them to account. The Secretary of State for Health and Social Care has met social media companies, and written to them on this issue. He had a round table on 7 February to discuss what more can be done, and his department will be hosting a follow-up round table in two months to review progress, so they are taking it seriously. In addition, bearing in mind what the right reverend Prelate said, we are thinking about those issues, as the noble Lord will see when the White Paper comes out.

Libraries: Closures

Lord Ashton of Hyde Excerpts

Tuesday 19th February 2019 Lords Chamber

[Baroness Pinnock]

To ask Her Majesty’s Government what assessment they have made of the impact of the closure of local libraries in England since 2015.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, while the Department for Digital, Culture, Media and Sport does not record details of public library closures for councils in England, it monitors changes to library service provision throughout England. If DCMS receives representations that changes agreed by a council might mean that that council is failing to meet its statutory duty to provide a comprehensive and efficient library service, it carefully considers the evidence before deciding whether a local inquiry is needed.

[Baroness Pinnock (LD)]

I thank the Minister for his reply. He will know that the Government set up the Libraries Taskforce, which produced an action plan in 2016. I thought it was quite an admirable report, which stated:

“Libraries change lives for the better”.


It included reference to tackling social isolation and saving the NHS an estimated £30 million a year. Can the Minister tell the House how libraries can improve lives when in the last year alone £30 million less was spent on local libraries and a further 127 were closed?

[Lord Ashton of Hyde]

My Lords, I agree with the noble Baroness that libraries are important. We certainly think that good libraries are a valuable asset. They strengthen communities and become community hubs. We agree that we should make sure we monitor the role local authorities have in providing a comprehensive and efficient library service. It is not helpful just to look at straight numbers of openings and closings. Sometimes it is the right thing to close a library and to produce a better, more centralised library that is in partnership with other local community areas. We support the idea of it and monitor very carefully the statutory duty local authorities have.

[Baroness Lister of Burtersett (Lab)]

My Lords, the i recently quoted a librarian who spends much of her time helping with universal credit claims. She said:

“People talk about cutting library services without really acknowledging we’re doing a lot to prop up services that haven’t been provided by the Jobcentre”.


Will the Government now acknowledge and fund this vital work that libraries are doing to prop up the universal credit scheme?

[Lord Ashton of Hyde]

I take the noble Baroness’s point. Libraries do more than just the traditional providing of books. The role of libraries has changed because the nature of society has changed with the internet. That is why we funded libraries to have access to the internet so that people who do not have it can get it, and over 99% have. I agree that in some cases libraries fulfil roles that other public services used to do. That is why, as I said, we monitor local authority provision, but we have to remember that this is a devolved responsibility. Local authorities have a duty to provide a comprehensive and efficient library service.

[Baroness McIntosh of Pickering (Con)]

Will my noble friend pay tribute to the scores of volunteers in North Yorkshire who have enabled a series of isolated rural libraries to remain open, and to North Yorkshire County Council for providing the facilities? I am learning the joys of e-books, another facility that rural areas are benefiting from.

[Lord Ashton of Hyde]

I agree with my noble friend. Community libraries and volunteers are both very important. There is no doubt that a number of libraries have closed and the library service is under pressure, as are a lot of other local authority services. The percentage of local government expenditure spent on libraries has in fact remained pretty constant, showing that many local authorities value the services of libraries and continue to make difficult choices to preserve their numbers. One of the ways they are doing so is by getting partnerships with other organisations, in which volunteers play a very important role.

[Lord Tope (LD)]

My Lords—

[The Earl of Clancarty (CB)]

My Lords, libraries are not the only public cultural assets suffering from the Government’s continuing cuts to local councils. Is the Minister aware of the intended sale next month by Hertfordshire County Council of 428 artworks, including work by Barbara Hepworth, Julian Trevelyan and other well-known British artists, despite a petition signed by local people to stop the sale? What is the department’s response to this sad and still avoidable selling off of publicly owned work?

[Lord Ashton of Hyde]

I was not aware of that, but I will ensure that the Minister for Arts, Heritage and Tourism is made aware, if he is not already. It is sad when local authorities sell public artworks, but I accept that they have difficult decisions to make, and that is what local authorities are for. The important thing is that decisions that affect local communities should be taken locally.

[Lord Griffiths of Burry Port (Lab)]

My Lords, this is a question in which all Members of this House can take a personal interest. Each of us could give testimony on what libraries have meant to us. When they were small, our children relied on them often, and even in the age of social media, it is the same thing all over again with our grandchildren. When local authorities have had to cut their budgets by 60% in recent times, closing libraries offers an easy way of saving money, but simply to say that the Government have outsourced responsibilities to local authorities is not good enough to address this question.

Even if the DCMS has not conducted its own impact assessment, the unions have, and without repeating the statistics, it is a horrendous picture of dissatisfaction from those working in libraries at the service they are obliged to offer the public with fewer and fewer resources. Do the Government not feel it appropriate to put this further up the priority list and address this question with urgency, for the good of us all, and our families?

[Lord Ashton of Hyde]

It is very easy to blame the Government when devolved decisions are not to the liking of people living elsewhere, such as noble Lords. I accept that when difficult decisions have to be made, they cause issues. We support local libraries by providing things such as wi-fi. Through Arts Council England we provide the Libraries Opportunities for Everyone Innovation Fund, the private finance initiative and the Libraries Taskforce; all are examples of DCMS centrally supporting the library service. I accept that local authorities have had to make difficult decisions. Libraries actually have been retained and it is worth bearing in mind that many local authorities have refurbished or opened new libraries. Therefore, it is a question of priorities and what a local authority thinks is important for its area.

Brexit: Tourism

Lord Ashton of Hyde Excerpts

Tuesday 19th February 2019 Lords Chamber

[Lord Roberts of Llandudno]

To ask Her Majesty’s Government what steps they are taking to guarantee the adequate staffing of tourism and hospitality projects following the United Kingdom’s withdrawal from the European Union.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, the Government have been clear that we want EU nationals who have built their lives here to remain and that EU nationals will continue to be able to work or study in the UK. We will continue to engage with the sector on the future immigration system, which will cater for a range of skill levels across sectors. The tourism sector deal is in negotiation, and it has a strong focus on future-proofing the sector.

[Lord Roberts of Llandudno (LD)]

Is the Minister aware that KPMG forecasts that we will lose 1 million workers in the tourism industry over the next few years? In Llandudno—where I am from of course—there is great concern over tourism job losses. Not only that, but there is a threat to Welsh agriculture following our new status and the threat of a possible loss of 7,000 jobs at Airbus. In Parliament, I am told that over half of our catering staff are from outside the United Kingdom. Do the Government wish to be remembered for causing the worst recession in nearly a hundred years?

[Lord Ashton of Hyde]

No, my Lords. Tourism in Wales, to which the noble Lord referred, is a devolved competence and Visit Wales is in charge of that as part of the Welsh Government, but I am not going to rely on that. We have been engaging with the sector extensively over the last two years, and we are aware of the immigration priorities. The sector has submitted evidence to the Migration Advisory Committee on the shortage occupation list. In respect of specific levers to mitigate workplace shortages, we need to improve productivity, invest in skills and career development, and reduce high turnover. These are a key focus of the proposed tourism sector deal, which has now entered into formal negotiations; we hope to announce it shortly.

[Lord Watts (Lab)]

My Lords, I understand that the review body has accepted the case for farm workers being given a special deal after Brexit. Who has this review group been talking to? Is it talking to tourism industry groups and musicians et cetera? It seems to me to have lost the ability to see what is going on in the economy.

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[Lord Ashton of Hyde]

I do not know what review group the noble Lord is referring to, but I can assure him that, via the Tourism Industry Council, the tourism sector is engaging and the Home Office has said it will engage on the issue of seasonal workers. We need a provision, where if an industry is reliant on seasonal workers, like some agriculture is, the future immigration system is capable of handling that.

[Lord Dobbs (Con)]

Would my noble friend like to bring a sense of balance to this discussion, and perhaps some common sense?

[Lord Dobbs]

Thank you. Like other Members of this noble House, has my noble friend noticed the latest employment figures from today? They show a record number of jobs in the UK economy, a fall—again—in unemployment and a record level of women in employment: the highest number of women employed in our economy in our history. Does he not think that that should be emphasised rather more than all the doom and gloom we keep getting?

[Lord Ashton of Hyde]

Of course, I agree with my noble friend that it should be emphasised. The issue this brings for certain sectors is whether they can compete in attracting the workforce. As far as the tourism industry is concerned, this sector deal will try to address that, because we need a higher-wage economy which will increase productivity. We need to use things such as automation and training to avoid the turnover that exists in the tourism industry. However, I certainly agree with my noble friend that the Government’s record on employment is excellent.

[Lord Hannay of Chiswick (CB)]

My Lords, would the Minister be prepared to say at the Dispatch Box that any university student who is offered a place by a British university, as registered under the Higher Education Act, and anybody employed as a researcher or an academic at those universities, will be able to come here without any question being raised about how much they are earning?

[Lord Ashton of Hyde]

I think it would be foolish of me to make Home Office policy at the Dispatch Box without having considered it very carefully, but I will look at what the noble Lord says and tell my noble friend from the Home Office about it.

[Lord Wigley (PC)]

My Lords, the noble Lord, Lord Dobbs, referred to high employment. That is the very problem: hotels and restaurants in the tourist industry, in Wales and elsewhere, are unable to find labour. Some of the workers who had come from continental Europe are going back, partly because of the value of the pound and partly because of uncertainty. In these circumstances, there needs to be a positive programme to ensure the availability of labour; otherwise, industries such as tourism, which are vital to Snowdonia and elsewhere, will crumble.

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[Lord Ashton of Hyde]

I am sure that Visit Wales is addressing the problems for the tourist industry in Wales. As I said, the tourism sector deal is trying to raise career prospects in the tourism industry by increasing skills, reducing turnover and enabling technology such as automation to help. From 2021, the new immigration system will address some of those points, and the Home Office has clearly said that it will engage over the next few months—that is the point of a White Paper.

[Baroness Doocey (LD)]

The Government have introduced a seasonal agricultural workers scheme to address that sector’s reliance on migrant labour to do seasonal work. This is very much to be welcomed. Could the Minister explain when the Government plan to do the same for the tourism industry, which faces exactly the same problems and brings into the UK economy £127 billion a year?

[Lord Ashton of Hyde]

The noble Baroness is correct: it represents 4% of the UK’s GVA, so it is an important sector, as I mentioned. I completely understand the issue. The only specific exception that the immigration White Paper has talked about so far is for seasonal workers in agriculture. There is a case to look at other industries, such as tourism, and that is why the Home Office has said it will engage. We at DCMS will certainly liaise and engage with the tourism sector—there is a meeting of the Tourism Industry Council next month.

[Baroness Crawley (Lab)]

My Lords, do the Government know exactly how many workers have been lost to the hospitality and tourism industry in the last couple of years, even before Brexit happens? What are the Government doing to assist those companies that feel they might close down?

[Lord Ashton of Hyde]

The issue is rather the other way: the tourism industry has increased dramatically. The number of visitors has increased. I am not aware that the number of jobs has fallen; I think it is the reverse. There is a shortage of labour that has been filled from the EU. That is why, in the next two years, we will encourage and welcome EU workers. That is why we have said that, until the new immigration system comes in, those who are here already are very welcome to stay and work.

Data Protection (Charges and Information) (Amendment) Regulations 2019

Lord Ashton of Hyde Excerpts

Monday 18th February 2019 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That the draft Regulations laid before the House on 17 December 2018 be approved.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde)]

My Lords, I declare an interest which every Member of this House who speaks will have to declare so perhaps I can save them the bother. I will benefit from the fact that I will not have to pay the £40 charge if the regulations are approved. Secondly, my wife is a parish councillor and will also benefit.

The original regulations were debated and approved in this House on 20 March 2018. Noble Lords may recall that those regulations introduced a new charging structure to fund the Information Commissioner’s Office. The authority for doing so derived at the time from the Digital Economy Act 2017, now superseded by the powers set out in Section 137 of the Data Protection Act 2018. As we promised during those debates, we are now looking to implement a new exemption from the annual data protection charge for elected representatives, candidates for election and Members of the House of Lords for processing that they undertake in the course of fulfilling their democratic duties.

The new data protection framework is about protecting personal data—that is, information that can identify individuals. Some of us in this House will be data controllers—we may hold personal data—and are responsible for how that information is processed. There may be a number of reasons why we hold that personal data—for example, we may have been entrusted with it by members of the public for particular aspects of parliamentary work—but, as data controllers, we have various obligations under the Data Protection Act, including how we look after that information.

While we have previously debated the importance of having an adequately funded regulator, there will be some situations where it would be unreasonable for some data controllers to pay the charge or where the charge would give rise to unintended negative consequences. For that reason, Schedule 1 to the funding regulations details a number of exemptions to the payment of the charge. For example, any data controller who processes personal data only for staff administration purposes, or purely for advertising, marketing and public relations reasons, is not required to pay.

During the parliamentary debate of the original funding regulations on 20 March last year, the Government undertook to review these exemptions. A public consultation took place last summer and has been available online since June 2018. The consultation sought views on whether each of the exemptions was still appropriate; a proposed new exemption for elected representatives, prospective candidates for election and Members of the House of Lords; and whether any other new exemptions should be introduced. Respondents were broadly supportive of the current exemptions regime. However, there was also support for one new exemption for elected representatives, candidates, including prospective candidates for election, and Members of the House of Lords.

The Government’s view is that activity deriving from elected representatives’ public offices and functions should not be liable to a charge. Charges of this nature potentially represent a perceived or actual barrier to democratic engagement. A number of respondents supported this view. In light of this support, we have decided to take this amendment forward for implementation, so I now come to the details of the instrument.

The amendment introduces an exemption for: Members of the House of Lords who are entitled to receive a Writ of Summons to attend this House specifically for the purposes of related functions; elected representatives, as defined in paragraph 23(3) of Schedule 1 to the Data Protection Act 2018 in connection with the discharge of their respective functions; and relevant processing undertaken by candidates, prospective and nominated, seeking to become elected representatives. These exemptions cover those who are acting on instructions or on behalf of such Members and elected or prospective representatives. Importantly, that is not to say that all processing of data conducted by those listed in the amendment, including all Members of this House, is automatically exempt from paying a charge. The instrument makes it clear that the exemption relates solely to processing carried out by these parties in connection with their democratic functions.

In the case of prospective candidates, the exemption would apply only to processing in connection with those activities related to election or re-election in a post. It is important to extend the exemption to anyone seeking to become an elected representative, not just to nominated candidates. This is because formal nomination, the stage at which candidates are defined in electoral legislation, occurs only in the immediate lead-up to an election. Activity to support re-election is likely to predate this stage. Excluding prospective candidates from this exemption would place them at a financial disadvantage compared with their incumbent counterparts. We have restricted the application of the exemption to data processing associated with the functions of our respective roles. This provides a safeguard against misuse, for example by individuals falsely claiming to be prospective candidates.

I want to be clear that the exemption relates only to the payment of the annual data protection charge. It is not an exemption from data controllers’ important data protection responsibilities. Anyone who does not adhere to those responsibilities and principles will face enforcement action by the ICO.

I hope noble Lords will agree that this amendment is important to encourage wider participation in the democratic engagement process. The removal of a requirement to pay the annual data protection charge to the ICO will ensure that all prospective candidates will start their electoral campaigns on a footing equal to that of elected representatives already in post. It also reflects the high regard the Government place upon those undertaking public functions. I beg to move.

[Lord McNally (LD)]

My Lords, we welcome this statutory instrument and the exemptions provided for. Like the Minister and, I think, everybody in this House, we do not want a tax on democracy, but people should be assured that the legal responsibilities remain the same and can be quite onerous. The Minister’s last remark was that we must not allow people to use the candidate or even the MP or Peer as cover for activities that would be outside the narrow exemption of this House.

This reminds me of debates we had some 20 or even 30 years ago—in the early 1990s—when we brought in legislation about the financing of political parties. I remember that those of us who had experience of working for political parties were very conscious that they are all made up of volunteers, often amateurs. There was a danger in that legislation—and I think there still is—of putting on to enthusiastic volunteer amateurs, who make our democracy work, very onerous financial responsibilities in terms of election spending and, in this case, very onerous data protection responsibilities. There might be a case for giving political parties some funding for advice, training and support to make sure that these responsibilities are understood and work well.

What the Minister has had to say is very welcome, and we are all involved in this, but it appears that the initial advice was a little confusing and caused concern. Once these regulations are approved, as I am sure they will be, I wonder whether the House authorities can issue some clear and definitive advice that will be of benefit to Members of this House. We look forward to this SI being passed.

--- Later in debate ---

[Lord Griffiths of Burry Port (Lab)]

My Lords, this seems a sensible measure and the issues have been well rehearsed. There was one area where there was some confusion in my mind, and I hope that noble Lords will not mind my bringing it to their attention now. I, too, am looking forward to not having to pay £40—that is good news, but in exempting Members from both Houses, candidates and so on from the need to pay that charge, we recognise that many of us have other duties and obligations not related to our being Members of this House. We are in employment, we run things and so on, and we handle people’s data other than in the sense that has been described. I guess they will have to pay their £40 or whatever it is, but my confusion lies in the hinterland between those two modes of operation: information gained in respect of activities of one kind can without too much imagination become useful in respect of those of another kind. I wonder whether some thought has been given to handling that kind of confusion and, if so, how. It would be helpful if the Minister could say something about that; otherwise, this seems like common sense and we would have no hesitation in wanting it to go forward.

[Lord Ashton of Hyde]

My Lords, I am grateful to all noble Lords who have responded. This statutory instrument is unique among those I have dealt with recently in having gained a speedy and generally favourable response; I am grateful for that.

I am grateful to the noble Lord, Lord McNally, for his welcome. He spoke about financing political parties and the need to give advice—as indeed did the noble Baroness, Lady Ludford. I can say that the House authorities will take that on board and provide some clear advice, taking into account the new requirements if this statutory instrument is passed; I am very pleased about that.

I acknowledge—the noble Baroness, Lady Ludford, was right about this—that the approach to funding the ICO was originally set by the Digital Economy Act, which was superseded by the Data Protection Act. The method of funding the ICO, and the question of whether it is adequate, have been occupying us for several years. I am pleased that we have finally resolved it. The noble Baroness is right that we decided to do it this way and not as part of the GDPR. Supervisory authorities can be funded in a number of ways. The reason for doing it this way was that it did not involve much practical change from the ICO funding arrangements under the Data Protection Act 1998 and a register is not necessary.

The noble Baroness, Lady O’Neill, talked about an ocean of calm within a broader picture that is possibly not so calming. I agree with her that it is a small but important issue. It is right to deal with an issue that promotes—or at least does not prevent—demographic engagement; and a commitment was made when the regulations were debated last year that we would look at this and take it forward. It is important to carry forward what we said; I take on board her points about the issues alluded to in the DCMS Committee’s report, as outlined this morning. Generally speaking, we have not yet had time to analyse it in great detail but, together with the Cabinet Office, we will be taking forward a lot of these issues around disinformation and its effect on elections, particularly through the online harms White Paper, which will be coming out soon.

The noble Lord, Lord Griffiths, mentioned that Peers have other duties; he asked about the way this exemption would apply in relation to their duties in the House of Lords and elsewhere. He is quite right that, if they are a data controller and have other duties that are not subject to an exemption, they would be required to pay the charge. I will mention this to the House authorities when they issue their advice and hopefully they can be clear. Ultimately, the Data Protection Act says that you must have lawful authority to handle personal data and it is up to you to make sure that is the case; if you handle personal data—other than data that has some limited exemptions provided in the Act—then you will have to pay the charge.

[Lord Griffiths of Burry Port]

I wonder if I could ask for a little more resolution on the matter. My mind is filled with pictures of activities that I myself have engaged in where, by doing work for which I am remunerated, I gain some kind of control of people’s data or the use of it, and at the same time I can be involved in an area where I am exempt from all that. Because of the homogeneity of the activities, one paid and one not, it is not difficult to see that the dividing line between what qualifies and what does not might be difficult to establish, even with the good will of the authorities of the House who write the best guidance that has ever been written.

[Lord Ashton of Hyde]

If the guidance does not produce clarity in the noble Lord’s mind, then I think the answer is to avail himself of the ICO’s telephone hotline, which is there specifically to answer questions such as the ones that he has asked. He will be able to give them the specific examples of where he is unable to be clear. That applies generally to people in public office such as him but also, importantly, to other small businesses; there is a specific small-business hotline that is there exactly to answer questions like his. I hope that has covered most of the issues.

Motion agreed.

Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019

Lord Ashton of Hyde Excerpts

Monday 18th February 2019 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That the draft Regulations laid before the House on 14 January be approved.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, today we are concerned with the protection of personal data once the UK has withdrawn from the EU, when EU law will cease to apply in the UK.

Noble Lords will recall from debates last year on the Data Protection Bill that much of our current data protection framework derives from EU measures. When the UK leaves the EU, the GDPR will be retained in domestic law through the European Union (Withdrawal) Act 2018. That Act also permits fixes to be made so that the retained version of the UK GDPR continues to be operable in a domestic context. That is what the regulations before the House today are designed to do.

Before we look at the changes in more detail, it is important to make clear the general approach. The purpose of this exercise is to correct deficiencies arising from our departure from the EU. As such, these regulations do not significantly affect UK businesses or erode people’s data protection rights. We are looking to maintain continuity. This approach will put the UK in the best possible position to receive a positive adequacy decision from the EU.

Many of the amendments made to the GDPR by these regulations simply replace European Union-related terminology with UK equivalents. For example, there are many references in the GDPR to “member states” or “member state law”. These references have typically been amended by these regulations to refer to “the UK” and “domestic law” respectively, or removed altogether. For greater clarity post exit, the retained version of the GDPR as amended by these regulations will be known as the UK GDPR.

However, simply replacing European terminology with UK equivalents does not address all the deficiencies that arise as a result of our exit from the EU. The Government have given careful thought to how the UK GDPR and the Data Protection Act 2018 should approach these remaining deficiencies. I shall address a number of these important issues in more detail.

The GDPR and Part 3 of the Data Protection Act 2018, which implemented the law enforcement directive, restrict the transfer of personal data to third countries unless certain safeguards are met. One of those safeguards is where the third country concerned, or a sector within the country, has been deemed “adequate” by the EU Commission. Once an adequacy decision has been granted, data can flow freely to that country or sector. In the absence of an adequacy decision, data can still be transferred to third countries, but the onus is on controllers to make sure that alternative safeguards, such as standard contractual clauses or binding corporate rules, are in place to ensure that the data is protected.

--- Later in debate ---

[Lord Adonis (Lab)]

My Lords, if the Minister will forgive me, this is a crucial issue in what is going to happen. Where there is a data controller outside the United Kingdom in a no-deal scenario, will there be a requirement for it to have a representative inside the United Kingdom to replicate the existing EU arrangement? It was not clear from what the Minister has just said whether that will be an absolute requirement.

[Lord Ashton of Hyde]

If they fulfil those conditions that I mentioned, the answer is yes.

I would like to touch on what our exit from the EU might mean for the applied GDPR, as provided for by Chapter 3 of Part 2 of the Data Protection Act 2018. Noble Lords will recall that we created a separate regime which provides for broadly equivalent standards to the GDPR to apply to processing activities that are outside the scope of EU law and covered by neither Part 3 nor 4 of the Act, which deal with processing by law enforcement and intelligence services respectively. This regime currently applies, for example, where a controller other than the intelligence services is processing for national security or defence purposes.

As the EU GDPR will not, as a matter of domestic law, apply directly to any general processing activities when we leave the EU, these regulations are intended to simplify matters by providing for a single regime for all general processing activities. Those provisions in the 2018 Act that provide for the applied GDPR, together with other references to the applied GDPR in legislation, are removed. Importantly, the provisions in the applied GDPR which currently provide exemptions from specified provisions where these are required for the purposes of safeguarding national security or for defence purposes have been retained in the merged regime. These exemptions balance the need to protect personal data against ensuring that the UK’s security and intelligence community can continue to carry out its vital work to safeguard national security. I should emphasise that the merger does not itself alter the purview of EU law so where aspects of domestic data protection law were outside EU competence before exit day, this will not change as a result of this instrument. We have included provisions in the regulations to make that point clear.

I believe that the approach the Government are taking is an appropriate way of addressing the deficiencies in domestic data protection laws resulting from the UK leaving the EU. The aim of these regulations is to ensure continuity for data subjects, controllers and processors by maintaining the same data protection standards that currently exist under the GDPR and the Data Protection Act 2018.

My remarks have focused on the changes made to the GDPR and the Data Protection Act because they are the most significant. For completeness, I should add that the regulations make a number of minor amendments to other legislation, consequential on the amendments we are making to the UK GDPR and Data Protection Act 2018. For example, they amend references to the “GDPR” in other legislation to refer to the “UK GDPR”.

They also address a small number of non-exit-related issues. They clarify that the GDPR definition of consent applies for the purposes of the Privacy and Electronic Communications (EC Directive) Regulations 2003, and address two minor drafting issues that were identified in Schedule 19 to the Data Protection Act 2018, shortly before it received Royal Assent. I commend these regulations to the House

[Lord McNally (LD)]

My Lords, I am not sure the Minister is going to have quite the easy ride he had with the first statutory instrument. My eye was caught by a very detailed briefing by the law firm Fieldfisher on the consequences of this SI. It was the final paragraph that caught my eye. It says:

“From a broader perspective, the creation of a new data protection regime in the UK may present additional complexities for controllers and processors who are caught by both European and UK law and will therefore need to comply with both the GDPR and (in relation to UK customer data) something that looks like the GDPR but which may start to move away from it as time goes on”.


Those last words are ominous. There is no doubt that the GDPR was a great success for European co-operation. The noble Baroness, Lady O’Neill, reminded us earlier of the wide range of issues that we will have to take into account in protecting our democracy from data abuses. There are similar dangers in the protection of our commercial and business life. The value of the GDPR is that it gives us a strength of certainty of European legislation.

I will delay the House a little with a reminiscence. Between 2010 and 2013 I was the Minister at the Ministry of Justice responsible for the earlier negotiations on GDPR. I went to a meeting in Lithuania and throughout the day I noticed that there was one person sat at the table who never participated, voted or said anything. At the end I turned to the British ambassador and asked, “Who is the guy at the end of the table—he has not said anything?” “That is the Norwegian,” he said. “He can come and listen, but can’t vote and he is not involved our decisions.”

I often think of that when I hear people banging on about sovereignty. Sovereignty was best exercised by British Ministers at the table briefed, I have to say, by officials who were the people to go to. I will not name any particular official, but there was one man to go to as GDPR clunked its way through the machinery. There were “light touchers” and those who had quite recently experienced a Stasi or state abuse of personal data and privacy, and balancing the requirements of GDPR was part of the diplomacy our officials showed. I was also greatly assisted by our parliamentarians in the European Parliament: my noble friend Lady Ludford was very influential in steering the GDPR through some choppy waters.

The noble Lord, Lord Forsyth, who is not in his place, said a few weeks ago in one of our Brexit debates that the first time he went as a Minister to Brussels he felt resentment and animosity that he was being, as it were, dictated to by these foreigners. I do not think that I am being too misleading in saying that; I am sure that he will correct me later if I am wrong. He certainly did not feel at home there.

--- Later in debate ---

The Minister gave sweet assurances on how quickly we would deal with adequacy. He is now shaking his head, so let us hear from him.

[Lord Ashton of Hyde]

Just to be clear, I did not say anything about the speed with which the European Commission would provide its decision.

[Lord McNally]

Oh, dearie me. It is always the EU’s fault that we have got ourselves on this particular window ledge.

[Lord Ashton of Hyde]

I am not blaming anyone, but an EU adequacy decision can be given only by the European Commission. It is not a question of blame; it is just a fact.

[Lord McNally]

I will close with another one where I am sure that the Minister is not going to blame the European Commission but say that it is its responsibility. During the period that I am talking about, the stature and influence of our then Information Commissioner had a major impact on how we put the GDPR in place. Again, the Minister was unable to give us any real reassurances about whether we will be at the table in co-operation, or whether it is these difficult foreigners who are going to stop us doing that.

[Lord Ashton of Hyde]

I—

[Lord McNally]

It is no use the Minister saying otherwise, because this is the reality.

--- Later in debate ---

[Lord Ashton of Hyde]

I am sorry, I cannot let that pass. I never said anything about difficult foreigners.

[Lord McNally]

The Minister never said anything about difficult foreigners, but there has always been the impression that this would all be as smooth as smooth. “Do they not understand that we are trying to be helpful?”, we ask, when we have caused Europe so much disruption and cost by this act. In this case, it is essential that we are part of the ongoing dialogue. This GDPR is not the end of the process. As the House was discussing last week, these European laws are going to develop. How we then act and deal with them is going to affect where jurisdiction lies—with European or British courts.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, first I have a couple of housekeeping questions which I hope are not too banal. I find considerable difficulty using the legislation.gov.uk website and its search function. Will the Minister ask his civil servants to check it out? Even if you search for “data protection 2019” under UK SIs, both the previous one and this are difficult to find. There was a 19 December version of these regulations, which were replaced in January. I must admit that I have not pored over every line of both to find the differences. Will the Minister explain why that was necessary?

Secondly, I want to ask about the absence of an impact assessment. Paragraph 12 of the Explanatory Memorandum states that:

“There is no, or no significant, impact on business, charities or voluntary bodies arising from this instrument”.


The pretext is that, while the Government recognise that:

“Data flows from the EEA to the UK may be restricted post-exit”—


because, if there is no deal, we will be plunged into a situation where there is no legal framework and no adequacy decision—

“that is as a consequence of the UK leaving the EU, not as a result of this instrument”.

That is the justification for having no impact assessment. However, if we left with a withdrawal deal and a transition there would be a legal framework, so this instrument, which provides for both a no-deal scenario and one in which there would be no adequacy decision, surely merits an impact assessment as well as the consultation to which the noble Lord, Lord Adonis, referred.

As the ICO has made clear, and as has been mentioned already, businesses may have to deal both with the ICO and with European data protection authorities in every EU and EEA state where they have customers. They may need a European representative if they process the data of people resident in the EEA or have customers in the EEA. There would be additional complexity if they had to comply with both the GDPR and the UK GDPR. They could face concurrent legal claims in both the UK and the EEA. Will the Minister amplify the justification for having no impact assessment? Data flows are crucial to many businesses, not just the tech industry—there is hardly a business or other organisation that they do not affect—so the rather blasé claim that no impact assessment is needed is not justified.

I am a bit confused—it may just be my lack of understanding—about the situation regarding EU adequacy decisions on third countries. Paragraph 2.8 of the Explanatory Memorandum says there will be,

“incorporated into UK domestic law … EU decisions on the adequacy of third countries and on standard contractual clauses, both of which are relevant for … international transfers”.

Paragraph 2.13 says:

“It will not be necessary to retain the EU decisions on adequacy and standard contractual clauses … so these are revoked by this instrument”.


If I have understood the Minister’s presentation, this is explained by the fact that we are recognising and incorporating past EU adequacy decisions, but that in the future, in a no-deal scenario, the UK will take over that function: I venture to suggest that that is not very clearly explained in the Explanatory Memorandum.

[Lord Ashton of Hyde]

Would it help if I just said that the noble Baroness is absolutely right in her interpretation?

[Baroness Ludford]

I do not often get that response from Ministers, so that is very gratifying.

Also, a second version of these regulations was published at the end of last week—I think the Minister referred to it—which is specifically about privacy shields in the US. I am rather surprised that we will have two separate considerations: why could they not have been incorporated into this debate? As the ICO pointed out in a notice a while ago, US companies will need to update their privacy shield commitments to state that they apply to transfers of personal data from the UK. That is a big deal for many companies. It is another reason for what I said about the need for an impact assessment. If that does not happen, a lot of companies will be in serious difficulty.

Will the Minister tell us what advice the Government are giving businesses on using standard contractual clauses or binding corporate rules in the absence of an adequacy decision? The European Data Protection Board issued a notice about this last week, on 12 February. Are the Government going to advise businesses, large and small, exactly how this will work? Lastly, what progress is being made on an adequacy decision? The Minister will know from discussions during the passage of the EU withdrawal Act and the Data Protection Act that many of us are worried about this issue. Last summer, the Government expressed their aspiration for a legally binding agreement that would be more than a unilateral adequacy decision and which would enable the ICO to have a seat on the European Data Protection Board. Essentially, it would be Brexit in name only and would retain all the benefits of being in the EU with regard to data protection structures. That aspiration is not recognised in the political declaration, which talks only about an adequacy decision, so the UK has been knocked back in that area. Perhaps the Minister could tell us precisely where we are. What signal is he getting from the Commission on an adequacy decision? Are we talking months or years?

--- Later in debate ---

I wish the Minister well. He is a good man and will no doubt have a benign presence at the Dispatch Box. Of course we will not oppose this item but we sit down with great regret at finding ourselves where we are.

[Lord Ashton of Hyde]

My Lords, I took the advice of the noble Lord, Lord McNally, that it would not be easy—and he has proved to be right. It is reasonable to take on board the frustrations that some of these SIs have caused—in my view, not so much because of the process which is gone through but the fact that some noble Lords do not want to leave the EU and are highlighting the effects. What they are highlighting may well be the case, but when we are trying to pass an SI such as this one we need to concentrate on its effect and—that did not take long.

[Baroness Ludford]

I am sorry but the Minister must accept this. It is absolutely true—I speak for myself and my Benches—that we would prefer to remain in the EU, but that is not the point about an impact assessment. There is a difference between crashing out with no deal and a transitional period when EU law would continue to be applicable and we would not need all these arrangements. That is what an impact assessment would have to assess. This is about a no deal crash-out and it is perfectly valid to distinguish that from an advocacy of remain.

[Lord Ashton of Hyde]

I agree. That is why the Government are making all efforts to secure a deal. We agree that a deal is the best situation for the country. We are at one with that.

In answer to the noble Baroness, I will start with something which is my responsibility—the legislation.gov.uk website provided by the National Archives. I will take up the matter with it. I am told that it may be helpful to search for “draft statutory instruments” rather than “statutory instruments”. I certainly listened to what she said about the website not working and will check what we need to do.

The noble Baroness, the noble Lord, Lord Adonis, and others talked about the impact assessment and asked why it has not been published. The impact of this instrument, not the impact of leaving the EU, was assessed in line with standard practice following the existing Better Regulation framework. It is focused on the direct impact of the relevant SI compared with the current legislation. The whole point of this SI is to maintain an equivalent regulatory framework to protect personal data. The noble Lord, Lord Adonis, quite rightly pointed out that it affects not only UK businesses but mostly EU and EEA businesses, which will have to have representatives in this country, and I will come to that. It is a reciprocal arrangement. If these regulations come into force and we have a UK GDPR, the same necessity for representatives will take place both ways, and I will come to that.

The analysis, to the best of the Government’s ability, of the wider impact of the UK’s exit from the EU was published in the Long-term Economic Analysis in November last year. The noble Lord, Lord Adonis, talked about representatives and Article 27. He is correct that data controllers who offer goods and services to or monitor the behaviour of data subjects in the UK will need to appoint a representative in the UK, but that is a cost to non-UK businesses, which is what the impact assessment is meant to address. He is also correct that there will be organisations in the UK that will be required as a matter of EU law to appoint a representative in the EEA. The ICO provides data controllers with advice on this obligation and will continue to do so. If controllers and processors based abroad are routinely processing data, it is right that they should be accountable in the UK and have a presence here because this is about maintaining the status quo as far as possible, not about rolling back protections for individuals, so the representative is a point of contact for the data subject as well as the supervisory authorities, such as the Information Commissioner.

[Lord Adonis]

I understand that the Minister is saying that my supposition is correct that after a no-deal Brexit a UK data controller doing business in the EEA will have to have a representative in the EEA as well as in the UK because this will be a reciprocal obligation—the Minister is nodding, so he agrees. The key point is that that is a significant burden on businesses. There is no way of getting away from it. That is a new and significant burden on UK businesses as a result of the regime put in place by this instrument, so why is it not flagged up in the Explanatory Memorandum to this order? Indeed, to take up the point made by my noble friend Lord Rooker, why did our Select Committees not point this out in their analysis of this instrument? My reading is that this is going to be a burden on a very substantial proportion of businesses which conduct business that involves data. Therefore almost all of them that do business on the continent will be required to have a representative on the continent for GDPR purposes which they do not have to do now and will not have to do if there is a deal because we would have continuity of the existing GDPR arrangements.

[Lord Ashton of Hyde]

It is true that they may be required to have representatives in the EEA, and it is a reciprocal benefit. The impact assessment looks at the specific requirements of the SI, not at the requirements of leaving the EU. The long-term consequences for business—

[Lord Wallace of Saltaire (LD)]

I thought I was going to listen to a debate on a specific SI, but there are some very large principles here about the way in which this House should be handling the very large number of SIs which we are expected to get through in the next two to three weeks. If it is correct to say that the Treasury has now laid down that there should be no impact assessment because we can all rely on what the Government told us in general about the implications of leaving the EU, that seems to be close to being totally improper and at the very least to require a formal Statement to this House about how we are expected to deal with this very large number of statutory instruments.

In the circumstances, the most appropriate thing would be for the Minister to withdraw this statutory instrument and to come back in a few days after there has been some consultation on it among the Front Benches. If he is not able to do that, at the very least he should promise that tomorrow there will be a formal Statement to the House on how statutory instruments will be handled from now on. It seems that we are heading into an area where statutory instruments are not being properly scrutinised by this House.

[Lord Ashton of Hyde]

I find it difficult to understand how the noble Lord can say that the SIs are not being properly scrutinised by this House, particularly in comparison with the scrutiny that this instrument received in the other place.

[Noble Lords]

Oh!

[Lord Ashton of Hyde]

I agree with the noble Lord who is saying from a sedentary position that that is why he is here and why it is important. However, taking my personal experience of the telecoms SI, an hour and a half in the Moses Room and an hour in the Chamber seems to be pretty reasonable scrutiny. As for how the House in general and the Government are handling SIs—

[Baroness Kramer]

This is not just a matter of time; it is whether people have the appropriate information to be able to raise and challenge issues. That is the underlying issue that the Minister is running into in this House.

[Lord Ashton of Hyde]

I understand that point, and the noble Lord, Lord Adonis, made it to me forcefully in the Moses Room. This SI has been laid for some time and there have been opportunities for noble Lords to talk to and engage with anyone from the DCMS. I take the point that it is sometimes difficult for Back-Benchers to get information if they do not ask the department. However, I think that the Front Benches have been fairly open in exchanging information on any SI—that is certainly the case in my department. I offered the noble Lord, Lord Adonis, opportunities to ask questions well before the debate, as I think he acknowledged.

It is not for me to say how the House and its sifting committees behave and how the two committees have liaised with each other. However, I will take the noble Lord’s request back to the usual channels. I will not commit to there being a Statement tomorrow but I will certainly take back his point to make sure that the usual channels listen to what he has said. The making of Statements will be up to them—that is not for me; nor is it for me to comment on the work of the sifting committees of your Lordships’ House.

[Lord Wallace of Saltaire]

My Lords, this morning I read a new Commons briefing on the amount of legislation that needs to have been completed to enable us to leave the EU on 29 March in good order. The answer is eight Bills, as well as, still, several hundred SIs. The Government Front Bench keeps telling us that it is perfectly possible to manage that within the next six weeks but, in spite of the remarkably light business that we have this week, it seems that we are very much in Alice in Wonderland territory here. We cannot manage all that within that period, even if we are asked to skimp on the SIs. We know that part of the problem is that the Civil Service cannot manage the impact assessments for these SIs because it is so overloaded and this Chamber is unable to do its job appropriately. The Government have therefore left it too late to be able to leave the EU in good order constitutionally and legislatively on 29 March. I would like the Minister to take that back to the rest of the Government Front Bench, and a Statement to the House on how we should manage this from now on would, I think, be appropriate.

[Lord Ashton of Hyde]

I thank the noble Lord for his view. It is clearly not for me to promise a Statement to the House. As I said before, I will agree to take back what he said and put both interventions to the House authorities. They may or may not agree. If they do not, I am sure that he will be able to raise it in an appropriate forum direct with the usual channels—both via his own Chief Whip and also directly with the Leader of the House and our Chief Whip. However, it is not appropriate, in considering an SI, to move beyond that to the wider method used by the House to address statutory instruments. Ministers certainly feel that they have been scrutinised considerably. I do not see that the noble Lord, or others who have spoken on this, are suffering from a lack of information with which to scrutinise these statutory instruments; they seem to be scrutinising fairly effectively as far as I can tell.

My response to the point made by the noble Lord, Lord Adonis, about the effect of representatives on business, is that the need to have a representative in the EEA is not as a result of this statutory instrument—it is as a result of EU law. Therefore, as I said before, the fact that we will no longer be part of the EU means that EU law will apply to us as a third country; until now, we have not been a third country.

[Lord Adonis]

I seem to have misunderstood. I thought we had got clarity on this situation. While we are a member of the EU, a company needs to have only one representative in the EU—if I have got that right—whereas under the no-deal Brexit scenario, if the company is based in the UK and does business involving data exchanges or transfer in the EEA, it will need to have two. That is a very important point. It is not the case that the status quo will continue: there will be a fundamental difference once we are outside, because then we will be a third country as far as the EU is concerned. The reciprocal arrangements mean that UK businesses doing business on the continent will need to have a data representative in the EU and vice versa, which is not the case at the moment in respect of the EEA. Is that correct?

[Lord Ashton of Hyde]

I do not think that is correct, but I will write to the noble Lord to confirm it.

[Lord Adonis]

This is a fundamental issue; it goes to the heart of these regulations. The House should absolutely not agree to these regulations without us being clear in this debate on whether there will be a requirement to have data representatives in both the UK and the EEA reciprocally in the event of a no-deal Brexit. That is fundamental. My reading of these regulations is that this will be a requirement and that is what I took the noble Lord to be confirming earlier in the debate.

[Lord Ashton of Hyde]

I think the noble Lord has mis-stated it. The reciprocity is that an EEA company will be required to have a representative in the UK and, likewise, a UK company will be required to have a representative in the EEA.

[Lord Adonis]

That is not the case at the moment, while we are in the European Union. That is the key point, is it not?

[Lord Ashton of Hyde]

That is correct, because we are currently in the EU.

[Lord Adonis]

There will be a fundamental and massive increase in burdens as a result; this is the key point that I am trying to get across, which is not in the Explanatory Memorandum at all. It is not necessarily a point about leaving the EU. If we have an agreement, with an implementation period and so on, there will not be that requirement until we leave the existing regime. These are fundamental issues, which should have been brought up well before this debate started. The fact that the noble Lord cannot even definitively confirm the arrangement is quite a serious problem for us.

[Lord Ashton of Hyde]

I am sorry, but I do not agree with the noble Lord. When we have the UK GDPR, which these regulations will bring into place, there will be reciprocity in the need to have representatives in each other’s countries. I agree that this will be a change. We do not need them at the moment because we are in the EU, but this will be a result of leaving the EU.

[Baroness Kramer]

I want to get some clarity on this and perhaps the Minister will be able to help me. He is quite clear that, for a wide variety of companies, there will need to be one representative in the UK and, he seems to imply, one representative in the EEA. Is that correct, or does there need to be one in each country within the EEA—or does the individual in the EEA have to deal with different regimes because of the different local regulators and because it is representing a third country in its work? I am trying to work out how great the burden that he has indicated will be, even though he does not think that it will be part of the impact.

[Baroness Ludford]

Before the Minister answers, I would like to press again this idea that an impact assessment is not needed since the impact comes from leaving. I say no to that; it depends how you leave. The Minister and I may differ on the desirability of the Prime Minister’s deal, whatever that is going to be, but there is a difference between crashing out and having a transition with a political declaration which may avoid the need for duplication; we do not know what the data protection provisions will be in the future relationships. We all hope that there will be a strong degree of mutual recognition, but the immediate impact of crashing out with no deal—with a void where any adequacy decision or future reciprocal relationship between regulators would otherwise be—is quite different. First, it is different from having a standstill transition and, secondly, it is different from having the prospect, or at least the hope, of a long-term relationship that preserves something of the single market. We need the impact assessment to assess the difference between those two scenarios; that is what the Minister does not seem to grasp.

[Lord Ashton of Hyde]

I agree with the noble Baroness that, if we leave with a deal, that is a different scenario from leaving with no deal. That seems an obvious fact and it is why the Government are trying to leave with a deal, which is what the Prime Minister is trying to achieve. This is a no-deal exit SI to prepare for that eventuality. If we leave with no deal, the object of the exercise will be to preserve the GDPR standard of data protection, which this SI will do. To return to the point raised by the noble Lord, Lord Adonis—sorry, it might have been raised by the noble Baroness, Lady Kramer—the requirement to appoint one representative in the EEA is, as I said, a result of EU law.

I say again to the noble Lord, Lord Adonis, regarding the impact on business of Article 27, that we think that if controllers based abroad are routinely processing the data of people in the UK then it is right that they should be accountable and have a presence in the UK, because it is about trying to maintain the status quo as far as possible for individuals and not rolling back their data protection. The representative is a point of contact for the data subject as well as supervisory authorities such as the Information Commissioner.

I turn to the points made by the noble Lord, Lord McNally, about the complexity for organisations potentially subject to dual regulation. The point of this instrument was to ensure the minimum disruption to organisations and to data subjects by trying to retain the effect of the data protection legislation where possible. The relationship is absolutely changing but the instrument ensures that we can co-operate on an international level with not only the EU supervisory authorities but those in other countries; that is why we have kept Article 50 of the GDPR. Where he is right, and I accept that he is right in this, is that if we move away from the GDPR—if the UK GDPR moves away from the EU GDPR—that will have consequences for the adequacy decision that we hope to achieve, which will be reviewed by the EU Commission. It is important that the EU has confidence that our data protection regime is “essentially equivalent”, which is what the adequacy decision is based on. Anything that we do in future will have to bear in mind that our data regime is essentially equivalent so that it gives the EU confidence.

I agree with the noble Baroness, Lady Ludford, that in previous times there were elements that were outside EU competence that it could not look at, but now of course in an adequacy decision it will be able to look at those. Again, as it does in other adequacy decisions, it will look at the overall adequacy requirement and say whether or not it is essentially equivalent. That is why the adequacy decision is not immediate. Where we start in a good place compared to other regimes is that we have started with an equivalent regime to the extent that we have enacted the GDPR, which other third countries have not. We start on a level playing field in that respect.

The noble Baroness talked about the US privacy shield and the reason why we are going to lay another set of regulations. The discussions on the US privacy shield were ongoing when this SI was laid and therefore we could not wait. It was our priority to lay this SI so that we had an ongoing regime in the event of no deal. Now that that has been agreed between us and the US, though, another SI will be laid—it may even have been laid—to ensure that the US requirements continue, and I think that will happen very soon.

The noble Baroness asked about the EDPB’s recently published guidance on the implications of the UK’s exit. That guidance confirmed that, if the EU Commission does not make an adequacy decision in respect of the UK, EU firms will need to put in place alternative transfer mechanisms, such as standard contractual clauses to continue to transfer personal data to the UK.

The noble Baroness suggested that the political declaration only covered adequacy. That is not right: paragraph 9 addresses the free flow of data while paragraph 10 addresses regulatory co-operation.

The noble Lord, Lord Adonis, and the noble Baroness, Lady Ludford, talked about consultation. The difference between this SI and many others is that the Data Protection Act came into force less than a year ago; it was enacted after extensive discussions in this House and the other place, after the referendum discussion had taken place. Those noble Lords who participated in the Data Protection Act discussions, which lasted for many weeks, all know that matters such as data adequacy were raised numerous times. The whole purpose of the Act, and the mixture between regulations and derogations from regulations, was that we would be on as level a playing field as we could be when it came to getting an adequacy decision.

--- Later in debate ---

[Baroness Ludford]

Forgive me, but I would like to follow up on that. I really think the Minister is overselling what is in paragraph 9 of the political declaration. Last June, the Government issued a technical note about wanting a legally binding data protection agreement, and I described that earlier as a “Brexit in name only” kind of arrangement. They wanted that because there are,

“benefits that a standard Adequacy Decision cannot provide”.

Except for one sentence in paragraph 10 that talks about arrangements for appropriate co-operation between regulators, paragraph 9 is about a standard adequacy decision—no less but certainly no more. It talks about the European Commission recognising,

“a third country’s data protection standards as providing an adequate level of protection”.

It is not what the Government hoped for last June. I do not understand why the Government are trying to pretend. We can all read paragraph 9 once we have googled it and reminded ourselves, so to say that it is more than an adequacy assessment process is simply not true.

[Lord Ashton of Hyde]

I understand the point from the noble Lord, Lord McNally, that our new position will not be the same as being in the EU. If we were a third country, I would expect us to have less influence than if we were a member of the EU. I am not denying that; it seems obvious. He is absolutely right that the GDPR was influenced by the UK, not only by officials in the negotiations but specifically by the ICO, which is regarded as one of the leading regulators in Europe. Of course, it will not have the same position as it did if we are not in the EU; I take that point.

However, I do not base everything on just the political declaration, which may or may not have some influence. It is also that we have retained Article 50 of the GDPR. I cannot remember the exact words, but it is on the basis of that that the EU talks about international co-operation with third countries, so there is a mechanism. As I said to the noble Lord, Lord McNally, it will not be the same, but there are bases for international co-operation. The EU wants that to happen and understands that in things such as data protection, you have to have an international consensus. In fact, on that, it is more important to go beyond the EU and do it internationally. Other organisations should—and do—take views on this. I think we are at the start of the journey on control of cross-border data flows and it will provide a further basis to influence behaviour.

On adequacy, it is easy to ask for detailed timelines on when this will take place. It will not take place on exit day, because it is not possible for the EU to give an adequacy decision unless you are a third country. Preliminary discussions—which, as the noble Baroness, Lady Ludford, has indicated, may take some time—could begin now and we are ready to begin those discussions as soon as we can. We are already liaising with the European Commission—in fact, senior officials were in Brussels for talks last week—and we have liaised with member states on this subject. When the EU is ready to begin discussions, we are confident that we will be ready, but it is impossible to say how long that will take because, as the noble Baroness said, it is not a decision that is in our gift.

However, we start from a position of regulatory alignment on data protection. We implemented the GDPR and the law enforcement directive. We have also taken a GDPR approach on data protection to areas that were outside EU competence, such as law enforcement and national security, so we start in a very good position. In fact, it is such a good position that the UN special rapporteur on the right to privacy declared that the UK now co-leads in Europe and globally on privacy safeguards, and has made significant improvements in its oversight system since 2015. He said that,

“the UK has now equipped itself with a legal framework and significant resources designed to protect privacy without compromising security”.

It is important to note that there is a strong mutual interest in data adequacy.

The noble Lord, Lord Adonis, said that it is unsafe to pass this SI. I would like to point out what that would mean, if it is not passed and we have a no-deal exit. It would mean that we would cease to have properly functioning data protection law. The whole basis for adequacy decisions, which I think we all agree is very important, would go, because we would not be on a reciprocal basis—

[Lord Adonis]

Would the noble Lord agree that a better course would be for the Government to rule out no deal?

[Lord Ashton of Hyde]

I am talking about data protection. We want a deal; I think everyone agrees on that. The question is whether going into a negotiation saying that is a good way to approach the negotiation.

As well as the basis for adequacy going, there would be no transitional arrangements to enable lawful personal data to transfer to the EEA. The noble Lord, Lord Adonis, is concerned about business expenses; for that reason, that would not be a sensible way of going forward.

On the adequacy decision which my honourable friend Margot James mentioned, I do not have her remarks before me, but I believe she said something about two years. I think what she meant was that other countries’ adequacy decisions have sometimes taken two years, but we see no reason for it to take two years in the UK’s case, because, as I said, we are equivalent. I think I have answered most of the points that noble Lords raised.

[Lord Wallace of Saltaire]

I apologise for interrupting the Minister again. He said we are now undertaking “preliminary discussions” about how this would be handled if we leave without a deal, but that these discussions “may take some time”—I think I heard him say that. Is he suggesting that, if we leave without a deal on 29 March, there will be an unavoidable gap in mutual recognition of data protection law, which we—or rather businesses—will have to cope with somehow? That may have a significant adverse impact.

[Lord Ashton of Hyde]

Yes, because it is literally impossible to have an adequacy decision until you are a third country. Therefore, you cannot have an adequacy decision in advance. What you can do, and I should have said preliminarily that we have been discussing this—I raised it over a year ago—is start the discussions with the EU, but the decision itself cannot be made before exit day. It is impossible.

[Lord Wallace of Saltaire]

There would be a significant adverse impact.

[Lord Ashton of Hyde]

There are mitigations which prevent that—standard contractual clauses and binding corporate rules. Plus, it depends a lot on the proportionate approach that the regulators in the EU take. There would be an impact; we would have to arrange mitigations, which would be a cost to business. That is what has been set out in the technical notice to business.

[Baroness Ludford]

The Minister is making a very good case for why there should have been an impact assessment.

[Lord Ashton of Hyde]

I am making a very good case for why we want a deal. As I have said several times, we want a deal.

I think I have been through most of the questions raised by noble Lords. The important thing about this statutory instrument is to have a fully functioning data protection regime. If we go back to the original reasons why we passed the Data Protection 2018 with a fair bit—a lot, I would say—of cross-party support, the reason that it is important is to give individuals protection for their personal data. We must bear that in mind. These regulations will preserve that protection for individuals and set us on the road to a successful conclusion of our adequacy agreement when we get to the stage where the EU will allow us to negotiate it. That is why I beg to move.

Motion agreed.

Mobile Roaming Charges

Lord Ashton of Hyde Excerpts

Thursday 7th February 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer to an Urgent Question in another place. The Statement is as follows:

“Delivering a negotiated deal with the EU remains the Government’s top priority. This has not changed. However, I am sure the House will agree that we must prepare for every eventuality, including a no-deal scenario. We have taken a number of steps as a Government, working with businesses, consumers and the devolved Administrations, to make sure that we deliver the best possible outcome for mobile users in the event of no deal.

The Government will legislate to make sure that the requirements on mobile operators to apply a financial limit on mobile data usage while abroad is retained in UK law. The limit would be set at £45 for each monthly billing period, which is the same limit as the one currently in place. We will also legislate to ensure that customers receive alerts at 80% and 100% of data usage. These measures would mean clarity and certainty for consumers and would make sure that they are able to plan their spending and usage accordingly.

I know that there is also concern on the island of Ireland, and in some other areas, about the issue of inadvertent roaming. This is when a mobile signal in a border region is stronger from the country across the border. So, the Government also intend to retain through UK law the EU roaming regulation provisions that set out how operators must make information available to their customers on how to avoid inadvertent roaming.

The Government are working hard to make sure that everyone is prepared and ready for all outcomes. I encourage all businesses to read our technical notice on mobile roaming in the event of leaving without a deal, which we published last summer. This is one of 106 technical notices to help businesses understand what they would need to do in a no-deal scenario so that they can make informed plans and preparations.

However, we should be clear that surcharge-free roaming for UK customers may continue across the EU as it does now, based on operators’ commercial arrangements. Leaving without a deal would not prevent UK mobile operators making and honouring commercial arrangements with mobile operators in the EU—and beyond the EU—to deliver the services their customers expect, including roaming arrangements. The availability and pricing of mobile roaming in the EU would be a commercial question for the mobile operators. However, many mobile operators, including Three, EE, O2 and Vodafone, which cover more than 85% of mobile subscribers, have already said that they have no current plans to change their approach to mobile roaming after the UK leaves the EU.

I hope that the steps I have set out will reassure the House that as a Government we are committed to a smooth and orderly transition as we leave the EU. In our telecoms sector, just as in all sectors, we are putting the right plans in place for all outcomes as we leave. That is the role of a responsible Government and that is what we will continue to do”.

[Baroness Smith of Basildon (Lab)]

Well, my Lords, that sounds extraordinarily complacent and very much, “Not me, guv”. Has the Minister seen the report on the Huffington Post UK website about proposals from his department that pave the way for major increases to mobile phone bills for UK citizens travelling in Europe post Brexit? Our businesses, manufacturing firms, struggling SMEs and new start-ups are already having to prepare for how they will do business in Europe post Brexit. This will be a bitter blow for those companies marketing their products or looking for investment in the EU.

Is this not just another cost to British businesses from the Government’s mishandling of Brexit? In effect, it is a trade tax. Given the similar proposals in the statutory instrument on credit cards forcing higher charges on UK businesses, does the Minister really understand the impact that this double whammy is going to have on UK enterprise? Will he commit today, in the interests of UK plc, to withdraw both of these orders and think again?

[Lord Ashton of Hyde]

My Lords, I think that there may be some misunderstanding about this. The Huffington Post commented on an SI that was laid which is a no-deal SI. The best way that noble Lords and Members of the other place can prevent these changes happening is to agree a deal. However, if there is no deal we have to face the inevitable consequences of that. A lot of the issues that have arisen not only with this subject but with other SIs stem from not distinguishing between the effect of the SI itself and the effect of leaving the EU. In this case, it is not fair to say that we have not prepared for that. In fact, the technical notice that outlined all these considerations was issued in September. It is not a question of simply withdrawing the instrument; if we are no longer in the EU, we will not be able to prevent EU operators increasing charges to UK operators. They will then have to accept those higher charges, which inevitably will be passed on to consumers. The issue is that if we leave the EU we will not be able to participate in the harmonised wholesale roaming prices, so I do not accept the analysis of the noble Baroness. That is why it is not possible to withdraw the SI, if we are acting responsibly in the event of no deal.

[Baroness Ludford (LD)]

My Lords, the best way to avoid these changes is of course no Brexit. Surely the Minister will agree that the slashing of mobile roaming charges in the EU is one of the biggest successes for British consumers, travellers and businesses. British Ministers and MEPs played a big part in this triumph to stop rip-offs and nasty surprises on bills. Now the Government intend to steal this benefit from British citizens, even though they think it likely that costs will be passed on to consumers through the choice they have made. Why have the Government chosen—and it is a choice—not to impose a retail roaming price cap? Is this deregulation policy a foretaste of the Government’s intentions in other sectors? What estimate have the Government made of the total extra costs for a British holidaymaker arising from the reintroduction of roaming charges, the loss of the EHIC card, likely increases in the cost of travel insurance and EU fees for a visa-lite? Should the Government not put this choice back to the British people so that they can decide whether they want to Brexit at all?

[Lord Ashton of Hyde]

I do agree with the noble Baroness on one thing: this has been a great benefit since it was introduced 18 months ago. Of course, it did not exist until then. When we decided to leave, there were inevitable consequences. What I do not understand from her question is how she thinks, within the powers available to the UK, we could do something different. If we set a retail price cap, UK operators will have to accept all the increased charges and as sure as anything, those will have to be passed on to all consumers. The difference is that she would penalise all consumers, while this measure affects only those who roam in the EU.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I think it fair to say that over many years, British MEPs were involved in this progress for the consumer. It is one of the great benefits we got—however else people might feel about this—from our membership of the European Union and the work that was done in the European Parliament. I know there are some restrictions on what my noble friend can do. However, great powers are available to the Government in their dealings with the telecommunications companies—most of which are international, based not just in Europe but here in this country—to make it clear that we do not expect them to penalise those who have these hard-fought-for benefits, to make up for which other allowances have been made to the telecommunications companies.

[Lord Ashton of Hyde]

I agree with my noble friend, and that is why we are retaining in UK law the requirement for them to notify their customers about the amount they spend on roaming per month at the same limit expressed in pounds sterling as is currently available, putting into law that they have to notify their customers when they reach 80% and 100% of their data usage and requiring them to take reasonable steps to prevent inadvertent roaming. We understand that they have responsibilities and that it is a consumer benefit, but that is why we are doing that. We have had constructive discussions with the telecoms industry. Partly because of the competition environment in this country, unlike in some others, consumers have a choice. At the moment, as I said, those that cover 85% have said that, despite the changes that would happen in a no-deal Brexit, they have no plans to increase. They will accept the increased costs while they can.

[Lord Rooker (Lab)]

My Lords, as my noble friend on the Front Bench said, this is exactly analogous to what is in a statutory instrument waiting somewhere in this House on credit card use outside the UK. When that issue came before sifting committee B a few weeks ago, we noticed that the restrictions on charges were only for UK use. Our advisers had already been back to the Government to check why this was the case. We were told it was a conscious decision by the Treasury to allow extra charges on UK citizens using their credit cards in Europe. In other words, it could be stopped. This is exactly the same situation, and it is not good enough for the Minister to say, “Oh well, we will see competition”. The fact of the matter is that the idea was to transfer EU law for our citizens to be exactly the same on 30 March as on 29 March. In this case, it is not. We are deliberately allowing people to be ripped off, and it is a conscious decision by the Government. We were informed of that, and in due course we will get the chance to debate the credit card issue.

[Lord Ashton of Hyde]

First of all, I point out that this did not appear at the sifting committee, because we made the conscious choice to allow this to be an affirmative SI when it could have been a negative one, so we are not trying to evade—

[A noble Lord]

Very generous.

[Lord Ashton of Hyde]

I am glad the noble Lord, from a sedentary position, admits we have been generous on that. I have not noticed a lack of scrutiny from him on other SIs. Moving on, it is not true to say that this is a conscious choice to penalise consumers. If we are not able to participate in the EU harmonisation of wholesale prices, there are inevitable consequences of that. This SI therefore tries to retain the benefits for consumers that are able to be put into UK law, which we are doing, bearing in mind that we will no longer be part of the EU single market.

[Lord Hain (Lab)]

My Lords, surely the Minister could agree that “no plans to”—his words—is not the same as a guarantee. In the EU we have a guarantee of no additional data roaming charges or voice roaming charges outside our bundle. He is not providing any guarantee at all, and it is about time he did.

[Lord Ashton of Hyde]

That is based on a fundamental misunderstanding of the position. Currently, we have a guarantee because we are part of the EU single market. If we leave the EU single market, which is what this SI is about, we will not be able to provide that guarantee. Therefore, I am incapable of giving the noble Lord the guarantee that he asks for. We have been completely open about that. That is why I said that the four companies have no plans for increases. Of course there is no guarantee about that, and we would not be in a position to command it if we are not in the EU. The issue is not about the SI but about the consequences of leaving the EU.

Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019

Lord Ashton of Hyde Excerpts

Thursday 7th February 2019 Lords Chamber

Moved by

[Lord Ashton of Hyde]

That the draft Regulations laid before the House on 29 November 2018 be approved. Debated in Grand Committee on 23 January.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde (Con))]

My Lords, I thank noble Lords for their contributions to the extensive debate in Grand Committee on Wednesday 23 January. I committed then to provide further information concerning the engagement with stakeholders that had occurred, especially with the UK Competitive Telecommunications Association. I wrote to all noble Lords who participated in the debate and placed a copy in the Library on 29 January. I hope that that was acceptable to noble Lords and I beg to move.

[Lord Foster of Bath (LD)]

My Lords, we had a full debate in Grand Committee on this statutory instrument last week and I place on record my gratitude to the Minister for the comprehensive letter that he sent to many of us following our deliberations on that occasion. I am sure that it will be a great pleasure to the Minister to know that I do not intend to revisit all the points that I raised on that occasion, with the exception of one, which is very important.

A general point has been occupying and concerning Members of your Lordships’ House in relation to our leaving the European Union, not least during a debate on 30 January on the Trade Bill. There was much discussion about the vital importance, following our exit from the European Union, of remaining as close as we possibly can to all the various organisations within the European Union that determine the rules on which trade between the UK and the European Union will depend.

The Minister will be well aware that, in relation to the specific business and trading arrangements that will occur between the UK and the EU, with this instrument we are talking about the broadband and telecoms industries. I note with great interest, in the light of the debate that we have just had on roaming charges, what the Government said in their technical notice issued on 13 September last year, which stated that,

“irrespective of the outcome of the negotiations between the UK and the EU, we do not expect there to be significant impacts on how businesses operate under the telecoms regulatory framework and how consumers of telecoms services are protected”.

But we have just heard in relation to roaming charges that that simply does not stack up and that there will be serious implications for our telecoms and broadband sectors. They are very important to the economy of this country. For instance, telecoms has revenues of something like £40 billion. There are going to be significant impacts.

The Minister was very clear in relation to roaming charges that because we are leaving the European Union we cannot participate in harmonised roaming arrangements. We have to accept that we have to face the consequences of a no-deal situation. I suggest to the Minister that there is one area in which we could try to do what we can to mitigate some of the consequences that will occur following exit, in relation to the way in which we seek to participate in the very body that will determine the rules under which our telecoms and broadband organisations will have to operate. As the Minister well knows, as we have debated this on many occasions, that body is BEREC. It brings together all the relevant regulators, including our highly regarded UK regulator Ofcom, to discuss all the rules that will affect everybody.

The House will be well aware that very recently the European Union introduced the new Electronic Communications Code, which will have a significant bearing on how all the industries throughout the 27 and within the UK operate in future. In future there will be further changes to those rules, and it is therefore very important that we do everything in our power to remain involved. I accept that there will not be the opportunity to be a full member with voting rights, but it is important that we remain as close to BEREC as possible. That view is shared by many organisations, not least Ofcom. It has pointed out that in future BEREC will be hugely influential in, for instance, changes to the European Electronic Communications Code, and in any new guidelines on international roaming, net neutrality and many other issues. It said:

“Even if the UK is not bound to follow EU laws, the approach taken at EU level on these issues will continue to be relevant to the UK and to many of the companies we regulate, many of whom also have operations in other EU countries or are subsidiaries of international telecoms groups that have substantial operations in other countries”.


It gives the examples of Telefónica, Three, Virgin Media and Vodafone, and goes on to say:

“There are also more general benefits from participation in EU networks since they provide a forum in which we can cultivate and sustain bilateral relationships with our EU peers, at both senior and working levels, to exchange experiences and share best practices”.


It is clear that Ofcom believes it is important to remain as close as it can to BEREC. I believe it is important for our telecoms and broadband industries in the UK, and I am delighted that the Government seem to share that view: in the other place on 7 January the Minister, Margot James, said that,

“the Government recognise that Ofcom would benefit from the continued exchange of best practice with other regulators, and from the exchange of information about telecoms matters more generally”.—[Official Report, Commons, Delegated Legislation Committee, 7/1/19; col. 6.]

Given that we are all agreed, the question is: how is that going to be achieved? When we debated this in the Moses Room, the Minister said very clearly that he was confident that, because Ofcom is such a highly regarded regulator, BEFEC would be very keen to involve it. One would hope that that would be the case.

However, the Minister is also aware that he is part of a Government who have signed up to the withdrawal agreement, which contains within it at Article 128 a very clear statement that our bodies and expert groups, such as Ofcom, will not be able to participate in gatherings such as BEREC. It is clear that they cannot do that, or can do so only in certain circumstances—I suspect the Minister is about to get up and give the exceptions; if he wants to do so rather than me, I am happy to give way.

[Lord Ashton of Hyde]

That is kind of the noble Lord. Is he aware that this is a no-deal SI and that therefore the withdrawal agreement does not apply?

[Lord Foster of Bath]

I absolutely accept that; my point is that we need to look at the attitude of the Government towards their relationship with bodies such as BEREC. If, even without a no-deal situation—that is, even within the withdrawal agreement, where it is hoped there will be a deal—the Government are supporting a mechanism that they have written themselves, which makes it difficult for Ofcom to be involved in BEREC, then we should have some real concern.

I have drawn attention—I will not repeat the detail in your Lordships’ House now—to how Article 128 makes it difficult for Ofcom to be involved in BEREC. During the debate on the Trade Bill, the Minister concerned gave a very different interpretation of that situation. He made it clear that he thinks it will be perfectly possible for Ofcom to be involved. I challenged that Minister, the noble Lord, Lord Bates, on whether he agreed with my interpretation or with that of his noble friend. I was somewhat surprised by the answer he gave. He said:

“The noble Lord, Lord Foster of Bath, made an interesting point about the reputation of Ofcom, which of course we all recognise as a world-leading authority. He then offered me a pretty difficult choice of choosing between his persuasive speech and the words uttered in Committee by my colleague in government, my noble friend Lord Ashton of Hyde. Given that I speak from the Government Benches, I am afraid that I must side with my noble friend Lord Ashton in this regard”.—[Official Report, 30/1/19; col. 1156.]


So two Ministers now have disagreed with my interpretation of whether we will be able to participate closely with BEREC. I end with a simple question for the Minister today: will he give a clear assurance that, in the event of no deal, it will be the Government’s intention to take all necessary steps to ensure the maximum co-operation between Ofcom and BEREC?

--- Later in debate ---

[Lord Pannick]

I share the noble Lord’s concern. It is all very puzzling. That agreement is of course a premise that contradicts the premise of these regulations. As the noble Lord says, these regulations are entirely on the premise that there is no agreement. What is puzzling is that if there is an agreement, the circumstances in which Ofcom would be able to participate in BEREC appear to be very restrictive indeed. There is therefore real concern that, in the event of no agreement, it might be said by BEREC that the circumstances in which Ofcom could participate could not be greater than the circumstances if there were an agreement. That is why I ask the Minister to confirm that it is the Government’s intention that Ofcom should be able to participate, which is obviously sensible and desirable for everybody. Has there been any discussion with our European colleagues on whether that can and will be secured in the event of no deal?

[Lord Ashton of Hyde]

My Lords, I thank noble Lords for their questions and comments. If I may, I will restrict myself to the matters which pertain to this SI which, as the noble Lord, Lord Pannick, has just outlined, is a no-deal SI. I thank noble Lords, especially the noble Lord, Lord Griffiths, and my noble friend Lady Neville-Rolfe for their comments—I omitted to thank my noble friend for supporting me last night and I am glad she is doing so again, despite that.

It is worth touching briefly on the issue raised by the noble Lord, Lord Foster. He said in Grand Committee that he expected to raise this again, so I thank him for that warning. He has quoted me a number of times, referring to what I and my honourable friend the Minister have said, and alluded that there was a problem between us. There is not. He neglected to mention that in Grand Committee, I also said that Ofcom,

“does not have the right to do these things”.

We were talking about membership of BEREC and attending meetings. I continued:

“That is not surprising, because we are leaving the EU. Why should it have the right?”—[Official Report, 23/1/19; col. GC 97.]


I made the point that as we leave the EU, there is no right to do that. However, that does not mean that we would not wish to pursue this, so let me address the points the noble Lord made about the potential difficulties.

The main purpose of BEREC is to ensure the consistent implementation of the EU regulatory framework. That is significant, not least in influencing the development of EU soft law. On the UK’s position, it is true that Ofcom has been a member of BEREC since 2010, and has been actively involved in that time. It is a well-respected, national regulatory authority. As I said, on leaving the EU—which is what we are dealing with here—it will not be possible for Ofcom to retain its membership automatically. That is right, as we will not participate in the EU regulatory framework. In the event of no deal, Ofcom’s ability to participate will be governed by the BEREC regulations themselves, as the noble Lord, Lord Foster, said.

The new BEREC regulation provides that BEREC should be open to the participation of regulatory authorities from third countries, where those countries have entered into agreements with the EU to that effect. There has to be a bilateral agreement, as I said, but that agreement need concern only the observer status of BEREC; it does not have to be a future economic framework, or a data adequacy agreement. The noble Lords, Lord Pannick and Lord Foster, asked whether we have done anything to ensure that. They also asked about our future intentions on trying to become an observer of BEREC. We are doing what Switzerland, which is in a similar position to us, is doing. Ofcom has already had conversations with BEREC; it is keen to have observer status and the Government encourage that. We will have to see how that develops.

The questions the noble Lord, Lord Foster, raised about Article 128 of the withdrawal agreement do not pertain to this. However, if they do, that will be in the context of a deal and that is the best way of encouraging co-operation. We want to get a deal and I hope that we do. The Government encourage Ofcom in its attempt to be an observer. As I said in Grand Committee, we think it would be of mutual benefit and that it would be of benefit to BEREC, apart from anything else; we encourage Ofcom in its endeavours.

Motion agreed.

Social Media: Online Anonymity

Lord Ashton of Hyde Excerpts

Wednesday 6th February 2019 Lords Chamber

[Lord Kennedy of Southwark]

To ask Her Majesty’s Government what steps they are taking, or intend to take, to deal with online abuse by people using anonymous social media accounts.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, online anonymity is an important part of a free and open internet—but being anonymous online does not give anyone the right to abuse others. The Government have made it clear that more needs to be done to tackle all kinds of online abuse. We will publish a joint DCMS-Home Office White Paper this winter, setting out a range of legislative and non-legislative measures and establishing clear standards for tech companies to help keep UK citizens safe.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, does the Minister accept and understand the huge concern of law-abiding citizens that people are hiding behind anonymous accounts and making threats to kill, to rape, to assault and to bully, using racist, anti-Semitic and Islamophobic language? The platforms that host these people have done nowhere near enough to deal with this problem. If they will not get their own house in order, the Government must make them, through legislation. Will the Minister impress on his colleagues in government that the forthcoming White Paper must make that clear to them?

[Lord Ashton of Hyde]

I am happy to be able to agree with the noble Lord. Let us be clear: when abuse exceeds the threshold and moves into criminality, in most cases so-called anonymous perpetrators are actually traceable, so they can be prosecuted according to the law. I recognise the public disquiet about this, and, as the noble Lord said, we are considering what more can be done, by non-legislative means but also, when required, by legislation—and there will be legislation. We will consider what to do about anonymous abuse specifically, and we will address that in the online harms White Paper, which, as I said, is due out this winter.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend recall that we got a dramatic improvement in attitudes towards health and safety when we made the directors of the company personally liable for it? Should we not do the same for internet service providers?

--- Later in debate ---

[Lord Ashton of Hyde]

One of the things we are considering is a duty of care. That might include holding directors personally responsible. We have not decided that yet, but it is certainly an idea worth considering. As it is a White Paper that is coming out this winter, there will be a consultation on it, so we welcome views from my noble friend.

[Lord Clement-Jones (LD)]

My Lords, the Law Commission, in its scoping report last November into abusive and online communications, said that one of the key barriers to the pursuit of online defenders was,

“tracing and proving the identity of perpetrators, and the cost of doing so”.

I heard what the Minister said about the White Paper’s contents, but will the Government include a provision allowing the stripping of anonymity in circumstances of online crime? Have the Government had any discussions with the police or other enforcement agencies to understand the issues they face in tracking these perpetrators and bringing them to justice?

[Lord Ashton of Hyde]

It is certainly something worth considering in the White Paper, but as far as dealing with the police is concerned, the Home Office is working with policing to identify ways to tackle this when it goes over the threshold into criminality. These are relatively new crimes; the police will have to evolve methods to deal with them. We have also worked with the office of the Director of Public Prosecutions. There is a digital intelligence investigation programme, aiming to ensure policing has the ability to investigate the digital elements of all crime types. Also, the Home Office is working with the College of Policing to drive improvements in overall police capability to investigate and prosecute online offences.

[Lord Campbell-Savours (Lab)]

My Lords, going back to the Minster’s original response, in what sense does he believe anonymity helps freedom of speech?

[Lord Ashton of Hyde]

If, for example, you are in an authoritarian regime—

[Lord Campbell-Savours]

We are not.

[Lord Ashton of Hyde]

I said “if”—we do not think only about this country. That is one example. If you are a 15 year-old girl who is being abused, being able to go on to the internet to ask for health advice or let people know about it is an example of where anonymity can sometimes help.

[Baroness Fall (Con)]

My Lords, our children grow up in a world that is under huge pressure from social media. They never get a day, or, indeed, a night off. This is a world where no one seems to take accountability or responsibility for what is said at all. While we all argue among ourselves about what to do, I urge the Minister and those drawing up the White Paper to start with the simple but powerful principle of transparency. We should not allow people to hide behind the veil of anonymity.

[Lord Ashton of Hyde]

As I said, sometimes anonymity is the right thing, but I take on board what my noble friend says. We definitely believe that tech and social media companies need to take more responsibility. We have said that. The Secretary of State plans to visit them to outline some of the measures we propose to take. There is absolutely no doubt that there is general feeling in the public that something needs to be done to control these large social media companies. People have to take responsibility. We will make sure that that happens, with legislation if necessary.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, will the Minister get a copy of the speech made today by Tom Watson, the deputy leader of the Labour Party, on this subject, and consider each of his proposals carefully?

[Lord Ashton of Hyde]

As I said earlier, this is a White Paper and we are having a consultation. We certainly welcome views from everyone. I will make sure that the letter is looked at in the department—I probably will not even have to tell them to do that. However, we are trying to build a consensus. We have to take into account libertarian views, the need to preserve innovation for tech companies—which is so useful to our economy—and to protect vulnerable people, especially children.

[Lord Hogan-Howe (CB)]

My Lords, could we return to the issue of policing resources, which was alluded to earlier? There are two areas which have serious concerns for the police and also, therefore, perhaps for the Government. One is the recovery of digital evidence, which has already proved challenging in rape cases and other sexual offences where mobile phones have to be examined in great detail. The second point is that this is a people process as well as a hardware process. Both require lots of people, and at the moment, this explosion of criminal offences means that it is demanding an awful lot of people and cost at a time when police numbers are dropping. It is something that the Government have to consider seriously.

[Lord Ashton of Hyde]

Regarding the first part of the noble Lord’s question, we are supporting the Digital Public Contact, which will deliver a single online home for policing and provide a secure digital channel for the public to upload evidential material in a digital format. I have explained what we are doing with the College of Policing.

As for the second part of the noble Lord’s question, my noble friend the Home Office Minister is sitting next to me and I am sure has listened to his point.

[Lord Hunt of Kings Heath (Lab)]

My Lords, are the Government really prepared to take these companies on? I pray in aid the Government’s approach to getting them to pay proper tax in this country. Despite the huffing and puffing we have heard from the Chancellor, no action has been taken. Can the Minister assure me that the Government are prepared to take them on?

[Lord Ashton of Hyde]

In the area that we are responsible for, regarding online harms and safety, we are. As far as tax is concerned, that is a different matter and I do not have the responsibility for it. However, I am sure that the Chancellor will listen to the noble Lord’s views.