Data Protection Bill [HL]
Monday 6th November 2017
(7 years, 1 month ago)
Lords ChamberData Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 66-II(Rev)(a) Amendment for Committee, supplementary to the revised second marshalled list (PDF, 55KB) - (6 Nov 2017)
Lord Tope (LD)
My Lords, it is a pleasure at last to move Amendment 26. I do not think that I will detain the Committee for very long on this relatively straightforward amendment. I was alerted to concerns about this matter by London Councils, which represents the 32 London borough councils and the City of London. London Councils operates services on behalf of the London boroughs on a non-statutory basis. It is concerned about the present wording of the Bill, particularly Schedule 1 and the part to which my amendment applies, which fails to consider non-statutory services in relation to the conditions that must be satisfied to meet the exemptions set out in Schedule 1.
In particular, London Councils provides the Taxicard service, which is a non-statutory subsidised mobility service for people with severe sight and/or mobility impairments. The service currently provides around 70,000 disabled, and in many cases vulnerable, Londoners with subsidised transport, for which eligibility is determined at borough level.
When applying for the service, applicants provide special categories of data to demonstrate their eligibility. London Councils is therefore data controller and processor of such data. The Taxicard service falls within the definition of social protection and is a social protection scheme as set out in EU regulation 458/2007—however, it is delivered on a non-statutory basis. The current wording of the Bill is ambiguous as to whether services such as Taxicard would comply with the exemptions set out in the Bill. Despite fulfilling the definition of “social protection” set out in EU law it is a non-statutory service in respect of UK law. As the Bill refers to,
“the law relating to social protection”,
there are concerns about the extent to which organisations such as London Councils can rely on the exemption.
Were the exemption not to apply to the scheme, London Councils would have to take measures to comply with the provisions of the GDPR. These would include periodically writing to all 70,000 members to ask their explicit consent to process their special categories of data. Given the particular cohort of members of Taxicard, it is likely that some will not understand or be sufficiently informed of the GDPR to know why they are being written to or, probably, not sufficiently capable or motivated to respond, given their underlying health conditions. In taking such measures there is a real risk that many disabled Londoners who currently benefit from the scheme would no longer be able to do so, because anyone who did not respond would have to be deemed to have withheld their consent. In such cases, London Councils would have to stop providing the Taxicard service.
I am quite certain that it is not the intention of the Government that that should happen; still less that the Bill should be the means by which it happens. I understand that London Councils met officials at the department some three weeks ago, so I hope that the Minister will be able to say, preferably, that he accepts my amendment this evening—victory is always pleasant, if unusual—but if he cannot, that he can at least give some comfort that the Government are cognisant of the problem, that they are working on it and that appropriate amendments will be made to this schedule to ensure that there is no question of any ambiguity. I beg to move.
Baroness Chisholm of Owlpen (Con)
My Lords, as the Minister said in responding to the previous group of amendments, in order for special categories of personal data, for example, data concerning health, to be processed, controllers must demonstrate that the processing meets one of the conditions for processing set out in Article 9. Article 9(2)(b) permits processing without the consent of the data subject where necessary for purposes of employment law, social security law and social protection law, provided that a legal basis is set out in UK law. Paragraph 1 of Schedule 1 therefore introduces the necessary processing condition.
The noble Lord queried whether the reference to “social protection law” could be removed in favour of a more general provision on social protection. I am aware that some local councils have raised concerns about whether some of the services they provide would be covered by the current wording. We are somewhat restricted by the wording of Article 9, which specifically refers to “social protection law”, so limited change is allowed. Nevertheless, I can reassure the noble Lord that the term has a broad interpretation. This is because paragraph 1(3) of Schedule 1 provides that “social protection” would include any intervention described in Article 2(b) of Regulation (EC) 458/2007 of the European Parliament. I am sure all here read the regs every night, but for those who are not familiar with that regulation, Article 2(b) covers interventions that are needed to support people who may be suffering difficulties in relation to healthcare or sickness; disability; old age; survivorship; family and children; unemployment; housing; and social exclusion. Given the breadth of issues covered, I think it would be fair to say that the current wording of the clause would cover a wide range of social services interventions.
It is worth adding that social protection law is a new ground for processing special categories of data in the Bill. It was not included in the Data Protection Act 1998 as a specific category. From that point of view, it should be more helpful to social service providers than the previous provisions in the Data Protection Act 1998 on which they currently rely.
I recognise the concern that Taxicard is a non-statutory service and therefore may not be able to use the derogation in Part 1 of Schedule 1, which uses the term,
“law relating to social protection”.
As I have already illustrated, the Government’s intention is to apply this derogation broadly. There is no desire to see vital services, which are often a lifeline to their clients, stopped. I am happy to take away the specific issue the noble Lord raised and to work with the Information Commissioner and her office to consider it further. I hope that reassures the noble Lord, Lord Tope, and I respectfully invite him to withdraw his amendment.
Lord Tope
My Lords, I am most grateful to the Minister for setting that out so fully and clearly. As I think I said when moving the amendment, I am quite sure it is not the intention of the Government that the Bill should have this effect, but at this stage of any legislation we always have to be particularly concerned about any unintended consequences. I will seek advice from those better able to determine such matters than I am. I am grateful to hear from the Minister that the Government are cognisant of the issue and are considering it. If necessary we can return to it at a later stage of the Bill with appropriate amendments. I beg leave to withdraw the amendment.
Lord Ashton of Hyde
Lord Stevenson of Balmacara (Lab)
My Lords, at Second Reading I touched on the question of whether the Bill might be used as a vehicle for rehearsing some of the arguments that we have heard in your Lordships’ House about the issues raised by Sir Brian Leveson in his report. I opined at the time, and am still of the belief, that this would not be the right place to put forward those amendments again, because I would favour an initiative from the other side of the House which tried to build on some of the work that was done in the run-up to the work that was done after the Leveson report was first published, which saw all party groups coming together to try and find a way forward. It seemed that we were beginning to get ourselves into a cul-de-sac on many of these issues. Although there were strong passions and strong beliefs, and good intellectual and other reasons for taking forward some of these issues, the times had changed and the climate had moved on. It was therefore important to try and think again about what would happen.
However, I also said that maybe others would take a different view of that and come forward with amendments on these and related issues. I expressed the view that, if they did, Her Majesty’s Loyal Opposition would look at them on their merits and respond to them as and when they came up. This explains why we have not signed up to some of the amendments that are before your Lordships’ House today.
I also said that our main concern going into Committee would be to make sure that the arrangements under which we currently operated, which were largely set out in the Data Protection Act 1998, were continued. It was very important that all concerned had confidence that the transposition between 1998 and today, and going forward to 25 May 2018, was adequate and sufficient, in terms of how we approached them in relation to that Bill. I am therefore introducing Amendment 42, which is largely a probing amendment aimed at getting Ministers on the record as to whether or not they feel that the transposition has been made fairly and effectively. To the extent that there is an addition to the existing law, as I understand that to be the case, it is in response to a particular aspect of the current regime which does not seem to work well in practice. The Information Commissioner’s Office has made it clear that it feels that it could do with an additional power, which I think is provided for in the Bill, to assist with the ability to reimburse those who have been affected by actions arising from a complaint they have taken forward in relation to the press. If that is the case, I would be happy to have that confirmed. That is the reason for Amendment 42, and I look forward to hearing from Ministers how they respond to that.
In pursuit of a perfectly normal and natural wish to scrutinise the Bill as it is before us, we have two other amendments in this group. Amendment 87B was offered to us by the NUJ, and is on a question which comes up a lot when talking about intellectual property issues relating to photography—not that this is actually about that, but journalism has a common-sense meaning which is often used in language other than that of Bills to reflect all aspects of journalism, including photojournalism. But of course it is not the totality of what photographers do, so this amendment is an attempt to get on the record what Ministers believe to be the sense on page 136, in Part 5, where paragraph 24(2) states that GDPR provisions do not apply,
“to personal data that is being processed only for the special purposes to the extent that … the personal data is being processed with a view to the publication by a person of journalistic, academic, artistic or literary material”.
Given the absence of the term “photography” or “photographer”, I have a slightly rhetorical question, but one to which I am looking for an answer. Can I assume that the sense of that paragraph is that this would catch photographers?
If that is the case, since photography is often done in a way that would not always result in publication, could we have clarity about the situation if the photographers were to rely on this provision in relation to material? Say, for instance, they were taking a number of photographs of a demonstration, some of which would be used but a lot would not be, and then it was felt that there was some other purpose that those photographs could be used for—that was an example given to us by the NUJ. It was concerned that the photographer should not be discriminated against, in the sense that the work of building up a personal archive of photographs taken on the job that did not result in specific publication might not necessarily fit particularly well with that. This is just a probing amendment to see what the response to that is.
The other amendment in our name in this group is Amendment 87E, relating to an issue that has been raised by others in this group. There is what I think is meant to be a transposition from the Data Protection Act 1998 to refer to the question of whether or not the public interest is engaged, and various rules and regulations around that. The notion behind our amendment is that we are not sure it is helpful nowadays for the legislation to refer in specifics to a list of codes and practices, particularly because one of those—I reference paragraph 24(5)(c)—is not correctly described. I think others will speak to this as well. Obviously there is a code of practice that editors of major newspapers have contributed to and which works reasonably well in practice, but the danger about that as an example is that it cuts out a lot of other codes of practice that could easily be mentioned there. Having them there does not seem to advance the argument, which is that the controller must have regard to appropriate codes of practice or guidelines that exist. In the event that any question is raised by the Information Commissioner or others, it is more appropriate for that to be left more general than specific. With that, I look forward to the responses. I beg to move.
Baroness Hollins (CB)
My Lords, I will speak to the amendment in my name. I am grateful to the noble Earl, Lord Attlee, who has added his name in support. I will also speak in support of the amendment in the name of my noble friend Lord Skidelsky.
First, I want to explain why the Bill in its current form does not provide an adequate balance between privacy and freedom of expression, despite claims to the contrary by some parts of the media this weekend. Freedom of expression is essential to hold power to account and to expose wrongdoing, and it must be protected. However, the public also need to be protected from those who might seek to abuse such freedoms with the primary business purpose of selling newspapers.
The need for balance was recognised by Lord Justice Leveson in his 2012 report, and these amendments seek simply to implement some of the Leveson recommendations on data protection. It is worth remembering how some newspapers exploited private data in the past. Operation Motorman was a lengthy police investigation. The Information Commissioner reported on it in 2006, detailing the kinds of information that private investigators were buying unlawfully or obtaining by deception, including bank records, medical records, tax records, benefits records, phone records—thousands of transactions obtained from just one private investigator and commissioned by journalists. The victims whose data had been illegally accessed were not celebrities or public figures being investigated for genuine public interest reasons. They were just ordinary people with tenuous connections to those in the public eye: the sister of a well-known MP’s partner; the mother of a man once linked romantically to a “Big Brother” contestant; the decorator who had once worked for a lottery winner; and the GP who was doorstepped by a Sunday newspaper in the mistaken belief that he had inherited a large sum from a former patient. All these were victims of data misuse, and we are still learning how widespread those practices were.
Some argue that that is history and that newsroom practices have changed since the Leveson report, but the economic pressures which drove newspapers to desperate practices before are even more acute now. Many of the same editors and senior executives are still in place, and many in this House will remember similar promises of reform made by newspaper editors in the wake of the Calcutt report nearly 25 years ago. Does the Minister agree that this time, it is our responsibility to act decisively to protect the public from the less scrupulous elements of the press?
There is an exemption in the Data Protection Act 1998 for journalism, and this is reproduced in the Bill, but the exemption as drafted effectively offers a blank cheque to publishers and would allow them to breach data rights with little protection for the public from abuse. The GDPR is clear: exemptions should be made only when they are necessary to reconcile the right to protection of personal data with freedom of expression. My amendments are designed to ensure that this balance is properly preserved. They have been drafted by a senior QC and are based on recommendations made by Lord Justice Leveson, himself an independent senior judge, after a public inquiry in which he heard evidence and arguments from all sides, including the newspaper industry. I should declare an interest here and remind the Committee that I gave evidence to the Leveson inquiry.
Lord Skidelsky (CB)
My Lords, Amendment 89A in my name would remove the reference on page 137, line 14, to the IPSO editors’ code—written mainly by newspaper editors and enforced by their own, industry-controlled regulator—and replace it with a reference to any code operated by a regulator which meets Leveson’s criteria for independence and effectiveness. It is wrong, in principle, to place the IPSO Editors’ Code of Practice in the Bill alongside the BBC guidelines and Ofcom code of practice, which are the approved codes of statutory bodies. Parliament has approved a procedure whereby a press regulator may apply for recognition from the Press Recognition Panel, which is an integral part of the charter system, devised by Parliament to oversee press regulation. One of the criteria set out by the panel for effective self-regulation is that the regulator,
“should be independent of the publishers it regulates”.
I do not know whether the IPSO code would pass this test, because it has never been tested; IPSO has never applied for recognition. However, I doubt it, because the code is drawn up and managed by the editors’ code committee, which is made up of nine editors and newspaper executives and three lay people, with the chairman as an ex officio member. What is more, that code could be changed by that particular committee of the newspaper industry any time it wants and there is nothing that Parliament could do about it. That means that it is quite wrong for the IPSO code to be singled out, for reasons of freedom and information, for the full range of exemptions to which the noble Baroness, Lady Hollins, referred. It would be quite wrong for it to get that status.
My amendment seeks to confine the media code of conduct to the BBC guidelines, the Ofcom code and any code recognised by the Press Recognition Panel set up by the royal charter to provide a credible balance between freedom of expression and the right to privacy. I hope that the Government and the whole House will give it sympathetic consideration. I am sorry that I did not consult more widely beforehand: I am trying to finish a book which the publishers are screaming for, but I should have done that. However, I hope that this amendment will receive consideration.
Earl Attlee (Con)
My Lords, I am grateful to the noble Baroness, Lady Hollins, and the noble Lord, Lord Skidelsky, for speaking to these important amendments. The noble Lord, Lord Skidelsky, need not worry about not priming the House, as it were, as we are only in Committee and this is a very early stage in the process.
I am sure the Committee will agree that data protection requires the proper balancing of rights, and the amendments in the name of the noble Baroness, Lady Hollins, address that balance in the key area of journalism. Freedom of expression must include genuine public interest journalism. It must be right that journalists and the media have special rights in respect of data protection. It is obvious that the media have a vital role in ensuring that parliamentarians and others in public life adhere to the seven principles of public service. That role would be frustrated if there was a general right for everyone, not just politicians, to know what, if anything, the media “had on them”, if I may put it that way. These amendments do no more than strike that balance correctly: to protect public interest journalism while preventing the systemic abuse of citizens’ data rights. That abuse happened at the News of the World most infamously, but it also happened on an industrial scale at Trinity Mirror titles and other newspapers.
However, these amendments would also achieve something further and equally desirable. In retaining the broader exemption for newspapers that have agreed to sign up to an independent regulator, these amendments, while protecting the public, would also encourage newspapers to sign up to a genuinely independent regulator. Your Lordships will recall that in 2013, we voted in support of implementing the Leveson recommendations to provide an incentive for newspapers to sign up to an independent regulator. This was the system the former Prime Minister, David Cameron, recommended to Parliament, which was signed up to by all major parties in Parliament at that time. That system came with incentives because Leveson was not naive enough to believe that newspapers would sacrifice control over their own regulator without those incentives, and neither was this House. It is extremely regrettable, therefore, that the Government have so far not commenced Section 40 of the Crime and Courts Act, which was passed by this House to provide the most critical of those incentives.
The former Prime Minister, Sir John Major, warned at the Leveson inquiry that there was a serious risk of one party breaking ranks on press regulation policy. Making policy sacrifices to the press is a temptation that afflicts Governments of all colours, of course. However, I hope that the Government will recognise the strength of feeling in this House. This amendment would add to the work of the incentive passed by this House in 2013: it would incentivise newspapers to sign up to an independent regulator while still protecting the public.
I turn to the amendment in the name of the noble Lord, Lord Skidelsky. The proposed designation of the editors’ code is very odd indeed, first, because the Bill names an NGO in primary legislation which might not necessarily exist even next week. Of course, I can fully understand why it would not be appropriate to have the Secretary of State designate a regulator. It would smack of state regulation of the media, which we all want to avoid. Secondly, however, it is because the Crime and Courts Act and the royal charter combined already provide a mechanism for ensuring that any press regulator is genuinely independent and effective. I therefore support the amendment in the name of the noble Lord, Lord Skidelsky, which would replace the code used by IPSO with that of any regulator which was approved by the Press Recognition Panel under the royal charter. Of course, that could include the code of IPSO, if it reformed itself to pass the modest Leveson tests for independence and effectiveness. Clearly, Parliament put the Press Recognition Panel—the independent panel free from politicians and the press—in the sole position of judging the independence and effectiveness of press regulators. The Government should not seek to override their role by specifying the editors’ code in this manner.
Finally, I make it clear that I have already written formally to my noble friend the Chief Whip, indicating that I will vote in support of these amendments on Report if there is a Division. Tonight, however, we should confine ourselves to having a thorough discussion about them.
Baroness O’Neill of Bengarve (CB)
My Lords, I add my voice to those of my noble friends and the noble Earl, Lord Attlee. We sometimes forget that in talking about an approved regulator, we do not mean that the Press Recognition Panel is a regulator; it is an audit body—an auditor of self-regulating bodies. The press requires self-regulation, but which meets a standard in which members of the public can have confidence. They can have confidence if the process that we have already agreed of setting up a self-recognition panel is used. It is of course open to IPSO to apply for recognition by that process, remaining self-regulating but recognised, as it is open to other self-regulating bodies to be recognised in that way. This is a satisfactory way of accommodating the interests we all have in having media that are self-regulating but also meet standards.
Lord Black of Brentwood (Con)
My Lords, I declare an interest in this group of amendments as executive director of Telegraph Media Group and draw attention to my other media interests in the register.
When I saw, not with a great deal of surprise, that this group of interlocking amendments relating to press regulation had been tabled—perhaps their second or third outing in as many years—I was reminded fleetingly of that famous line of President Reagan to Jimmy Carter in a presidential debate: “There you go again”. That is what this feels like. We have another Bill—with only the most tangential link to the media—and yet another attempt to hijack it to bring about some form of statutory press control. As the Times put it last week:
“The Data Protection Bill is meant to enhance protection of personal data. It is not meant to be a press regulation bill by another name”.
But this profoundly dangerous set of amendments seeks to warp the Bill in just that way.
Can we please be crystal clear about the impetus behind these amendments? It is certainly nothing to do with data protection. It is to try, yet again, to force the British press—national papers, regional and local papers, and magazines: in other words, everything from the Guardian and the Daily Telegraph to the Birmingham Mail, the Radio Times and Country Life—into a state-sponsored regulator, with virtually no members and no prospect of any, and almost wholly funded by the anti-press campaigner Max Mosley. Indeed, it is the very same regulator which was recently brought into disrepute when an internal report found that its chief executive and two members of its board had breached internal standards by distributing tweets attacking major national newspapers and journalists. These amendments try to do that by seeking to remove vital journalistic exemptions enshrined in the GDPR from all those who will not, on grounds of principle, be bullied into a system of state-sponsored regulation. Other amendments seek to remove the protection for freedom of expression, which has worked very well in the Data Protection Act 1998, to balance convention rights and make privacy in effect a trump card.
Let us be clear: the amendments would be a body blow to investigative journalism—at a time when, as we have seen in recent days and weeks, it has never been more vital—by giving powerful claimants with something to hide the ammunition to pursue legal claims and shut down legitimate public interest investigations into their activities even before anything is published. All UK news operations, none of which will under any circumstances join Impress or any body recognised by the Press Recognition Panel, would find themselves under incessant legal challenge, with a profound impact not just on investigations but on news, features and even the keeping of archives. In my view, it is no exaggeration to say that that would overturn the principle that has underpinned free speech in Britain for two centuries: that journalists have the right to publish what they believe to be in the public interest and answer for it after publication—a right upheld by the courts here and all the way up to the European Court of Human Rights.
The protections which make investigative journalism possible would in effect be enjoyed by only a handful of hyper-local publishers which have signed up to a state-backed regulator. Are the noble Lords in whose names these amendments stand really content to see the future of investigative journalism in this country invested in The Ferret or insideMoray, rather than in the teams from the Observer, the Liverpool Echo, the Scotsman and the many others which over the years have broken story after story in the public interest? Frankly, if this were not so deadly serious, it would be funny.
If these amendments ever found their way into this legislation, it would be not just a massive blow for investigative journalism and public interest reporting but a further knock to our international reputation as a beacon for press freedom. No other country in the free world has a system such as the one proposed here, where publications are bullied by politicians into some form of state-backed regulation.
It is six years since the Leveson inquiry took place. In those six years, the world has changed—not just in terms of the commercial position of newspapers and magazines, many of which now fight daily battles simply to survive, but also in terms of strong independent regulation. It is time that we moved on too, and I am very pleased that my party has done so by committing itself to the repeal of Section 40.
This Bill is very carefully crafted to balance rights to free expression and rights to privacy, which of course are of huge importance. It recognises the vital importance of free speech in a free society at the same time as protecting individuals. It replicates a system which has worked well for 20 years and can work well for another 20. To unpick it in the way that this set of amendments tries to do, making so much public interest reporting impossible, is grossly irresponsible, and I hope that the Committee will reject it.
Earl Attlee
My Lords, my noble friend has made a very interesting speech, which is very helpful to the Committee, but it would also be helpful to the Committee if we could understand what it is in the requirements of the Press Recognition Panel that makes it impossible, or makes IPSO unwilling, to meet those requirements. What is so difficult about becoming an approved regulator?
Lord Black of Brentwood
My Lords, it is not a question of meeting the requirements of the Press Recognition Panel. It is my belief that IPSO probably would meet the requirements. It is a fundamental belief that self-regulation cannot be self-regulation if it is approved by a state-run body. The Press Recognition Panel was set up by royal charter, which is a method of state regulation in all but name, and the press will not and cannot—and in my view absolutely should not—submit itself to something that has state backing in that way.
Earl Attlee
My Lords, that is extremely helpful to the Committee but I still do not understand how the state and government Ministers would be able to influence the work of the Press Recognition Panel.
Lord Black of Brentwood
My Lords, the Press Recognition Panel was set up by royal charter, underpinned by legislation in this House, legislation to which I was fundamentally opposed. The Press Recognition Panel was set up—I forget the exact figure—with £3 million of taxpayers’ money. It is a state-run body. To have a state-run body which in some way recognises a system of self-regulation negates the whole concept of self-regulation.
Earl Attlee
The noble Lord, Lord Black, is being very helpful. The courts are supposed to be independent and they are, but they are funded by the state as well.
Lord Black of Brentwood
My Lords, I am going to give way to judicial friends who are probably waiting to speak and will be able to deal with the question about the courts better than I can.
Lord Lester of Herne Hill (LD)
I remember Lord Campbell of Alloway once saying to me, “Never make a serious point after the dinner hour”. I think I now understand what he meant. I am in some difficulty, because my noble friends have not moved Amendment 88. I was hoping to make a speech explaining why I profoundly disagree with Amendment 88. Even given the flexibility of the rules of procedure of the House, I am not sure that I can do that until one of them moves Amendment 88. I am going to give them the opportunity of doing so.
Lord Skidelsky
The noble Lord, Lord Black, paints an incredibly rosy picture of the state of press regulation in the last 20 years. What he ignores is the background to the Leveson inquiry itself and the statutory system—the royal charter and so on—which followed it. There were years in which many newspapers grossly abused their freedom of speech. That is why this interlocking set of propositions, as he calls them, got going and produced a system which all the parties in Parliament accepted in 2013. He says that no other country in the world has a system like ours. No other country has had such an abusive press in parts, though not all the press by any means. These amendments seek to create a balance between freedom of speech and the right of privacy by setting up an auditor to determine how that balance is kept. It is an independent auditor, not part of the Government or the state. The noble Lord, Lord Black, seems to confuse the role of the state with that of an independent auditor, so the argument falls to the ground.
Lord McNally (LD)
My Lords, so that my noble friend Lord Lester can come in in due order, I will speak to Amendment 88. I also draw the Minister’s attention to Amendment 91, which relates to the City. It is clear from the ICO guidance that journalistic exemption was intended to apply to non-media companies, but this is not made explicit in the Bill. In addition, the Bill does not address whether material can be considered published if it is behind a paywall, or mainly addressed to corporate subscribers. That is the thinking behind Amendment 91. We were discussing earlier the concerns of some in financial services and companies such as Thomson Reuters about how the Bill affected them, and that is my probing for them.
I would like to speak to Amendment 88. I was one of the four privy counsellors who signed off the royal charter. I was in government when this went on. It was not an attempt by government to regulate the press. In fact, the coalition Government twisted and turned to try to find ways of taking this forward, as far away from state regulation as we possibly could.
Lord Lester of Herne Hill
My Lords, I wonder whether it might be helpful for me to begin by trying to find what we can all agree on and then look at what we cannot agree on. Everyone here, I am sure, will agree that the right to freedom of speech and the right to freedom of the press are essential foundations of a democratic society. Everyone would agree that the proper functioning of a modern participatory society requires the media to be free, active, professional—I underline the word “professional”—and inquiring. That is why the courts recognise the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary. As a great American judge once put it, one should not burn the house down in order to roast the pig.
Everyone would also agree, including the noble Lord, Lord Black, that freedom of expression and press freedom are not absolute rights; they carry responsibilities. The fate of the News of the World and the journalists convicted of gross abuses of privacy are examples of the need for effective regulation of the press and a fair balance between competing rights and interests. The way in which the family of the noble Baroness, Lady Hollins, was treated by the press was completely disgraceful and I am not surprised that ever since, she has pursued these issues with courage and determination. That does not mean that she is necessarily right, but it does mean that we should acknowledge that she and her family are real victims of real press abuse.
My noble friend Lord McNally will remember, since he and I made the Defamation Act 2013, how that Bill was hijacked in the House of Lords in order to try to coerce the press into what is now seen as a desirable system of regulation. Members of the House will remember that the Prime Minister refused to allow progress to be made on the then Defamation Bill until it was no longer taken hostage. What happened was that a deal was done, with Oliver Letwin as the broker, I think, to try to reach a compromise between the conflicting interests of privacy and free speech. Hacked Off got into the room without the press being represented and the result was the striking of a bargain that the press was profoundly opposed to. It was profoundly opposed to it because of the swingeing penalties by way of punitive damages and arbitrary costs rules as a punishment for the press if it did not join the system that was seen to be post Leveson. The reason why the press did not follow that path was that, among other things, it was advised by the noble Lord, Lord Pannick, and by me that it would be entirely unlawful for the press to be subject to arbitrary costs rules so that even if the press won, it would be liable to pay the other side’s legal costs and punitive damages. The noble Lord, Lord Pannick, advised in particular, and I agreed with him, that these were clearly contrary to the European Convention on Human Rights.
It is not true, as my noble friend Lord McNally seems to think, that nothing then happened, because something major did happen. The press barons who had for years been negligent and I would say stupid in opposing effective press regulation through the Press Complaints Commission, which was a useless and toothless regulator, realised in the end that the writing was on the wall. They appointed Sir Alan Moses, a very independent Court of Appeal judge, to become chairman of the Independent Press Standards Organisation. IPSO tackles media abuse. Although I know that not all agree, it is the independent regulator under a very independent chair for the newspaper and magazine industry in the UK. It regulates more than 1,500 print and 1,100 online titles. It handles complaints about possible breaches of the editors’ code. It gives guidance for editors and journalists. It advises about the editors’ code and it maintains a journalists’ whistleblowing hotline. Members of its staff are available to advise the public, complainants, editors and journalists, and it monitors its members’ compliance with the editorial code. It also carries out standards investigations where it believes that there have been serious and systemic breaches of the code.
Amendment 88, spoken to by my noble friend Lord McNally, would remove the reference in Schedule 2 to the IPSO Editors’ Code of Practice as a code of practice to be taken into account in determining whether it is reasonable for the controller to believe that publication is in the public interest. It would leave reference to the BBC Editorial Guidelines and the Ofcom Broadcasting Code, but make it more difficult for a publisher governed by IPSO to defend itself by relying on IPSO’s professional code.
Lord Skidelsky
I wonder how relevant all those last bits are to the subject we are discussing.
Lord Lester of Herne Hill
The relevance of what I have just said is that Max Mosley, who funds Impress, is fanatical in his desire for a privacy law that involves prior restraints. That simply indicates a complete lack of balance in his approach.
Lord Skidelsky
I have one more question. I thought we were discussing the substance of the argument, not the personalities of the people who may support one side or the other.
Lord Lester of Herne Hill
I was not discussing personalities, but what happened in the case in Strasbourg. I was about to say that, ironically, the Strasbourg court of human rights had regard to the editors’ code in the course of giving its judgment, so it certainly regarded the old editors’ code as relevant for that purpose.
The Explanatory Notes to the Bill state:
“Article 85 of the GDPR requires Member States to provide exemptions or derogations from certain rights and obligations in the context of processing personal data for journalistic purposes or the purpose of academic, artistic or literary expression”.
The notes go on to explain how that works. Article 10 is engaged, as there is an inherent tension between data protection and the right to freedom of expression. The Government were right to recognise those inherent tensions, which are not new. Personal data is about private information. I am reliably told that those public figures who wish to keep their private information away from inquiry now, as a matter of course, use data laws to protect publication in newspapers. If the correct balance is not struck, the ability of the press to act as a watchdog will be impaired to the detriment of democracy. Investigations, such as those into sex grooming, will become more difficult to publish.
The exemptions in Part 5 of Schedule 2 to the Bill are not new. They carry forward similar provisions in the Data Protection Act 1998. There is no good reason to amend them to the detriment of IPSO titles. It would be punitive to do so. Article 88 treats the majority of the print media, regulated by IPSO, less favourably than the BBC, broadcasters regulated by Ofcom and, if the amendment of the noble Lord, Lord Skidelsky, is accepted, members of Impress. That would mean that members of IPSO would be unable to rely on their compliance with the editors’ code—to which they are bound by contract—in their defence. It is difficult to understand the justification for this form of discrimination against editors and journalists working for our national and regional newspapers.
Lord McNally
I do not know how many more pages my noble friend has of this. Somewhere in it must be the recognition that IPSO has not applied for recognition, which would have given it all the protections he is calling for. He does not do himself a service. One of the reasons why people get irritated by the lawyers in this House is that they think that if they make a long enough speech it must be so and only the wicked would disagree. The reason why IPSO would be under threat is that it has not sought recognition. He gave a long list of IPSO’s supposed strengths. It is a sweetheart organisation. It is run by the newspaper owners. That is what we are trying to move away from.
I have now found something on the independent overseas press regulation. David Wolfe QC has said that it is disappointing that there continue to be attempts to prevent the recognition system working and that it is frustrating that Section 40 of the Crime and Courts Act has not been commenced. I would be a lot more impressed with my noble friend if he got behind that, or at least gave his friends in IPSO some really good advice and asked them to try to find a way forward with press regulation, instead of giving them an absolute veto on seeking a solution to this matter. I have finished—for the time being.
Lord Lester of Herne Hill
My Lords, I have tried to explain that the objection to the post-Leveson deal was that it was punitive and unfair. That is why the press chose, as is its right, not to be part of it. It chose instead a system of self-regulation with a very independent Court of Appeal judge, who, when he took office, made it clear that he would insist upon the system working properly and independently, as he has ever since. It is true that he has had to struggle against resistance by some newspapers, but that is the system we have.
Baroness Hollins
The noble Lord’s support for IPSO as being substantially better than the PCC is surprising. It has done no standards investigations, issued no fines and made no front-page corrections. I do not understand how that can be seen as regulation.
The noble Lord described Hacked Off as a movement set up to support celebrities. It was actually motivated by the Dowlers and sustained because of concerns about people like the McCanns and Christopher Jefferies. It is not about celebrities. Celebrity money has provided some of its support because they were motivated by hearing about those appalling abuses. That is what it is about.
All my amendments would do is incentivise a regulator to seek approval of its independence. Why will IPSO not seek approval and recognition of its independence? Why is it so afraid? Is it because it is not independent?
Lord Lester of Herne Hill
My Lords, I am not here on behalf of IPSO; I am not counsel for IPSO. I have simply tried to explain historically why we are where we are and the arguments the press made in the past that I was party to at the time, as was the noble Lord, Lord Pannick. If there are points to be made about the way in which IPSO works, no doubt they will be made by Members of the House. I stand corrected by the noble Baroness, Lady Hollins, who reminds me that it was not only celebrities who were abused, which is completely true.
What I am trying to say is that no democracy in the world has a system of press regulation that has been formulated post Leveson. It is objectionable to our national and regional newspapers. They will not change and suddenly agree to a different system because of anything which your Lordships say or do. It is a free press and the sensible thing to do is to make the system work. I believe that under Sir Alan Moses it is working, but if it is not working sufficiently, I am sure that they would be interested in any suggestions. It is hopeless if your Lordships believe that you can bully them into giving up their self-regulation in favour of the statutory system which they reject.
Earl Attlee
The noble Lord has been very helpful to the Committee. He told us what the disadvantages would be for a media operator if they were not signed up to an approved regulator. Can he tell the Committee what the advantages would be for a media operator if they were signed up to an approved regulator?
Lord Lester of Herne Hill
I do not understand the question. It depends on which regime we are talking about. Right now, there would be no advantages.
Lord Skidelsky
I have never heard a more absurd argument than that we can trust IPSO because Sir Alan Moses is chairman of it. Sir Alan is an admirable person; he is personal friend. How long is he going to be chairman? Who is the next chairman going to be? What about the independence of the editors’ code? The code may be fine at the moment, but it can be changed any time the committee decides without Parliament having any say in it at all.
Lord Lester of Herne Hill
I have been very careful not to traduce Impress or Max Mosley, nor will I seek to defend Alan Moses. We are not concerned with individual personalities; we are concerned with a political problem.
Lord Skidelsky
With great respect, we are concerned with the permanence of arrangements set up and put into primary legislation. The chairman of IPSO is not there for ever, and the code can be rewritten whenever the committee decides to do so.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, of course, we appreciate the contributions from all sides of the Committee on this issue, but let us be clear: this Bill is about data protection—it is not about press regulation. It is not about distinguishing between journalists, nor between the regulators they may or may not belong to.
The Government are committed to defending not only hard-won liberties but the operation of a free press. That is a fundamental principle of any liberal democracy. This Bill seeks to preserve the balance found in the 1998 Act, where journalists can process personal and special categories of personal data, but only when their processing is in the public interest and the substantial public interest respectively. The Bill also seeks to ensure that journalists are exempt from compliance with certain data protection requirements where to do so would undermine the operation of a free press, a key part of a strong and effective democracy where Governments are held to account and corruption and criminal behaviour can be challenged. No one seeks to condone the past misbehaviour of individual media organisations, nor to legitimise it.
Amendment 42 is moved by the noble Lord, Lord Stevenson. As we discussed last week in reference to Part 2 of Schedule 1, there is an exhaustive list of the types of processing which could be in the substantial public interest. When the Government consider that processing of a particular type will not always be in the substantial public interest, the Bill makes it a requirement that the data controller satisfies himself that any particular instance of processing is in the substantial public interest. Amendment 42 concerns the condition allowing journalists to process data in connection with unlawful acts and dishonesty, as dealt with in paragraph 10. The Bill, however, needs to balance freedom of expression with privacy and it may be that in some cases an act of dishonesty is not important enough and does not engage the substantial public interest to the extent that it justifies the processing of sensitive data by journalists. That is why the distinction is made.
To pick up on a point made by the noble Lord, Lord Stevenson, about continuity of arrangements in the 1998 Act, this processing condition is the same as that which currently appears under the existing Data Protection Act. It would appear that journalists have been dealing with that effectively and making the appropriate judgments for the last 20 years. I hope that that goes some way to explaining why we resist Amendment 42.
On Amendment 87B, I reassure the noble Lord that the specific inclusion of “photographic material” in paragraph 24(2)(a) of the schedule is unnecessary. This is because photographic material is likely to fall within one or more of the categories listed in that paragraph—for example, journalistic material or artistic material. We suggest that there is no requirement for express reference to photographic material. As for the point that was raised with the noble Lord by the NUJ, I think, about the use, the test is,
“with a view to publication”.
As long as that test is met, it does not necessarily follow that there must have been publication in order to legitimise the material in question. The position would, of course, be radically different if one had regard to one of the amendments moved by the noble Baroness, Lady Hollins.
Amendment 87E would remove the list of codes and guidelines in paragraph 24 of Schedule 2 that help controllers assess whether a publication would be in the public interest for data protection purposes and would replace it, as I understand it, with the term “appropriate codes”. I confess that I am a lawyer, to respond to a point made by the noble Lord, Lord McNally, or at least it is alleged that I am. That would certainly make it more difficult, as a matter for interpretation, for both publishers and the Information Commissioner to evaluate whether the publication of an individual’s personal data was in the public interest. Indeed, rather than the clarity of a list, one could instead be faced with years of potential litigation before an adequate body of case law was in place to establish what was appropriate. That is why we suggest it is appropriate that there should be a specific list, as reflected in the current legislation, the 1998 Act.
Amendments 88 and 89A concern the specific industry codes listed in the Bill. I start by saying that the codes currently listed in the Bill reflect those that are listed in the existing legislation. The editors’ code listed in the Bill—now enforced by IPSO rather than the Press Complaints Commission, I acknowledge —is one of these, and the Information Commissioner has already reflected this change in her current guidance on Section 32 of the existing Act. That follows from the Data Protection (Designated Codes of Practice) (No. 2) Order 2000, which set out the various codes of practice and included the editors’ code of practice. While there is a suggestion that the editors’ code of practice might change, in the light of any such change the Information Commissioner’s view and guidance as to the applicability of that code may also change. So it is not as if it is entirely without control.
Lord Clement-Jones (LD)
The Minister said that it could change, but the word IPSO is actually in the Bill, so I do not quite understand the point that the Minister has just made.
Lord Keen of Elie
Let me elaborate on the point for a moment to make it clear. IPSO did not exist in 1998; the editors’ code did and therefore the editors’ code was incorporated as such by reference to the 1998 Act and the 2000 order. The relevant editors’ code is now known as the IPSO code. It is essentially the same code, as I understand it. I see that the noble Lord, Lord Stevenson, is shaking his head on this point, but it is essentially the editors’ code that is now incorporated within the IPSO code.
Lord Stevenson of Balmacara
I could not resist jumping up. I think the nub of the argument is the four letters IPSO. It is an editors’ code. IPSO is a separate body. I think there would be less concern if it were just simply the editors’ code because we understand what that is. That would be the right reference, but I think we will return to this later.
Lord Keen of Elie
The terms of the editors’ code are now referred to as the IPSO code, but I take the noble Lord’s point and I will take away and consider whether there is any material issue about using the designation of that code in the schedule. However, it is, with respect, essentially the editors’ code as it was originally recognised. As I understand it, that is reflected in the Information Commissioner’s current guidance under reference to Section 32, which is why it appears in the schedule in the form that it does.
Lord Lester of Herne Hill
I shall be corrected in due course if I am wrong, but I think the position is that the editors’ code was the code that was formulated under the PCC, and then when Sir Alan Moses became chair of IPSO the code was then amended to strengthen it—but I shall be corrected if that turns out to be mistaken.
Lord Keen of Elie
The noble Lord is quite right that it had its origin as the editors’ code before the PCC, but I am reflecting the fact that the Information Commissioner, being aware of the genesis of that code and its approval, has, as I understand it, under current guidance under reference to Section 32 of the existing Act acknowledged it as a relevant code. It seems to me that we may be arguing around designation rather than content, and I will give further consideration to the question of designation.
Removing that code—I will call it “that code” for present purposes—as proposed in the amendments would be a quite extraordinary step. Whatever one might think of IPSO, we should recognise that it has more than 2,500 members, including most of the major tabloids and broadsheets. Removing the code from the Bill would therefore remove protections for the vast majority of our press industry and cause significant detriment to what is a free press.
No codes adopted by a Press Recognition Panel-approved regulator are listed—and of course there is only Impress in that context. Under current legislation the Information Commissioner’s guidance on Section 32 does not include that code. That does not mean that such a code cannot be included in the future. However, before amending the list of codes, the current and proposed legislation makes it clear that the Secretary of State must consult the Information Commissioner. The self-regulator Impress has applied for its standards code to be included in the schedule, and the Secretary of State is currently considering that application—but in due course, once she has considered the application, she will have to refer to the Information Commissioner and consult her about that application.
I should also emphasise that the current list of codes, allowing for the point about designation, does not represent an endorsement of any one press regulator over another. This is about ensuring that the codes listed are appropriate, having regard to the need for data protection.
It is also worth noting that the exemption the Bill provides to those processing data for special purposes will be available to all journalists where the criteria set out in paragraph 24(2) of Schedule 2 are met. Where a publication is subject to one of the listed codes of conduct, it must take that code into account when determining whether publication is in the public interest. However, although the commissioner’s current guidance emphasises that compliance with industry codes will help demonstrate compliance, those publications that are not subject to a code are not somehow excluded from qualifying under the relevant exemptions, if they meet the three-part test in paragraph 24.
I appreciate that the intention of Amendment 91 is to ensure that we interpret the notions relating to journalism broadly and, in doing so, protect the right to freedom of expression. However, there is no requirement for this amendment if one has regard to Clause 184, the relevant interpretation clause, which makes it clear and underlines that material need be available only to a section of the public, and that would include those who subscribe by way of a fee for particular access to material. So these exemptions will extend to the sort of body that was referred to by the noble Lord in relation to Amendment 91. If anything, there is duplication, because we have not only paragraph 24(9), which refers to the public and a “section of the public”, but Clause 184, which defines the public by reference to, and includes, a section of the public. I believe that there was an earlier proposal to take paragraph 24(9) out in order to avoid that duplication.
I turn to the amendment tabled by the noble Baroness, Lady Hollins, and supported by my noble friend Lord Attlee. Article 85 of the GDPR requires member states to reconcile the right of protection of personal data with the right to freedom of expression and information, which is of course embraced by the European Convention on Human Rights. Although like, clearly, other Members of the Committee, I have great sympathy for the noble Baroness’s own experience, I firmly believe that the Bill strikes the right balance in reconciling these interests and aligns with the requirements of the regulation.
By contrast, the proposed amendments seek to reset that balance, so that the right to personal information privacy trumps that of the right to freedom of expression and information. This would be inconsistent with Article 85, which recognises the special importance of freedom of expression and provides a wide power to derogate from the regulation for processing for the special purposes. That point was elaborated by the noble Lord, Lord Lester of Herne Hill, when he underlined the importance of the freedom of the press in this context.
Amendment 87A seeks to amend the journalistic data protection exemption to make it available only where the processing of data is necessary for publication, rather than simply being undertaken with a view to publication. I fear that this does not reflect the realities of how journalists work and how stories, including the most sensitive and important pieces of investigative journalism, are put together and published. A journalist will not know what is necessary until the data has been gathered, reviewed and assessed.
Amendments 87C and 87D relate to what factors the controller must take into account when considering whether publication of data would be in the public interest. The amendments would remove the requirement on the controller to take account of the special importance of the public interest in freedom of expression and information, and make the exemption available only where, objectively, the likely interference with privacy resulting from the processing of the data is outweighed by the public interest.
Controllers already have to consider issues of privacy when considering the public interest. But this amendment goes too far in saying that public interest can be trumped by privacy, weighting the test away from freedom of expression. This is again contrary to Article 85, which requires a reconciliation of these rights. I understand the noble Baroness’s intent here, and the harm that she seeks to prevent, but the rebalancing that she suggests goes too far.
Finally, Amendments 89B and 91A aim to narrow the exemptions for journalists who are not members of an approved regulator as defined by the Crime and Courts Act 2013. Fundamentally, these provisions are about protections that journalists should be able to legitimately rely on in going about their important work. We should view these clauses through that lens—as vital protections that give journalists the ability to inform us about the world in which we live and to effectively hold those in power to account.
The Government do not condone the past behaviour of individual media organisations, nor, as I noted earlier, do we seek to legitimise it. Equally, though, we do not think the problems that Sir Brian Leveson and others have identified can, or indeed should, be fixed through the medium of data protection law. Indeed, the Government feel strongly that these important protections for journalists should be maintained.
We must strike the right balance in reconciling the right to privacy with the right to freedom of expression and information. I hope I have gone some way towards explaining how the Bill seeks to do that. I hope I have addressed the concerns that have been expressed through the amendments, and I urge noble Lords to withdraw them.
Lord Stevenson of Balmacara
My Lords, this has been a very interesting debate. It has lasted one hour and 25 minutes and there is a little more to go. The hour is late and I do not think one wants to rush to judgment on the many important things that have been said today. As I am sure many other noble Lords do when faced with such an intense and important debate, I want to reflect a little on it, read what it looks like in Hansard the next day and then form a view on it. However, I shall share one or two things with the Committee that come to my mind and I think we should take away from this.
Of course this is about the balance between privacy and freedom of expression. It was interesting that the noble Lord, Lord Black, was at pains to point out in his intervention that he did not think there would be any country in which the sort of systems that are discussed in some of the amendments here took place. I ask him: is there a country that he would be happy to live in that did not have a statutory protection of privacy and freedom of expression, however well balanced and proportionate that would have to be? The answer would be very interesting.
My memories from this will be of the long campaign that the noble Baroness, Lady Hollins, has fought to try to get this troubled area of our law into better shape. The perhaps reluctant speech by the noble Lord, Lord McNally, in opening up the way for the noble Lord to debate issues relating to earlier approaches to this area, struck home for me. I thought it was a powerful intervention and one we should think hard about.
My ultimate feeling about this is that we may be talking about the very narrow issue of data processing in relation to journalism, but of course it engages all the issues that arise from any decision that we make about the balance between privacy and freedom of expression. As I tried to demonstrate in the discussions on day one of Committee, if there were better protections between a right to privacy and the right to freedom of expression than there currently are in the Bill, maybe this would be an easier process, but they are not there yet. We need some movement here. The genuine offer that I made to the noble and learned Lord to try to find common ground on this and move forward, which was picked up by others, seems to have been rejected. That is sad, and we will not get very far if that is the attitude we are going to encounter.
At the end of the day, we may not have a choice on this. If Parliament is unable to act, it may well be that the privacy law we end up with will be judge-led, arising from cases that happen to come in, out of which a body of law will be built up that does not suit the noble and learned Lord and his friends. He should think very carefully about where we are at the moment, where the political power lies, where the interests of those engaging with this are coming from and how long it would be before we got to a point where we could take this forward.
I think we will come back to this on Report more than once. There are issues here that will survive the helpful comments made by the noble and learned Lord, who covered the detail of the amendments very fully. I will read what he said very carefully. I do not think we have got to the bottom of how you get the balance in law for a long time so that it works. It is not to do with definitions of which code or otherwise we are talking about; we are talking about real principles here that need to be addressed.
Baroness Hollins
My Lords, I want to make a couple of comments. I take exception to the suggestion that my amendments are in some way bullying. If anything, it is the newspapers that are bullying: for example, bullying the Government not to commence Section 40 of the Crime and Courts Act 2013. This is not the wrong Bill: it is about data protection. All that my amendments would do is implement Lord Justice Leveson’s recommendations on data protection. It is a data protection Bill, and that is what they are about.
The so-called IPSO code is owned by the Regulatory Funding Company and, as I understand it, only its sub-committee can change it. IPSO then has to take it or leave it. The RFC also refused to allow IMPRESS to use it. It seems very strange to have that code named in the Bill. I will think carefully and review what needs to come back on Report, but I would welcome an opportunity to discuss this further with the noble and learned Lord to try to understand why there is such a difference of view about it.
Lord Skidelsky
I should like to make just one point. The noble and learned Lord, Lord Keen, came close to admitting that to put IPSO in the Bill was a mistake—I say came close to admitting—whereas it would have been perfectly all right to have just said, “the editors’ code”. There is something there to discuss, because if you call it the IPSO editors’ code, that looks as if you are favouring a particular organisation, rather than a code. The code is owned by the newspaper publishers; it is their code; we need to take that into account. It is less obnoxious just to have “the editors’ code”, than to have an organisation named in the Bill as the effective carrier of that code. I do not know whether the noble and learned Lord is willing to consider leaving out mention of the organisation. If so, it would be interesting to discuss how best to do that. I may come back to this on Report, but thank him very much for his speech.