Wednesday 10th January 2018
(6 years, 3 months ago)
Lords ChamberData Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Amendment Paper: HL Bill 74-III Third marshalled list for Report (PDF, 153KB) - (8 Jan 2018)
16:36 - Division on Amendment 107B - Ayes: 235 / Noes: 204 - Amendment 107B agreed.
18:50 - Division on Amendment 127A - Ayes: 238 / Noes: 209 - Amendment 127A agreed.
19:10 - Division on Amendment 147 - Ayes: 217 / Noes: 200 - Amendment 147 agreed.
Lord Ashton of Hyde
(a) by adding conditions; (b) by omitting conditions added by regulations under paragraph (a).”
Lord Ashton of Hyde
“( ) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (5) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
(a) by adding conditions;(b) by omitting conditions added by regulations under paragraph (a).”
Lord Ashton of Hyde
“(1) The Secretary of State may by regulations amend Schedule 11 —(a) by adding exemptions from any provision of this Part;(b) by omitting exemptions added by regulations under paragraph (a).”
Lord Puttnam (Lab)
My Lords, the last time I cleared a room like this, it was a very bad film indeed.
Amendment 103A is connected to Amendments 103B, 103C, 124A, 124B and 125A, and I move it with the support of my noble friend Lord Stevenson and the noble Lords, Lord Clement-Jones and Lord Holmes. In a well-run world, this group of amendments should not really need to be moved or pressed. They are designed purely to ensure that we have the data commissioner—and the office of that commissioner—that we need. Frankly, they are the natural consequence of all the debates that have occurred during the passage of the data protection legislation.
There can be no more important role over the next few years than that of the Data Commissioner. The organisation she is being asked to regulate is the largest in the world. A quite extraordinary statistic is that the four largest companies—Google, Amazon, Facebook and Apple—have between them a larger market capitalisation than the FTSE 100. That is the scale of the businesses we are asking the Data Commissioner to regulate. At the same time, under the Bill at present the resources available to her are wholly inadequate to that task. We went through a similar operation 15 years ago with Ofcom, and out of that, and through the collective wisdom of this House, we were able to ensure that Ofcom had the resources to become what is genuinely the gold standard of any media and telecoms industry regulator in the world. That is an achievement of this House of which we should be very proud. The purpose of these amendments is to achieve exactly the same for our ICO—something we can be proud of and that can do the job given to it.
During the passage of the Bill, we have loaded the ICO with significant new and additional responsibilities. The idea that we might have an underfunded and underresourced regulator that is not adequate to the task we are giving it is unthinkable. The purpose of these amendments is to prevent that. I could go on at some length, but I think the mood of the House is that it wishes to move on, so I shall listen to the Minister’s response. I beg to move.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, it might be for the convenience of the House if I speak now as I have some information which may help the noble Lord, Lord Puttnam, and other noble Lords who have put their names to these amendments.
As I have repeatedly said during the debates on the Bill, the Government are committed to ensuring that the commissioner has adequate resources to fulfil her role as a world-class regulator and to take on the extra regulatory responsibilities set out in this Bill, so I agree with pretty well everything the noble Lord said. That is why we legislated for a new, GDPR-compliant charging regime in the Digital Economy Act, which we will turn to in the next group, but it is also why the commissioner needs to be able to recruit and retain expert staff.
I am therefore very pleased to announce that the Government have today granted the Information Commissioner’s Office pay flexibility up to 2020-21 so that it can review its pay and grading structure. The commissioner will have the independence to determine the levels of pay necessary for the ICO to maintain the expertise it needs to fulfil its new and revised functions as a supervisory authority, subject to the standard public spending principles. I am also pleased to say that the Information Commissioner has agreed these arrangements. She said:
“I welcome the positive response to my business case for pay flexibility at the ICO. I am confident that this will allow me to prepare the ICO for its critical role under the new data protection regime ensuring that the UK has a strong and expert regulator in an area recognised for its importance to the digital economy and society as a whole”.
This flexibility underscores the UK’s commitment to an independent and effective data protection regulator, and I think goes a long way in responding to the points raised by the noble Lord’s amendments. We all want an efficient, well-resourced ICO, so I am very pleased that this agreement has been reached. I should have said at the outset that I am very grateful to the noble Lord for coming to talk to me about it. I am glad to say he was pushing at an open door.
Lord Puttnam
I thank the noble Lord, who has been extraordinarily generous with his time. He and his officials could not have been more helpful in reaching what I regard as a perfectly satisfactory conclusion. My only wish is that we have a regulator that can do the job required of it and tackle the abuses along the way confidently and competently. I am extraordinarily grateful for this outcome. I am very happy to withdraw the amendment.
Lord Ashton of Hyde
“(and see also the Commissioner’s duty under section (Protection of personal data))”
Lord Ashton of Hyde
Lord Stevenson of Balmacara (Lab)
My Lords, the noble Lord, Lord Deben, said that a small number of people do everything in small communities. It sometimes feels like that here. I do not think that we need to say much more; all the issues have been raised and I am sure that when he responds, the Minister will answer some, if not all, of the questions. The underlying theme is that we do not want to spoil what is a very good Bill with desirable aims by failing to pick up all the areas that it needs to address, because there will be benefits from it, as we have heard. I think that the Government understand that, but they must not be in the position of willing the ends of policy without also willing the means.
Lord Ashton of Hyde
My Lords, I am grateful to all noble Lords who have spoken. I begin by thanking my noble friend Lady Neville-Rolfe, my predecessor in this role, for once again bringing the topic of small businesses to the House’s attention. Other noble Lords have extended that from small businesses to small organisations—indeed, even clans. While I am on the important subject of the clan, the noble Earl asked whether they would be classed as small organisations. I am sure that they are not small, but the answer is yes, they will be subject to the provisions of the GDPR.
The serious, general reason is that the GDPR, which is EU legislation which comes into direct effect on 25 May, is there to protect personal data. We must remember that the importance of protecting people’s personal data, particularly as it has developed since the most recent Data Protection Act was passed in 1998, has extended dramatically and concerns very personal items that belong to people. That is why it does not entirely matter whether it is a small or large organisation. Public authorities, such as parish councils, and other small organisations, such as charities, must take personal data seriously. They have obligations under the existing Act, but under the GDPR, they have more, and that is why. However, I and the Government instinctively support small organisations where we have it in our power to do so. I shall return to some of the specific points later.
I thank my noble friend for bringing this matter to the House’s attention and for coming to discuss it at length; I welcome this opportunity to provide some reassurance. As I have said at previous stages of the Bill, I wholeheartedly agree that the Government should recognise the concerns of the smallest organisations and continuously look at ways to support them through the transition to a new data protection framework. The amendments tabled by my noble friend have all been designed with small organisations, charities and parish councils in mind.
Before I address each amendment in turn, I remind noble Lords that the Information Commissioner’s Office already produces a variety of supportive materials intended to help organisations of all sizes to navigate their way to data protection compliance. I strongly encourage businesses to consult these, and to make use of the commissioner’s new dedicated helpline, provided specifically for small organisations. I am pleased to say, in answer to my noble friend Lord Marlesford and, in part, to my noble friend Lord Deben, that the Information Commissioner has agreed to issue advice to parish councils, which will be published shortly. That is one of the organisations to which my noble friend referred. I understand exactly what he is saying, as I live in a small village and my wife is a parish councillor. I assure noble Lords that the issues of the Data Protection Act in relation to parish councils have been aired vociferously, and not only in this Chamber.
In addition, it is worth noting that the process for paying annual charges to the commissioner will become simpler and less burdensome, which I am sure will come as welcome news to small organisations—but we will return to that point shortly.
Amendment 106 would add a new clause that would give the Information Commissioner a duty to provide additional support to small businesses, charities and parish councils to meet their requirements under the GDPR. This may include, among other things, additional advice and discounted fees paid to the commissioner. I think that my noble friend Lord Marlesford, raised a point earlier on, and I hope that it will be helpful if I put it on record that parish councils can share duties like a data protection officer, which is a public authority that they have to have, under the GDPR, with other parish councils as well as with district councils. Parish clerks can also fulfil that role.
While I agree with my noble friend that small organisations should be supported to meet new obligations under the GDPR and this Bill, I cannot agree with the obligations that that would place on the commissioner. As I mentioned earlier, the commissioner has already published a wide breadth of guidance online and is continuing to develop this guidance as we near the date of GDPR implementation. I mentioned an example just now. Only recently, she updated her small business portal to make it easier for organisations to access GDPR-related resources. Given that the commissioner is already so active in this field, which the Government and, I think, my noble friend fully support, I fear that additional prescriptive requirements would distract rather than contribute.
Lord Storey (LD)
While the Minister is responding on this issue—I was not allowed to move Amendment 87A because somebody shouted out “not moved” when it was in fact not moved by myself—could he include schools in his comments?
Lord Ashton of Hyde
We were going to have a debate on that—I gather that the Liberal Democrats did not want to bring it forward—but the basic answer is that schools have responsibilities under the GDPR. They particularly have responsibility for personal data relating to children; they already have extensive responsibilities under the current Data Protection Act. So it is very much an issue for schools. In this case, to help them, the Department for Education is going to provide guidance—and I am assured that it will be out very soon. So they have particular responsibilities. The kind of personal data that they handle on a regular basis is very important; I believe that the noble Lord, Lord Clement-Jones, mentioned an example of some of the personal data that they hold in relation to free school meals, which has to be protected and looked after carefully. One benefit for the school system, as far as other organisations are concerned, is that they will have central guidance from the Department for Education—and I repeat that that is due to come out very soon.
I turn to Amendment 125, also proposed by my noble friend. It seeks to introduce a requirement on the Secretary of State, when making regulations under Clause 132, to consider making provision for a discounted charge—or no charge at all—to be payable by small businesses, small charities and parish councils to the Information Commissioner. Clause 132(3) already allows the Secretary of State to make provision for cases in which a discounted charge or no charge is payable. The new charge structure will take account of the need not to impose additional burdens on small businesses. This may include a provision in relation to small organisations.
I am happy to confirm that the Government have given very serious consideration to the appropriate charges for smaller businesses as part of the broader process for setting the Information Commissioner’s 2018 charges. The new charge structure will take account of the need to not impose additional burdens on small businesses. It is important to note, however, that small and medium organisations form a significant proportion of the data controllers currently registered with the ICO—approximately 99%, in fact. The process of determining a new charge structure is nearly complete and we will bring forward the resulting statutory instrument shortly. I would, however, like to put one thing on the record: in putting together that charging regime, we have been mindful of the need to ensure that the Information Commissioner is adequately resourced during this crucial transitional period, but I want to be clear that the Government do not consider the 2018 charges to be the end of the story. There may well be more we can do further down the line to modernise a regime that has not been touched for the best part of a decade.
Amendment 127 would place an obligation on the commissioner, in her annual report to Parliament, to include an economic assessment of the actions that the commissioner has taken on small businesses, charities and parish councils. I agree with my noble friend about the importance of the commissioner being aware of the impact of her approach to regulation during this crucial period. As I said to the commissioner when we met, we must nevertheless also be mindful of maintaining her independence in selecting an approach. Even if we did not think that having an independent regulator was important—I want to be clear: we do —articles 51 to 59 of the GDPR impose a series of particular requirements in that regard. But, all of the above notwithstanding, I agree with a lot of what my noble friend has said this afternoon.
Turning to amendment 107A, in the name of the noble Lord, Lord Clement-Jones, concerning the registration of data controllers, I remember the Committee debate where the noble Lord tabled a similar amendment. I hope that I can use this opportunity to provide further reassurance that it is unnecessary. The Government replaced the existing notification system with a new system of charges payable by data controllers in the Digital Economy Act. We did this for two reasons. First, the new GDPR has done away with the need for notification. Secondly, and consequentially, we needed a replacement system to fund the important work of the Information Commissioner. All this Bill does is re-enact what was done and agreed in the Digital Economy Act last year. We legislated on this a year earlier than the GDPR would come into force because changes to fees and charges need more of a lead time to take effect. As I have already said, these new charges must be in place by the time the GDPR takes effect in May and we will shortly be laying regulations before Parliament which set those fees.
Returning to the subject matter of the amendment, under the current data protection law, notification, accompanied by a charge, is the first step to compliance. Similarly, under the new law, a charge will also need to be paid and, as under the previous law, failure to pay the charge is enforceable. We have replaced the unwieldy criminal sanction with a new penalty scheme—found in Clause 151 of the Bill.
Lord Clement-Jones
My Lords, can the Minister explain what the trigger is for the payment of the fees?
Lord Ashton of Hyde
A charge will need to be paid if you are the data controller.
Lord Clement-Jones
That is not what I meant. That is not a trigger; it is notification by the data controller.
Lord Ashton of Hyde
If you process and control data, you will need to make a notification to the data commissioner. I do not understand why that is not a trigger.
Lord Ashton of Hyde
Exactly, so my point, which I was coming to but which the noble Lord has very carefully made for me, is that, in doing this, the Information Commissioner will obviously keep a list of the names and addresses of those people who have paid the charge. The noble Lord may even want to call that a register. The difference is, unlike the previous register, it will not have all the details included in the previous one. That was fine in 1998, and had some benefit, but the Information Commissioner finds it extremely time-consuming to maintain this. In addition, as regards the information required in the existing register, under the GDPR that now has to be notified to the data subjects anyway. Therefore, if the noble Lord wants to think of this list of people who have paid the charge as a register, he may feel happier.
I have talked about the penalty sanction. When the noble Lord interrupted me, I was just about to say—I will repeat it—that the commissioner will maintain a database of those who have paid the new charge, and will use the charge income to fund her operation. So what has changed? The main change is that the same benefits of the old scheme are achieved with less burden on business and less unnecessary administration for the commissioner. The current scheme is cumbersome, demanding lots of information from the data processors and controllers, and for the commissioner, and it demands regular updates. It had a place in 1998 and was introduced then to support the proper implementation of data protection law in the UK. However, in the past two decades, the use of data in our society has changed dramatically. In our digital age, in which an ever-increasing amount of data is being processed, data controllers find this process unwieldy. It takes longer and longer to complete the forms and updates are needed more and more often, and the commissioner herself tells us that she has limited use for this information.
My hope is that Amendment 107A is born out of a feeling shared by many, which is to a certain extent one of confusion. I hope that with this explanation the situation is now clearer. When we lay the charges regulations shortly, it will, I hope, become clearer still. The amendment would simply create unnecessary red tape and may even be incompatible with the GDPR as it would institute a register which is not required by the GDPR. I am sure that cannot be the noble Lord’s intention. For all those reasons, I hope he will withdraw the amendment.
Baroness Neville-Rolfe
I thank the Minister for going into the issues in such detail, and for the support that is now being offered by the ICO through the transition. We have heard about the helpline, the websites, and new guidance—not only for parish councils, which I regard as a major breakthrough, but for small business and schools. That is all very good news. There will be a charge but it will be modulated, as I understand it, in a way to be decided and brought before the House in an order. I think the Minister understands the wish of this House not to load lots of costs on smaller businesses as a result of this important legislation, which we all know is necessary for a post-Brexit world.
My only concern related to the Minister’s comments on what we might put into the report, because he rightly said that the Information Commissioner had to be independent, which I totally agree with. Equally, I thought that without undermining her independence, it was possible to ask her to report on economic matters and, for example, on how business learns about data protection and how that is going. I do not know whether he is able to confirm that today, but he made a point about independence and it was not clear whether it would be possible to put something into the reporting system.
Lord Ashton of Hyde
We are keen that the Information Commissioner be independent and is seen to be independent, and I know that the commissioner herself is aware of that. I cannot commit to anything today, but I will certainly take back my noble friend’s question and see what can be done while maintaining the Information Commissioner’s independence.
Baroness Neville-Rolfe
On that basis, I am happy to beg leave to withdraw my amendment.
Lord Stevenson of Balmacara
My Lords, in earlier amendments I have tried to interest the Government in the idea of establishing what I loosely call a copyright of one’s personal data. Another possibility put forward in a different amendment is that one could think of data provided by individuals as matters that would be controlled by them through the role of a data controller. I am not trying to be in any sense critical of the Government’s response to this but I think I was ahead of my time—a nice place to be if you can—and I do not think the idea is quite ready to be turned into legislative form. I suspect that the solution lies in a data ethics commission, an idea that we will come to later in the agenda. Such a commission may be established by statute, either today or through some future legislative process, so that we can begin to think through these important issues. I was interested in a lot of what the noble Lord, Lord Mitchell, said in his introduction of the amendment because it has bearing on these issues.
I agree with the noble Lord, Lord Clement-Jones, that we are not quite there yet. However, worrying issues have been raised that need to be addressed, particularly in relation to data that is acquired, used and commercially exploited without necessarily being certain that we are getting value for money from it. The amendments are relatively mild in their exhortations to the Government, but they certainly point the way to further work that should be done and I support them.
Lord Ashton of Hyde
My Lords, I am grateful to the noble Lord, Lord Mitchell, for taking the time to come and see me to explain these amendments. We had an interesting conversation and I learned a lot—although clearly I did not convince him that they should not be put forward. I am grateful also to the noble Lords, Lord Clement-Jones and Lord Stevenson, who said, I think, that there may be more work to do on this—I agree—and that possibly this is not the right time to discuss these issues because they are broader than the amendment. Notwithstanding that, I completely understand the issues that the noble Lord, Lord Mitchell, has raised, and they are certainly worth thinking about.
These amendments seek to ensure that public authorities—for example, the NHS—are, with the help of the Information Commissioner, fully cognisant of the value of the data that they hold when entering into appropriate data-sharing agreements with third parties. Amendment 107B would also require the Information Commissioner to keep a register of this data of “national significance”. I can see the concerns of the noble Lord, Lord Mitchell. It would seem right that when public authorities are sharing data with third parties, those agreements are entered into with a full understanding of the value of that data. We all agree that we do not want the public sector disadvantaged, but I am not sure that the public sector is being disadvantaged. Before any amendment could be agreed, we would need to establish that there really was a problem.
Opening up public data improves transparency, builds trust and fosters innovation. Making data easily available means that it will be easier for people to make decisions and suggestions about government policies based on detailed information. There are many examples of public transport and mapping apps that make people’s lives easier that are powered by open data. The innovation that this fosters builds world-beating technologies and skills that form the cornerstone of the tech sector in the UK. While protecting the value in our data is important, it cannot be done with a blunt tool, as we need equally to continue our efforts to open up and make best use of government-held data.
In respect of health data, efforts are afoot to find this balance. For example, Sir John Bell proposed in the Life Sciences: Industrial Strategy, published in August last year, that a working group be established to explore a new health technology assessment and commercial framework that would capture the value in algorithms generated using NHS data. This type of body would be more suitable to explore these questions than a code of practice issued by the Information Commissioner, as the noble Lord proposes.
I agree that it is absolutely right that public sector bodies should be aware of the value of the data that they hold. However, value can be extracted in many ways, not solely through monetary means. For example, sharing health data with companies who analyse that data may lead to a deeper understanding of diseases and potentially even to new cures—that is true value. The Information Commissioner could not advise on this.
That sharing, of course, raises ethical issues as well as financial ones and we will debate later the future role and status of the new centre for data ethics and innovation, as the noble Lord, Lord Stevenson, mentioned. This body is under development and I am sure that this House would want to contribute to its development, not least the noble Lord, Lord Clement-Jones, and his Select Committee on Artificial Intelligence.
For those reasons, I am not sure that a code is the right answer. Having heard some of the factors that need to be considered, I hope the noble Lord will not press his amendment.
Perhaps I may offer some further reassurance. If in the future it emerged that a code was the right solution, the Bill allows, at Clause 124, for the Secretary of State to require the Information Commissioner to prepare appropriate codes. If it proves better that the Government should provide guidance, the Secretary of State could offer his own code.
There are technical questions about the wording of the noble Lord’s amendment. I will not go into them at the moment because the issues of principle are more important. However, for the reasons I have given that the code may not be the correct thing at the moment, I invite him to withdraw his amendment.
Lord Mitchell
My Lords, I thank all noble Lords for their contributions to this short debate. I also thank the Minister for agreeing to see me prior to the Recess and for his comments today. However, this is an issue of precision—and we need precision on the statute book. All that has been suggested to me, which is that it can be found elsewhere or will be looked at in the future, does not give the definitive answer we require. That is why I would like to test the opinion of the House.
Lord Ashton of Hyde
Lord Ashton of Hyde
“Records of national security certificatesRecords of national security certificates
(1) A Minister of the Crown who issues a certificate under section 25, 77 or 109 must send a copy of the certificate to the Commissioner.(2) If the Commissioner receives a copy of a certificate under subsection (1), the Commissioner must publish a record of the certificate.(3) The record must contain—(a) the name of the Minister who issued the certificate,(b) the date on which the certificate was issued, and(c) subject to subsection (4), the text of the certificate.(4) The Commissioner must not publish the text, or a part of the text, of the certificate if—(a) the Minister determines that publishing the text or that part of the text—(i) would be against the interests of national security,(ii) would be contrary to the public interest, or(iii) might jeopardise the safety of any person, and(b) the Minister has notified the Commissioner of that determination.(5) The Commissioner must keep the record of the certificate available to the public while the certificate is in force.(6) If a Minister of the Crown revokes a certificate issued under section 25, 77 or 109, the Minister must notify the Commissioner.”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, government Amendment 118 responds to an amendment tabled in Committee by the noble Baroness, Lady Hamwee. I said then that I recognised the concern that had been expressed about the lack of transparency as regards national security certificates and that I would consider what more could be done to address this.
Having reflected carefully on that debate, and on representations from the Information Commissioner, I am pleased to move Amendment 118 to address this issue. It inserts a new clause into Part 5 of the Bill which requires a Minister of the Crown who issues a certificate under Clauses 25, 77 or 109 to send a copy of the certificate to the Information Commissioner, who must publish a record of the certificate. We would normally expect the published record to be a copy of the certificate itself. As I indicated in Committee, a number of the existing certificates are already available online.
As an important safeguard under the new clause, the commissioner must not publish the text or part of the text of the certificate if the Minister determines, and has so advised the commissioner, that to do so would be against the interests of national security or contrary to the public interest, or might jeopardise the safety of any person. Where it was necessary to redact information in a particular certificate, there would still be a public record of the certificate as set out in subsection (3) of the new clause. While in practice we expect that most certificates will continue to be published in full with no need for such restrictions, as is currently the case, this provides an important safeguard where it is necessary for a certificate to include operationally sensitive information. The commissioner must keep the record of the certificate available to the public while the certificate is in force, and if a Minister of the Crown revokes a certificate the Minister must notify the commissioner.
In the Information Commissioner’s briefing to this House on the Bill, she stated that there should be a presumption in favour of placing national security certificates in the public domain where to do so would not damage national security. She also noted that adopting a provision requiring her to be notified when a certificate was issued would provide a further safeguard to help inspire public confidence in regulatory oversight. I agree with her.
We have listened to concerns, and trust that this amendment will be widely welcomed. Indeed, it is worth recording that the ICO’s latest briefing on the Bill said that the amendment was,
“very welcome as it should improve regulatory scrutiny and foster greater public trust and confidence in the use of national security certificate process”.
I beg to move.
Amendment 118A (to Amendment 118)
Lord Ashton of Hyde
“(2) But this section does not authorise the making of a disclosure which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016. (3) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (2) has effect as if it included a reference to that Part.”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Stevenson of Balmacara
My Lords, I sense that the House wishes to move on, to hear from the Minister and move to the inevitable vote, which I think would be a good thing for all of us. Therefore I will not speak at length. We have had a really important debate today, ranging from the deeply personal to the high realms of public policy, and it is very hard to find a balancing point at which we might, as the noble Lord, Lord McNally, has just said, actually find a reason for dividing on the various issues. It is complicated and multilayered. It is also time-sensitive and there are very inconvenient issues in the way. However, one can dig down a little and start with the fact that the Bill, as I have always said and will continue to say, is not the right Bill to solve all the problems in relation to press regulation in the future. It is a Bill about data protection and although it has elements that obviously bear on everything we have been saying today and in the previous debates around the need to balance the rights to privacy against those of freedom of expression, it is not a complete picture and we should not think it is.
It is important that we learn our lessons and move forward. We have an existing framework, set out in the Data Processing Act 1998. It has worked well; it has been said that it will work well in future, and the Bill establishes that again as the basic understanding on which we operate. I welcome that, but we are uncertain about how the issues that were raised between 2010 and 2013, the period that led to Leveson 1, are going to be resolved in the Bill—maybe they cannot be. They include the need to ensure that, for all time, there is an effective redress mechanism for those affected by illegality and bad culture in the press, and that we should understand and learn the lessons of what has happened in the past. We certainly have a lot of information but I do not think we have a full understanding of it all.
As has been said by a number of noble Lords, we must anticipate changes that are in train for the new media, the media sources of information and news and the changes in consumption. We have to explore—this is really important—how we sustain our huge tradition of quality journalism without which this democracy would be a shadow of its current self. My noble and learned friend Lord Falconer, in a very powerful speech, said we need to go back and rethink what we were thinking at the time Leveson was set up, the promises that were made and the impact it will have on the country if we do not deliver on those promises. We promised the completion of the Leveson inquiry. Whether it is Leveson 2 or another inquiry is a lesser point than the need to honour that promise. Too many people are relying on it, too many people will be upset if it does not happen and we will all be the losers.
The noble Viscount, Lord Hailsham, said that this is really a policy issue, not an issue around data processing: noble Lords will have understood from what I said earlier that I agree with him. The problem is that we do not control policy—we are unable to put any pressure on that. The victims do not control policy. The Cross-Benchers and Liberal Democrats do not. The Government control policy but successive Governments have seemed unable to move forward. I happen to think, from private conversations, that a lot more unites us on this issue than divides us across this Dispatch Box.
I would welcome some words from the Minister explaining precisely what will be the way forward. However, I do not think he will be able to do that, for all the reasons that have been given about the inconvenience of timing, the difficulty about cutting across other measures that are in place and the need to think through some implications. I am sympathetic, but the problem is that we need action; we need to move this forward, and the only power we have is to put an inconvenient roadblock in the current thinking. That is why I support the amendment in the name of the noble Baroness, Lady Hollins, and I will support—although I think that they are probably not the whole story—the amendments in the name of the noble Earl, Lord Attlee. It is important that the Government own up to the fact that this is a problem of their own making, show that they understand the issues and take action.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Government recognise that there is great deal of passion and genuine concern on all sides of the debate and on all sides of the House on these matters. I am obliged to the noble Baroness, Lady Hollins, for the passionate way in which she advanced her argument on these amendments, and also to the noble Earl, Lord Attlee. Casting my mind back to my limited experience in government—and limited it is—I am slightly perplexed. Usually, Government are accused of seeking to avoid issues or hard decisions and of kicking matters into the long grass by proposing an inquiry. For me, it is a novelty that the matter should be reversed in this fashion. Indeed, I note that a number of noble Lords have made the same observation in various ways in the course of this debate. For us, it is a matter of concern that we should move forward and look at how we can maintain a suitable, appropriate and respectable media for this country, but also the freedom of that media, which underpins our democracy.
It is appropriate to notice that the media landscape has changed significantly since the Leveson inquiry was set up. We have witnessed the completion of three detailed police investigations, extensive reforms to policing practice and significant changes to press self-regulation, which have moved on even further in the recent past, with the changes to IPSO. Of course, we have seen that civil remedies, civil proceedings, provide an effective route for parties, particularly in the context of litigation where conditional fee agreements are available. The Government published a consultation in November 2016 to look at whether part 2 of the Leveson inquiry was still appropriate and, indeed, proportionate and in the public interest.
I note that date, November 2016, because one noble Lord referred to the delay. I just make the point, which I have made before, that progress on that consultation was delayed because the Secretary of State was subject to an application for judicial review with respect to the consultation process. It was not a case of the Government trying to delay that process; we were really quite anxious to bring it forward. Once we were able to proceed with that consultation process, we received more than 174,000 responses. That in itself demonstrates the depth and strength of public feeling on this issue.
We are currently consulting with Sir Brian Leveson as the chair of the inquiry. Sir Brian has asked to see the results of the consultation, along with individual responses to the consultation that were submitted by core participants in the Leveson inquiry. I notice that the noble and learned Lord, Lord Falconer, observed that Sir Brian’s views need to be canvassed. I entirely agree: that is what we are in the process of doing at the present time. It is not only right that his views should be canvassed in this context, it is actually necessary. The Leveson inquiry has not been terminated; it proceeds under the Inquiries Act 2005 and it cannot be brought to an end until the Government have formally consulted Sir Brian and considered his comments with an open mind on how to proceed further. That consultation is in train. When Sir Brian has shared his formal views with us, we will look to publish the Government’s response to the consultation. It would be our intention, subject to Sir Brian’s views, to publish his response at that time as well, in order that that can be in the public domain.
Amendment 127A in the name of the noble Baroness, Lady Hollins, assumes that the existing inquiry will be brought to an end, but, as I say, that decision has not—indeed cannot—be taken at this stage. If, for example, Sir Brian produces compelling reasons for proceeding with part 2 of the inquiry in some shape or form, the Government would have to give reasonable consideration to those representations and will do so. However, we clearly do not need two public inquiries going on at the same time into the same issues: that is where we would end up, on one view of this process. We have to take events in their proper order and this amendment is plainly not in its proper order; it is plainly premature and cuts across the present statutory process that is being carried on pursuant to the Inquiries Act 2005.
However, I emphasise that the Government are determined to address the challenges of the new media landscape in which we all live—not just the obvious printed media but the digital media and the issues that turn on that. We are in the process of developing a digital charter to ensure that new technologies work for the benefit of everyone, with rules and protections in place to help keep people safe online and ensure that personal information is used appropriately. We are also working to deliver on a commitment to ensure a sustainable business model for high-quality media online. Again, that underpins freedom of expression and our democratic way of life.
These are matters of active consideration for the Government. It is in these circumstances that I emphasise that the noble Baroness’s amendment is not appropriate at the present time and would simply lead to confusion in this already difficult landscape. Let us move on: let us complete the process in which we are currently engaged; let us receive Sir Brian’s representations with regard to the consultation process; let the Government make a decision by way of their response to that consultation; let us look at it—the idea that it would not be examined in this House is almost mythical, to be perfectly candid. Of course it will come under scrutiny in this House. I would be amazed if it were simply to pass unnoticed in the night. There can be no question at all of that happening.
Turning briefly to Amendments 147 and 148, again, I recognise that these are modelled on Section 40 of the Crime and Courts Act 2013 and I recognise that Section 40, and press regulation more generally, is a matter that people have incredibly strong—and diverse and conflicting—opinions about. I understand and appreciate the work that the noble Baroness, Lady Hollins, has done in this area and I appreciate her own personal exposure to the difficulties that have emerged in the past with regard to the abuse and misuse of personal data. Again, I reassure noble Lords that the Government are firmly committed to ensuring that the sort of behaviour that led to the Leveson inquiry never happens again. We are determined to address that.
However, we cannot ignore the various concerns that have been raised regarding Section 40. I am not going to go into the issue of convention compliance or any technical issues about that; nor will I elaborate upon the point that Section 40 does, albeit by agreement between various parties, go further than the actual recommendations in Lord Justice Leveson’s original report. Again, that is why the Government have issued their consultation, which will look, among other things, at Section 40 of the 2013 Act. That matter will be addressed. As I say, the Government will publish their response to the consultation shortly. When I use a term such as “shortly” I see some rolling of eyes but let me be clear: the response to the consultation will await the opportunity for Sir Brian to make his own submissions. We will then give due consideration to those, as we will to the 174,000 responses to the consultation.
We understand the serious nature of the matter before us and it will be fully addressed but we do not believe that at this time it is appropriate to advance a provision similar to Section 40 but only in relation to data protection. There is a much wider issue at stake here and that is the issue that needs to be properly addressed and bottomed out. At the end of the day it would not be appropriate simply to carve out one provision on data protection for the purposes of this Bill in order to replicate the sorts of provisions that we see in Section 40 of the 2013 Act.
Of course we have to cast our minds to the abuses of the past but if we are going to make effective policy we have to look to the future and determine how the balance of interests is going to be achieved between the right to data protection, the right to privacy and the need to maintain a free and vibrant media and free expression. These amendments cut across the proper process that we are now following regarding part 2 of the Leveson inquiry and Section 40 of the 2013 Act. That work is ongoing. Of course we are determined to maintain that work and to bring it to a conclusion. This is not the time or the mechanism by which to try to address these issues. I fear that doing so would complicate an already complex picture. I urge noble Lords to withdraw or not move their amendments.
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde
“Approval of first guidance about regulatory action
(1) When the first guidance is produced under section 153(1)— (a) the Commissioner must submit the final version to the Secretary of State, and(b) the Secretary of State must lay the guidance before Parliament.(2) If, within the 40-day period, either House of Parliament resolves not to approve the guidance—(a) the Commissioner must not issue the guidance, and(b) the Commissioner must produce another version of the guidance (and this section applies to that version).(3) If, within the 40-day period, no such resolution is made—(a) the Commissioner must issue the guidance, and(b) the guidance comes into force at the end of the period of 21 days beginning with the day on which it is issued.(4) Nothing in subsection (2)(a) prevents another version of the guidance being laid before Parliament.(5) In this section, “the 40-day period” means—(a) if the guidance is laid before both Houses of Parliament on the same day, the period of 40 days beginning with that day, or(b) if the guidance is laid before the Houses of Parliament on different days, the period of 40 days beginning with the later of those days.(6) In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.”
Lord Ashton of Hyde
Lord Ashton of Hyde
Lord Ashton of Hyde