Data Protection Bill [HL]

Lord Falconer of Thoroton Excerpts

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I have been proud to support the completion of the Leveson public inquiry, not just for the benefit of past victims, including my family, but mainly to prevent future victimisation. I make it quite clear that although I am disappointed, I reluctantly accept the decision of the other place that it does not wish to proceed with and complete a public inquiry. However, some of the misrepresentations about my amendment that were made in the other place were quite disappointing, and some speakers remained in denial about the continuing bad behaviour of some elements of the national media. So, to my surprise, since last week’s vote I have been approached by some Members from the other place who voted with the Government, to ask me not to give up.

Some noble Lords believe that my amendments have secured real progress in holding the press to account through the new government amendments. I have a more guarded response. I am very interested in the amendment in the name of the noble Lord, Lord McNally. It would prevent state interference in press regulation and appoint a truly independent reviewer, and would restore the place of the Press Recognition Panel—the PRP—without the Government directing it. I look forward to due consideration by the Minister of that suggestion.

What people want is an apology and a promise that it will not happen again. As a victim, a mother, a grandmother and a psychiatrist, I try to put people first. Instead, it seems that the focus is on money, with promises that the media will engage with IPSO’s low-cost arbitration scheme, which is just one of the 29 other equally important Leveson criteria for an effective regulator. In addition, it appears that the proposed review in four years’ time is being done in secret and with no clear criteria.

As always, I am willing to meet Ministers at the DCMS, IPSO and the ICO, and invite other victims to join me; and perhaps, one day, a victim-first approach will be embraced by them all. I say to the Government that despite their new provisions, they have let them get away with it again. However, now is not the time to press this further; rather, it is a time to watch and wait.

[Lord Falconer of Thoroton (Lab)]

My Lords, Amendment A3 in my name is an amendment to Motion A. I will speak to it now although it will be formally moved later.

I want to make two points, the first of which is to explain the purpose of my Amendment A3. Before I do so, however, I want to take up what the noble Lord, Lord, Cormack, said. He begged the noble Lord, Lord McNally, to withdraw his amendment, a point which the noble Lord, Lord Fairfax, made from a slightly different point of view. It is important to listen to what the noble Lord, Lord McNally, is saying—and I strongly support what he is saying. He accepts that in the context of this Bill, the question of Leveson 2 has effectively been decided. We have sent it back twice to the Commons and, first with a majority of nine and then with a majority of 12, the Commons said that it did not want Leveson 2.

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Tabled by

[Lord Falconer of Thoroton]

At end, insert “and do propose amendments 62BFA and 62BFB to Commons Amendment 62BF—

62BFA Line 24, at end insert—
“( ) During a relevant period, section 144(1) does not apply (and proceedings in respect of an information notice given during a relevant period may continue after the end of the period).”

62BFB Line 36, leave out from “period,” to end of line 41 and insert “section 147(5) does not apply (and proceedings in respect of an assessment notice given during a relevant period may continue after the end of the period).””

[Lord Falconer of Thoroton]

I am very reassured by what the noble and learned Lord, Lord Keen of Elie, said about the power. I took him to mean that it cannot be used prepublication, and will be available post publication. I apologise to him for being such a poor pupil in failing to understand that, but it is important that he said it.

The noble Lord, Lord McNally, is absolutely right not to press Motion A1, because it is too late, basically. However, like him, I remain incredibly disturbed about the terms of the provision and the ability that it gives the Secretary of State to interfere in the press. I can tell you only my experience as a Minister: nobody ever told you what was said in Parliament about how a power that was questionable would be used; they only came and told you the terms of the statute. The word “effectiveness” clearly carries a value judgment.

Motion A3 (as an amendment to Motion A) not moved.

European Union (Withdrawal) Bill

Lord Falconer of Thoroton Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, my understanding is that the Government are determined, and have the present intention, to implement directives that have been adopted and which have an implementation period that expires before the exit date. I cannot give an absolute assurance to that extent but that has been and continues to be the Government’s position. Indeed, to put it another way, we will continue to perform our obligations as a member of the EU, as we are bound to do by the treaty provisions. One of our obligations is to implement directives that have been adopted in Europe within the implementation period or by the transition date that is set out.

[Lord Falconer of Thoroton (Lab)]

I express my gratitude and admiration for the way that the noble and learned Lords, Lord Mackay of Clashfern and Lord Keen of Elie, are bringing lustre to the Scottish Bar in the way that they are answering all these questions so brilliantly and with such trouble. My inquiry relates to a directive requiring implementation that has not been implemented, where there are certain rights that would be directly enforceable by an individual and there is no court case that says that. Can you go to court afterwards and say, “We can enforce that because there was a directive prior to the date of exit”? No court has said that it was directly enforceable; you could argue subsequently that if you win, you win—this would be in the domestic courts—and can say it is enforceable. Would that be covered?

[Lord Keen of Elie]

No, that would not be covered, because in those circumstances there would have been no crystallisation of the direct right prior to the exit date. That is our position with regard to that point—but I am obliged to the noble and learned Lord for his acknowledgment that we are answering questions as they are posed. I was rather hoping that my noble and learned friend Lord Mackay of Clashfern might actually come forward to the Front Bench and allow me to retire to the second tier in order that this matter could be dealt with even more cogently than I am able to do.

I return for just a moment to the actual amendment. I have sought to emphasise—clearly, I hope—why the amendment is not appropriate in the present context. It would simply take away from one of the principal purposes of the Bill, which is to determine that there is an exit date—a cut-off point—when we will determine the scope of our own domestic law. I can quite understand the point made by the noble Baroness, Lady Young, about emerging provisions in the EU that have been worked on for many years and that would bring about appropriate and attractive standards for various aspects of our life in the United Kingdom—but, of course, it would be perfectly open to this Parliament to decide, in light of what has already been agreed in Europe, that it would be appropriate to have these standards in our domestic law, and we will have the means to do that. It is just that they will not form part of retained EU law for the purposes of this Bill.

On the noble Baroness’s amendment, I respectfully suggest that the mechanism that she has put forward—that you somehow retain the ECA for some purpose after it has been repealed—simply would not work. I appreciate that this is Committee, and we are actually looking at the underlying purpose of the proposed amendment and therefore have to consider whether we find that attractive and then look for a way to make it work. Nevertheless, it is appropriate to notice that the actual mechanism proposed in the amendment would not work.

I hope that I have addressed most of the points raised by noble Lords, but I agree with the observations made by the noble and learned Lord, Lord Brown, my noble and learned friend Lord Mackay and the noble Lord, Lord Pannick, with regard to what this Bill is attempting to achieve. It is attempting to achieve certainty as to the scope of our domestic law at exit date. That is its purpose, and we must keep that in mind.

--- Later in debate ---

[Baroness Ludford]

Before the noble Baroness sits down, I invite her to agree with me that the fears that she raises are not fanciful. Indeed, the reason the Brexit Secretary had to make his speech was that we have on record numerous statements by Conservative politicians who are now Ministers expressing a desire to deregulate. I quoted one from the noble Lord, Lord Callanan, the other day. In 2012, Liam Fox said:

“To restore Britain’s competitiveness we must begin by deregulating the labour market. Political objections must be overridden. It is too difficult to hire and fire and too expensive to take on new employees. It is intellectually unsustainable to believe that workplace rights should remain untouchable”.


That is on the record, and I have lots of other quotes in a similar vein.

[Lord Falconer of Thoroton]

My Lords, three pretty clear themes are emerging around the House. First, you should be able to use the subordinate legislation to change EU retained law only where it is necessary to make EU retained law work. Secondly, it should affect only technical matters; and thirdly, it should not take away any individual’s rights. So there are three requirements: it must be necessary to make it work, affect only technical matters and not take away anybody’s rights. The argument for being allowed to go further has not been made anywhere, and I would be very interested to hear the Minister say why those three principles should not apply to every piece of subordinate legislation under the Act. If the Government want to go further, primary legislation should be used. Unless there is a case for going further, this Act should be appropriately limited.

[Lord Faulks (Con)]

The Bingham Centre makes the very cogent point that there is no clear analysis so far as to what the body of EU law is in an easily accessible form, so that businesses and individuals can ascertain what applies to them. However, the Solicitor-General said in the other place that there are 12,000 EU regulations currently in force in the UK and around 7,900 statutory instruments implementing EU legislation.

I understand the fears expressed around the House, particularly on the opposite Benches about the feeling that the Government have all sorts of sinister plans to take away rights. They will do so if they feel it necessary, by primary legislation, it is said, but no other way. This amendment would make it very difficult to do anything other than by primary legislation. First, a list of so-called technical provisions has to be established—a considerable challenge. No changes can modify any of the matters which are set out in Amendment 21. Those matters seem to cover more or less everything. What is to say that labelling and packaging is not a matter for consumer standards? Matters of health and safety entitlements, equality entitlements and rights of protection—almost anything can come within those definitions. Similarly, there are environmental standards and protection. I am not talking about fundamental matters such as the working time directive, but a great deal of the various regulations and statutory instruments that come from Europe are relatively trivial. Even those who endorse very much what has come from Europe would accept that not all of it is critical or crucial to our society going forward. That will make it almost impossible to change anything, which may be the desire of members of the party opposite who do not want to leave the European Union—or those all around the House.

That is the effect of this amendment. So far as Amendment 22 is concerned, on “human rights protection”, the noble Lord, Lord Cashman, was very succinct; he did not specify what “human rights protection” meant. We had a debate on the Charter of Fundamental Rights—

Bach Commission: The Right to Justice

Lord Falconer of Thoroton Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I declare my interests: first, I gave evidence to the Bach commission; and, secondly, I made a financial contribution to the work of that commission. I pay tribute to my noble friend Lord Bach, who has driven the Bach commission. I also pay tribute to all the members of that commission who have expertise and experience in the provision of legal aid and access to justice. I invite noble Lords to look at page 2 of the draft report to appreciate the quality of the people engaged on the commission. I join my noble friend Lord Bach in paying particular tribute to Sir Henry Brooke, whose insight, energy and sympathy are evident in every word of the report.

The report accurately refers to a crisis in relation to access to justice. The evidence is marshalled brilliantly in the report. The effect of the crisis can be seen in many areas, of which I will mention just a few. The rights that we give to people are worthless if they cannot enforce them. I refer to three areas in this regard. First, the laws on welfare are so complicated that you need a lawyer to get through them to access welfare benefits. However, you cannot get access to a lawyer or to a tribunal to correct a decision: 61% of cases brought to any sort of appeal on a welfare officer’s decision are overturned. That figure accounts only for those cases taken to an appeal. The number of wrong decisions is unimaginable. That is an example of there being no access to justice.

Secondly, as regards equality rights, as a country we pride ourselves on having taken steps to ensure that, for example, there is a right to equal pay. To enforce that right you have to go to a tribunal. As a result of this Government’s conduct in relation to the charges for going to a tribunal, the last four or five years have meant, as the court found in the UNISON case, that that right was inaccessible to large numbers of people.

Thirdly, as regards employment rights, over decades we have given people the right to be treated fairly and properly at work. Those rights are ultimately enforced by going to an employment tribunal. If you do not understand the rights because they are too complex or the fees to go to an employment tribunal are too large, you do not have access to justice in that regard.

Those are three examples of the consequences of there not being proper access to justice, but it goes much further than that. If people cannot hold the Government to the law by means of judicial review—which they cannot unless they can afford it and unless in practice they can get a lawyer to do it for them in most cases—the Government are, in effect, free not to comply with the law. Many events happen to people who are completely blameless, where we have sought to give protection through the law.

I will give two examples, the first of which concerns bereavement caused by an act of the state. Inquests are designed to get to the truth. It is incredibly important for an individual’s sense of what happened that they get to the truth, and it is incredibly important to ensure that it will not happen again. If, as a family member involved in one of these cases, you cannot have legal assistance and you are faced with a battery of lawyers from the police, the fire service, the ambulance service, the local authority and the contractor, you do not have a hope of getting to the truth. At present, you cannot get reasonable legal assistance in most inquest cases.

Secondly, if your relationship with your partner breaks up—for example, you have been a victim of bullying by your partner over years—one of the things LASPO did was to take away the right to legal aid in practically every single private law case; that is, cases where husbands and wives or partners splitting up row about particular issues. That led to institutionalising the ability to bully one party if that had been going on before.

The standards of our life drop if people cannot go to court and the burden on the Exchequer goes up if you cannot help people reach reasonable solutions. Immediate change is required. The report identifies 25 specific things that need to be done to address the immediate crisis, but much more is required on an institutional basis. At present, for there to be proper access to justice we depend on cases that are brought before the court once in a blue moon, charging that there has been no access to justice, as a result of the work of pressure groups and lawyers, the statements of judges and the work of the Lord Chancellor behind the scenes. Obviously, that is not enough. That we have ended up in this crisis situation—again, I say that “crisis” is not an overworked word—indicates that the institutional safeguards to ensure that people have access to justice are not working. There needs to be something more, just as in relation to the health service and education.

The proposal in the report—the right to justice Act—will ensure that each individual has a right to,

“reasonable legal assistance without costs they cannot afford”.

That does not mean a right to be given legal aid in every single case; it means that where it is necessary to satisfy the minimum requirement of access to justice, it will be provided. It is not for politicians to decide when that is required, but an independent body. That body should be able to intervene to ensure that that happens and to fulfil the need for access to justice.

I commend the detail of this report to the House. I very much hope that the Government will look at it and consider acting on it, because, if they do not, the crisis will continue.

Fox-Sky Merger

Lord Falconer of Thoroton Excerpts

Thursday 20th July 2017 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am grateful to the noble and learned Lord for repeating the Secretary of State’s Statement in this House. I am also grateful to the Secretary of State for keeping Parliament informed as to what her process is. I am glad that she is minded to refer on plurality and horrified that she is minded not to refer on broadcasting standards. I understand and accept what the noble and learned Lord says: no decision has been made about either matter at the moment. My concern is that Sky, a trusted broadcaster, could go the way of Fox News in the US, and we could lose an impartial broadcaster that complies with our standards. I am extremely worried that Sky will fall 100% into the hands of a family who have been guilty of allowing regulatory standards to be ignored in relation to the newspaper industry in the UK and have allowed Fox News to be guilty of a whole series of illegalities and breaches of the law, particularly in relation to sexual harassment.

From a legal point of view I am extremely concerned that the Secretary of State will rely too heavily on what appears to me a flawed finding by Ofcom that Sky would remain fit and proper if it became 100% owned by 21st Century Fox. I appreciate what the noble and learned Lord says about the Secretary of State’s role being quasi-judicial. What advice is the Secretary of State receiving on the legal position in relation to the extent to which she is bound by Ofcom’s fit and proper finding? To what extent is she aware that a totally different threshold has to be passed to refer the broadcasting standards issue to the CMA from the standard applied by Ofcom in relation to the fit and proper test?

I have a final observation. I would not mind if the Secretary of State referred the matter to the CMA on grounds of both broadcasting standards and plurality. However, I would be horrified if she thought that she could rule out any consideration of whether that was right during a recess. That would be wholly inappropriate.