Monday 5th March 2018
(6 years, 8 months ago)
Commons ChamberData Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 77-I Marshalled list for Third Reading (PDF, 71KB) - (16 Jan 2018)
The Secretary of State for Digital, Culture, Media and Sport (Matt Hancock)
I beg to move, That the Bill be now read a Second time.
This House has a noble track record of working with rather than against technology. Whether it was the Electric Lighting Act 1882, which paved the way for electricity in the 19th century, or the Television Act 1954, which opened up our airwaves to commercial TV broadcasters in the 20th century, we have always helped pioneers to overcome obstacles and to use technology to make life better. The Data Protection Bill will do this, too. It will give people more power and control over their online lives while supporting innovation and entrepreneurship in the digital age, helping to make Britain fit for the future.
The Bill will deliver real benefits across the country, helping our businesses to compete and trade abroad. Strong data protection laws give consumers confidence in the products and services that they buy, and that is good for business, not bad. The Bill provides a full data protection framework as we leave the EU, consistent with the general data protection regulation in EU law. In October, the House debated how our data protection landscape will look after we leave the EU. Members on both sides agreed that the unhindered flow of data between the UK and the EU is vital and in the interests of both. Through today’s Bill, we can make that a reality.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
I am grateful to the Secretary of State for his opening remarks about the importance of the House supporting technology. He will know that data drives our economy and society in ways that people can find difficult to follow. The internet of things will increase exponentially the data trail we all leave, but the digital charter suggests only that private companies follow best practice. Does he not recognise the importance of data rights? Why is he not bringing forward a Bill of data rights?
Matt Hancock
I absolutely do, and the Bill does bring forward the right to the protection of personal data, as I will set out. It is incredibly important to ensure that such rights keep pace with the sort of modern technologies that the hon. Lady—she is extremely well informed on these topics—refers to, such as the internet of things. The Bill will directly address the issue she raises by strengthening citizens’ rights in this new digital era, and I will detail the new rights later.
As digital becomes default in our society, people are trusting businesses and public services with more personal and sensitive data than ever before, including through their personal use of the internet and the internet of things, yet without trust that that data will be properly handled, the digital economy simply cannot succeed. Trust underpins a strong economy, and trust in data underpins a strong digital economy. The Bill will strengthen trust in the use of data by enhancing the control, transparency and security of data for people and businesses across the UK. I will speak to each of these three in turn.
First, on control, the Bill delivers on our commitment in the digital charter to empower citizens to take control of their data—after all, data belongs to citizens even when it is held by others—and sets new standards for protecting data while giving new rights to remove or delete it. Everyone will have the right to make sure that the data held about them is fair and accurate, and held in a way that aligns with rigorous principles.
Joanna Cherry (Edinburgh South West) (SNP)
Is it really accurate to say that everyone will have that right, given the immigration exemption?
Matt Hancock
Yes, of course. Everyone who is a British citizen will have the right to make sure that data about them is held fairly and accurately, and in alignment with rigorous principles. The hon. and learned Lady raises obliquely the point that the Bill contains important exemptions, including those to allow MPs to act on behalf of constituents as part of their casework, and to ensure that we can properly police our borders. I will come to that in more detail later. Nevertheless, at the heart of the Bill is citizens’ ability to control the data that companies and other organisations hold about them.
Sir Edward Davey (Kingston and Surbiton) (LD)
Further to the point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry), will the Secretary of State explain the legal basis for the immigration exemption from the general data protection regulation?
Matt Hancock
Yes, of course. Exemptions from the GDPR are allowed so that necessary activities can be carried out, including that of making sure that a minority of individuals cannot abuse data protection law with the sole intent of undermining immigration controls. That is provided for in the necessary exemptions. I know that this point was debated extensively in the other place, but we firmly believe not only that it is important to ensure that we can control our borders through immigration controls, but that this is provided for in the GDPR.
Joanna Cherry
The Secretary of State says that the immigration exemption is covered by the GDPR, but is he aware of legal opinion saying that the text of parts 1 and 4 of schedule 2 does not in fact reflect the stated permissible exemptions under article 23 of the GDPR? That is independent legal opinion, not mine.
Matt Hancock
Of course, there are always legal opinions about everything, and our legal opinion is that that is consistent—that is the basis on which we are proceeding. As I am sure the vast majority of Members would agree, it is important that we control our borders.
The Bill provides new data rights, including a stronger right to be forgotten.
Rebecca Pow (Taunton Deane) (Con)
I welcome the element of the Bill about the right to be forgotten. I am sure that the Secretary of State is aware that the Digital, Culture, Media and Sport Committee is carrying out an inquiry into fake news, during which this whole issue of data—who owns it, who holds it and who knows what about whom—has come under the spotlight. Can he say how the Bill might help to control that?
Bill Wiggin (North Herefordshire) (Con)
Before he does, will the Secretary of State give way?
Matt Hancock
I will happily respond to both points. Under the Bill, data must be deleted unless there are legitimate grounds for retaining it. The details of what is meant by legitimate grounds will be set out in recitals and then guidance from the Information Commissioner. This is one area in which the right to be forgotten, which has been long dreamt of and thought about, is now being legislated for, and the precise details of where it applies will be set out in guidance, as the Bill states only that there need to be legitimate grounds for retaining data.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
Can we be certain that this right to be forgotten will not impede freedom of speech? I am thinking of Max Mosley, of course, and the information that came out on what he said in 1961, which is relevant and pertinent to current debates. We should do nothing that limits the right of a free press.
Matt Hancock
I wholeheartedly agree with my hon. Friend about not limiting the rights of the free press. He might be aware of amendments that were made in the other place on exactly that issue and that are supported by a number of Members of this House, including, notably, some who are also supported by Max Mosley. I think that we should remove those two provisions. The ability of our press properly to scrutinise is important and should not be undermined in the ways proposed, but I will come to that in more detail later.
The right to be forgotten is an important element of making sure that data is held appropriately and when there are legitimate grounds. The Bill also allows for data portability—a person’s right to transfer their data from one provider to another.
Stephen Timms (East Ham) (Lab)
As the Secretary of State is describing, the Bill puts into UK law the EU’s general data protection regulation, which is the right thing to do. I am confident that he would agree that we need to ensure that our data protection rules stay in line with the EU regulation as things develop. Does it trouble him that we will have less influence over the future content of the EU’s rules once we have left it?
Matt Hancock
I agree that this is a strong set of data protection standards. We intend to stay aligned with the EU standards, not least because they are extraterritorial, which means that anyone wanting to do any business or transactions with EU citizens would have to follow them anyway. There is therefore a very strong case for alignment in this area. Indeed, we have set out that we want the Information Commissioner to remain engaged with the future development of technical standards because we expect the GDPR effectively to become a standard that is increasingly followed around the world by companies that want to engage with the EU, and because we believe that high data protection standards go hand in hand with the capability to innovate and provide for customers. The Prime Minister was, of course, clear about the detail on Friday.
Sir Edward Davey
I am afraid that the Secretary of State has not answered the question asked by the right hon. Member for East Ham (Stephen Timms). Is it not true that UK companies will be bound by rules that the EU will decide? Those rules will affect a huge amount of business, but we will have no influence over them after we leave the EU?
Matt Hancock
I thought I had answered the question—the right hon. Member for East Ham (Stephen Timms) was nodding, so I thought I had at least had a crack at it. As the Prime Minister set out on Friday, and as we set out for the first time last August, we will seek, through the Information Commissioner’s Office, to remain engaged in those technical discussions about the future of the rules. As was proposed in the Conservative party manifesto, the Bill also gives young people the right to have data about them removed once they are 18 years old.
The second element is transparency, which is absolutely vital. All citizens should be able to know what is happening to their data and how it is being used. The Bill requires data controllers to give people information about who controls data, the purpose of processing it, and how long it will be stored. That is especially crucial in a world in which emerging technologies such as artificial intelligence are making increasingly important ethical decisions. The Bill therefore provides powers for the restriction of automated decision making and safeguards for those whose data is used. Our new centre for data ethics and innovation will advise on those safeguards, so that we can promote innovation and respond quickly to changes in technology with clear and transparent guidelines that are based on openness and consent.
The third principle is security. The Bill enhances requirements relating to the security of data and strengthens enforcement for those who do not comply. Data security and innovation go hand in hand, and this move will benefit customers and all responsible businesses. The Data Protection Act 1998 has served us well and placed the UK at the forefront of global data protection standards, but the world has changed since 1998, and the Bill updates the position to make our laws fit for purpose in an increasingly digital economy and society. It modernises many of the offences under the Act and creates new offences to help us to deal with emerging challenges.
Dr David Drew (Stroud) (Lab/Co-op)
The Secretary of State is being very generous in taking interventions. He has probably heard from the National Association of Local Councils, which represents parish and town councils. It has asked that an external data protection officer will not have to be appointed at every council level. There would be a cost of some £3.5 million to the smallest but most relevant authorities, so will the Secretary of State be sympathetic to its request for relief from that onerous responsibility?
Matt Hancock
I have received representations not only from the National Association of Local Councils, but from the Suffolk Association of Local Councils and many of my own parish councils—including Moulton Parish Council—which do an admirable job in telling me about the pressures facing parish councils throughout the country. I pay tribute to them for their efforts, and for the length of their representations to me.
Of course it is important for parish councils, and other local councils, to follow high-quality data protection standards. The Information Commissioner’s Office has provided extensive guidance to help organisations to prepare for their new responsibilities, and I urge councils to look at it.
The responsibilities of data protection officers—this is relevant to the issue raised by the hon. Gentleman—can be implemented in different ways. For instance, several parish councils can choose to share a single data protection officer, provided that he or she is easily accessible from each establishment. The system does not require the hiring of one person per organisation. Organisations have already been set up to provide this service, and the service itself is important. In the case of a small organisation, such as a very small business or a parish council on a low budget, it is still important for data to be handled and protected carefully, because small organisations too can hold very sensitive personal information. I am extremely sympathetic to the plight of small businesses that must deal with regulation—especially as I come from a small business background myself—but I am also convinced that it is good practice to follow high-quality data protection standards and that it is good for organisations to do so.
James Cartlidge (South Suffolk) (Con)
I thank my right hon. Friend for giving way. He is being very generous.
I knew that some small businesses in my constituency were concerned about the impact of the GDPR, so I telephoned the Information Commissioner’s Office to find out what support was available to them. The only answer that the office could give to every question that I asked about how the GDPR would affect small businesses was “Go to the website.” Does my right hon. Friend agree that we should expect better from a telephone line that is funded by the taxpayer?
Matt Hancock
I am glad that there is a telephone line. I am sure that the Information Commissioner will be watching the debate and will hear the plea for clear guidance on how small organisations in particular should implement data protection standards, whether they are small councils or small businesses. However, the Information Commissioner’s Office has already provided clearer guidance, as well as the telephone line. It is obviously listening, with the aim of getting the guidance right and ensuring that, in lay terms, meeting the new standards is straightforward. This issue came up in the other place as well. It is important for us to get the implementation right, especially in the case of small organisations.
Chris Bryant (Rhondda) (Lab)
The Secretary of State has referred to the right to be forgotten. May I suggest that there might be another right, namely the right to be remembered correctly? All too often, in response to freedom of information requests about, for instance, national security, the Government have imposed a blanket ban on the publication of any information—even many years after the individual concerned has died, when it is pretty difficult to see why there should still be a national security issue. I wonder whether it would not be a good idea for us to have some means of extracting such information in 20, 30, 40 or 50 years’ time.
Matt Hancock
The Bill does not change the freedom of information regime. However, it does establish a data protection regime relating to intelligence services and national security, about which I shall say more shortly, and which will no doubt be scrutinised by the House. The specific issue of the release of records is not in the scope of the Bill, because it is about the protection of live data rather than the release of records. The 30-year rule has, in the main, been changed to a 20-year rule, but of course there are national security opt-outs, some of which are incredibly important.
Chris Bryant
Of course there should be national security opt-outs, and when we were changing the rule from 30 to 20 years, I was one of the Ministers who ensured that they were strong. My anxiety is, however, that all too often the security services impose a complete blanket ban, which means that we as a nation are not properly able to understand what happened in the 1930s, 1940s and 1950s. If we were better informed about that, we might be able to make better decisions for our own national security in the future.
Matt Hancock
I do not wish to labour the point. I too was the Minister responsible for national security releases. All I can say is that that is not within the scope of the Bill, and I think the system works effectively.
As recommended by Dame Fiona Caldicott, the National Data Guardian for Health and Care, the Bill creates a new offence of the unlawful re-identification of de-identified personal data. It offers new safeguards for children, including a new code on age-appropriate website design. Currently, the law on parental consent for children on social media is complicated, but in most cases it applies to children up to 12 years old. The Bill provides for consent to be required in the case of children aged up to 13, so that parents have more control but the law is still practical.
The Bill also sets out clearer frameworks for data security—for example, by giving everyone a right to know when their data has been breached. We are strengthening the enforcement powers of the Information Commissioner to reflect a world in which data is held and used in much more sophisticated ways than ever before. Under the Bill, the commissioner can issue substantial penalties of up to 4% of global turnover. When she finds criminality, she can also prosecute. With greater control, greater transparency and greater security for our data, the Bill will help to give us a statute book that is fit for the digital age as we leave the EU.
Let me now touch on some specific areas in a little more detail. This is a forensic Bill with 208 clauses. It covers a vast area of British life, including financial services, sport, the protection of equality and much more. It also includes provisions that will support Members of this House in the work that we do, and it will make it easier for us to take up casework on behalf of our constituents.
The Bill provides for three parallel schemes to protect personal data. First, on general data, which accounts for the vast majority of data processing across all sectors of the economy and the public sector, this part of the Bill works in tandem with the EU’s GDPR, which we have discussed. We know that small businesses need advice on this, and it is important to get right the advice from the Information Commissioner’s Office. It says in my notes that the ICO has a small business helpline, but we have already heard about that in the debate.
Rebecca Pow
I have been contacted by a number of businesses in Taunton Deane that are concerned about the work already placed on them to comply with data protection legislation. Can the Secretary of State confirm that this Bill will not give them a further workload, that it will indeed help those needing to trade in future across Europe and that it should, overall, be a benefit?
Matt Hancock
That is right. The Bill is structured to be consistent with the EU law elements of GDPR, which automatically apply from 25 May this year, to ensure that the non-EU elements of data protection, with respect to general data processing, national security data and law enforcement data, provide for a full spectrum framework for data protection once we leave the EU. The Bill is designed in such a way that it is as simple as possible for businesses to comply with the data protection standards that will be directly enforced from 25 May anyway. That is why from the point of view of small businesses, it is important that we get this Bill through by 25 May, and we have a fully functioning data protection framework. However, I certainly take on board, and am sympathetic to, the concerns my hon. Friend raises about small businesses and the need to ensure our data system is innovative in the future, and that people can comply with the rules. I hope that satisfies her on the concerns of small businesses in her constituency, as well as those of small councils and indeed small charities, which have to comply as well.
The schemes are designed to make sure the police can keep using and sharing personal data to prevent and investigate crime, to bring offenders to justice and to keep communities safe. Likewise, the Bill makes provisions for the personal data processed by our intelligence agencies, so they can continue to protect our country at a time of heightened terrorist threat. The intelligence services will be part of this new framework under the supervision of the Information Commissioner.
We also want to support the hard-hitting investigative journalism that holds the powerful to account and that we have touched on already—and it is good to see my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) engaging with the digital economy on his smartphone; I am delighted that he welcomes at least some elements of the 21st century. On this point, I want briefly to comment on the proposed clauses inserted by the Lords. I set out our response to the consultation on the future of the Leveson inquiry last week, so I will not set out the arguments again in full this afternoon, but I will say this: the amendments are simply not the answer to today’s problems faced by the media. It has been six years since the Leveson inquiry reported; since then, we have seen the completion of three detailed police investigations, extensive reforms to police practices and some of the most significant changes to press self-regulation in recent times. Meanwhile, the media are facing critical challenges that threaten their sustainability, including fake news, declining circulations and in gaining revenue from online content.
On top of that, the amendments undermine our devolution settlement. The new clauses seek to legislate on a UK-wide basis, despite press regulation being a reserved matter for the devolved Administrations. I hope Scottish National party Members, and indeed all Members, will join me in voting these amendments down.
Andy Slaughter (Hammersmith) (Lab)
The Secretary of State is not sounding any more convincing than he did in his statement on Thursday. Failure to proceed with part two of Leveson and section 40 of the Crime and Courts Act 2013 is a disgusting and cowardly betrayal of the victims of media harassment. It does not even leave those victims in the same position as before, because since Leveson the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has hobbled the ability of claimants in privacy and defamation actions to access no-win, no-fee representation. Therefore, section 40 is now the only way to ensure access to justice, which is as helpful to small publishers as it is to citizens. Why does the Secretary of State not put their interests before those of big newspaper groups, instead of currying favour for himself and his weak Government?
Matt Hancock
We debated this at length on Thursday and discussed the fact that it is vital that we look to what is needed for the media now, to ensure that instead of having a set of proposals that were designed several years ago and that would lead to any claimant being able to claim costs no matter the merits of their case, we have measures that enable our press to be sustainable for the future.
John Redwood (Wokingham) (Con)
I support the Secretary of State in proposing that these amendments be removed. Like many in this place, I have been on the wrong end of fake news and misrepresentation many times, so I do not do so out of personal interest. I think there is a wider public interest: a free press is an extremely important part of a democracy. The press will not always get it right, but we need to be very careful about the amendments from the Lords.
Matt Hancock
I wholeheartedly agree with my right hon. Friend.
This Bill is an essential piece of legislation that makes the UK’s data laws among the most effective in the world. This House must never shy away from supporting new technology. The Electric Lighting Act 1882 was considered so important that the House sat on a Saturday to get it through. I hope that will not be necessary this time, but I do hope that the House will adopt similar enthusiasm in backing this Bill. Doing so would support our entrepreneurs in harnessing the value of data, while giving citizens confidence when they go online.
I was pleased a few weeks ago that the Opposition Front-Bench teams in the other place agreed that the Bill was a positive and necessary step. I hope the whole House will agree tonight, and I commend this Bill to the House.
Tom Watson (West Bromwich East) (Lab)
I refer hon. Members to my declaration in the Register of Members’ Financial Interests, and, at the risk of emptying the Chamber early this evening, I should start by reassuring the Minister that Labour will not be opposing this Bill on Second Reading. It is an important piece of legislation, and parts of it absolutely have to be incorporated into domestic law by May this year, and we do not intend to stand in its way.
But that is not to say that we are content with the Bill as it is. Many improvements have been made in the other place—many with cross-party support, and some, which I will discuss in more detail, against the wishes of the Government—but there are more changes that we need to make, and the Opposition will be pressing for them as the Bill proceeds through its Commons stages. I pay tribute to the work of peers on all sides, and in particular to my Labour colleagues, Lord Stevenson, Lord Kennedy, Lord Griffiths and Lord Grantchester, for their work on the Opposition Front Bench.
In 2016, I set up the independent Future of Work Commission to look at the challenges and opportunities created by the new technological revolution. Just as Harold Wilson spoke 54 years ago about the opportunities of the “white heat” of what was then cutting-edge technology, so we now need to make sure that we are seizing the opportunities that the new digital economy presents to us. That is where many of the jobs of the future lie—where the raw materials are not steel or minerals or plastics, but data. The commission concluded that, with the right policy framework around it, the new technologies of artificial intelligence, massive processing power and digital transfer can create as many jobs as they destroy and enhance many jobs that currently exist.
None of that is inevitable, however, because we are not doing enough to exploit the opportunities created by this new world of work. Britain is unprepared for the technological revolution. We think this demands strategic planning, as the policy choices we make now will shape how technological change will affect the work and lives of our citizens.
I think we all in this House accept that, as we leave the European Union, we need to make sure that we still have unhindered flows of data between the EU and the UK; anything else would do huge damage to our economy. As the House of Lords European Union Committee report on “Brexit: the EU data protection package” concluded,
“any arrangement that resulted in greater friction around data transfers between the UK and the EU post-Brexit could hinder police and security cooperation. It could also present a non-tariff barrier to trade, particularly in services, putting companies operating out of the UK at a competitive disadvantage.”
So it is vital that we get this Bill right.
We will be seeking more information from the Government than was forthcoming in the Bill’s passage through the other place on how we will allow continuous data flows once Britain is no longer a member of the EU and, in the EU’s terms, a “third country”. Data is the raw material of the digital economy. Businesses, individuals, Government agencies and others need to exchange and process data, but to do that safely, we need proper protections so that it cannot be stolen, used without our consent or misused. If we are to build a strong digital economy, we need strong foundations, because trade is built on trust. Consumers, particularly children and vulnerable adults, need to be better supported and protected. That is why my right hon. Friend the Member for Birmingham, Hodge Hill (Liam Byrne), who will be doing much of the heavy lifting on the Bill as it proceeds through Committee, has talked about the need for a new Bill of data and digital rights—a broad set of regulatory structures for data capitalism.
We hope that our proposals are more ambitious than the Government’s digital charter and less reliant on voluntary codes of conduct, which can be ignored by big social media and data giants. Instead, we believe we need a statutory code of enforceable rights offering people proper control over their own data, appropriate remedies when their data is misused and proportionate sanctions to deter unlawful data processing. Rights for children need to be at the core of this. Children make up one third of internet users worldwide, and one in five in the UK, so we welcome the improvements made by Baroness Kidron’s amendment on age-appropriate design, but we want to work with the Government to do more to ensure that children are properly served by the Bill.
We believe that a right of privacy is key to any strong regime of rights. It is easy for individuals to have their privacy invaded as a result of sharing data on the internet, so we will be pushing for the incorporation of article 8 of the charter of fundamental rights, with all the appropriate safeguards and balancing tests. We hope that the Government will see the benefit of this to a future adequacy decision with the EU.
Mr Jim Cunningham (Coventry South) (Lab)
I am sure that, like me, my hon. Friend has had a number of letters from people who are concerned about their privacy and their rights in relation to privacy.
Tom Watson
Yes, indeed. Privacy in the age of the net, with huge data flows and information in abundance, is the debate of the age. There is no doubt that this House will be discussing privacy in the years to come, beyond this Bill and beyond further regulation. In this particular Bill, however, we must ensure that privacy is not just entrusted to the delegated powers of the Minister and that it is a fundamental right that our citizens can start to develop.
Parliament is also considering the European Union (Withdrawal) Bill, which, in combination with this Bill, risks eliminating the GDPR as a check on the misuse of ministerial authority to undermine data privacy rights. It gives Ministers power to make secondary legislation to amend any retained EU law, which would include those governing data protection rights. The European Union (Withdrawal) Bill, as currently drafted, eliminates the important data protection rights of article 8, which would otherwise constrain Ministers’ ability to erode fundamental data privacy protections. So we want to make it explicit in the Bill that those protections cannot be eroded. Strong rights need strong enforcement and a proper mechanism to enable enforcement to take place. This is all the more vital where the data rights of children are involved. We therefore want to see the Bill amended to ensure that consumer groups that operate in the privacy field can act on behalf of data subjects without a particular complaint—a right of collective, not just individual, redress.
The Government have chosen not to implement article 80(2) of the GDPR, which gives greater ability for civil society and other representative bodies to act on behalf of citizens and mirrors consumer rights in goods and services. A super-complainant system would help to protect anonymity and create a stronger enforcement framework. Collective redress and representative action led by a recognised body would also help individuals to enforce their rights to data protection when their data is exposed, stolen or misused as part of a large data breach that affects multiple people. It would create a stronger enforcement framework, which would build and reinforce trust without overburdening existing institutions.
I want to turn to two amendments—improvements—made in the other place that the Government have already said they wish to overturn. Indeed, as soon as the votes had taken place, the Secretary of State tweeted that they were votes against press freedom—even though they were also votes in favour of a policy agreed by all parties in 2012, and for which he himself, the former Prime Minister and the current Prime Minister had previously voted. So it was no great surprise when the Secretary of State made his announcement last week about ditching Leveson part 2 and binning section 40 of the Crime and Courts Act 2013. His tweet, as I think he will recognise, somewhat pre-empted his consultation response. However, we live in a country where Parliament is sovereign, so the decision is not entirely up to him. It is up to us in this House. We can decide whether to keep the promises made by David Cameron—and by all parties—to the victims of phone hacking and other press abuse in 2012, or to break them.
Chris Bryant
Was there not also a promise, in a sense, to Brian Leveson? The guarantee was that a single inquiry was to be carried out. I am sure that my hon. Friend has seen the correspondence in which Leveson himself says that he fundamentally disagrees with the Government’s position because the only regard in which he thinks the terms of reference should be changed is that they should be increased, so that we could see whether the Independent Press Standards Organisation was indeed any different from the Press Complaints Commission at all.
Tom Watson
A characteristically articulate question, there. My hon. Friend will not be surprised to learn that I am coming on to that point in my speech now.
Section 40 of the Crime and Courts Act 2013 legislates for the part of the Leveson system that would provide access to justice for ordinary citizens, while offering protection to journalists and newspapers that signed up to any Leveson-compliant self-regulatory body. I want to take on one argument that I think is a complete red herring. Some elements of the media do not like IMPRESS —the only self-regulator that has so far been given royal charter recognition. They are, to coin a phrase, unimpressed with it. They would prefer not to be regulated by it, and they pretend that section 40 would force them to be members of it. But that is not accurate. There is absolutely nothing preventing those elements of the press that dislike IMPRESS from setting up an alternative self-regulator and seeking royal charter recognition for it. They could seek recognition for IPSO, but it continues to fall short of the criteria applied by the Press Recognition Panel. The fact that they choose not to do so suggests that IMPRESS is not really the problem. So we will seek to retain the amendment on section 40.
Tom Watson
I was anticipating an intervention from the hon. Gentleman. I hope that he can convince me that those senior editors who gave evidence to Leveson will not be eating their words when further revelations are made in the weeks and months ahead.
Mr Rees-Mogg
I am grateful to the hon. Gentleman for giving way and for his earlier and quite proper reference to his entry in the Register of Members’ Financial Interests. IMPRESS is there, and it has been funded by Max Mosley, who has been exposed as a racist and as someone who indulges in orgies and who has been waging a war against the press. The free press does not want to be regulated by a state-approved regulator. That is fundamental to the freedoms we enjoy in our society. Clauses 168 and 169 effectively impose IMPRESS as the only body that has sought and received royal charter approval, yet it is funded by this deeply unsavoury figure, from whom I believe the hon. Gentleman has now dissociated himself.
Tom Watson
I do not believe that Max Mosley now holds the views ascribed to him. This is what happens when people take on press barons and the billionaires who back them. That is what is going on here. The hon. Gentleman, the Minister and everyone in this House knows that the press barons do not want this regulation. Some years ago, probably before the hon. Gentleman was elected to this House, I remember that MPs were frightened of speaking out about media abuse lest they receive retribution, so I will not take any lessons when people who stand up for media reform see their characters traduced and destroyed in the press.
Several hon. Members rose—
Tom Watson
I will make some progress.
In his statement to the House last week, the Secretary of State said that Sir Brian
“agrees that the inquiry should not proceed under the current terms of reference but believes that it should continue in an amended form.”—[Official Report, 1 March 2018; Vol. 636, c. 966.]
I do not know about you, Madam Deputy Speaker—[Interruption.] Oh, Mr Deputy Speaker.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With a name like Lindsay, who knows? [Laughter.]
Tom Watson
I am not rising to that. I do not know about you, Mr Deputy Speaker, but I got the distinct impression from the Secretary of State’s presentation that Brian Leveson supported his proposals. That was something of an understatement. In fact, Sir Brian says that he disagrees “fundamentally” with the Government’s position, stating:
“I have no doubt that there is still a legitimate expectation on behalf of the public and, in particular, the alleged victims of phone hacking and other unlawful conduct, that there will be a full public examination of the circumstances that allowed that behaviour to develop and clear reassurances that nothing of the same scale could occur again: that is what they were promised”.
Sir Brian is clear that this breaks a promise to the victims, and it does so by using a very clever sleight of hand. The Secretary of State told the House that 12% of direct respondents to the consultation were in favour of continuing the inquiry, with 66% against. How did the Government get to that landslide verdict? Scandalously, they disregarded the 200,000 people who signed an online petition in favour of continuing the inquiry, but they included thousands of pro forma newspaper coupons that various papers encouraged their readers to send in. Sir Brian said to the Government:
“I would not personally count the responses in the way in which you have.”
Matt Hancock
As the hon. Gentleman may or may not know, it is entirely standard to count in that way. The same was done on the questions of equal marriage and of BBC charter reform, because there is a material difference between clicking a button to sign a preformed digital signature and writing in separately. This is how things have been in other big consultations. It is entirely normal, and the full details were set out last Thursday.
Tom Watson
The Secretary of State is obviously living in the analogue age if he thinks that he can accept a coupon from The Sun but ignore 200,000 citizens expressing their concern about the inquiry.
I have only one question for the Secretary of State. Will the Government be able to detail what they will do if evidence of wrongdoing is revealed, in particular if editors misled or were partial in their evidence to the original inquiry? We still need Leveson 2, and Sir Brian agrees.
Andy Slaughter
My hon. Friend is making excellent work of exposing the Government on this point, but things go a stage further than this. Abandoning Leveson against the wishes of Lord Leveson is a constitutional provocation, because it puts party interest above due process. If that is going to happen with one inquiry, why will it not happen with Grenfell or contaminated blood? What will stop the Government doing things that are in their own interests, not those of victims?
Tom Watson
My hon. Friend makes an important and fair point that I hope the analogue Minister will reflect on.
Rather than protecting the public from the abuse of their data, committed by or on behalf of newspaper publishers, the Government have capitulated to the media. In his letter, Sir Brian said that
“the press is in a unique position because there is no other… body in a position to hold the very real exercise of power by the press to account and to expose its wrongdoing to the public”
In short, the press has no predators. As this Bill makes its way into law, we will be voting to redress that imbalance and to keep our promises.
Several hon. Members rose—
Mr Deputy Speaker (Sir Lindsay Hoyle)
Order. If we work on a 10-minute limit, but without me imposing it, everybody will get equal time.
Bill Wiggin (North Herefordshire) (Con)
I draw Members’ attention to my entry in the Register of Members’ Financial Interests. I will start with a little anecdote about my local paper and IPSO. On 9 November, just four days after the Paradise papers story broke, the Hereford Times published the headline, “Tory MP dragged into offshore row”. It clearly implied a connection between me, a law firm I have never had anything to do with, and tax avoidance, which, equally, I have had nothing to do with. To make matters worse, the editor then chose to publish letters the next week from readers who believed that I was part of the Paradise papers. Amazingly, IPSO ruled that that was not misleading or inaccurate in any way. Even though the article contained factual inaccuracies that I had pointed out, IPSO’s complaints committee simply ignored them. IPSO is a press protector, not a press regulator. MPs can speak out against it in the public domain, but normal people have no such voice, so we need this excellent Bill, which I look forward to supporting, largely because of the amendments from Earl Attlee.
Let me describe the Hereford Times a little bit. It is owned by Newsquest, which is a wholly owned subsidiary of Gannett Company UK, the UK branch of Gannett Company—a US media giant. In 2015, Newsquest reported a loss of £24,349,000. Meanwhile, Gannett reported revenues of £2.89 billion and a net income of over £146 million. On 11 August 2017, Chris Morley from the National Union of Journalists described Newsquest as
“exporting tens of millions of pounds profit to its US masters”.
In October 2016, the NUJ said, after its pay survey, that Newsquest was one of the stingiest employers, despite Gannett paying its top five executives over £15 million between them. I am pleased to say that I do not believe that John Wilson, the rather hopeless editor of the Hereford Times, was one of them.
Moving on to Leveson 2, Baroness Hollins’ amendment provides for an inquiry with similar terms of reference to part 2 of the Leveson inquiry. I am obviously extremely disappointed that the Government last week chose to abandon Lord Leveson’s recommendations. The inquiry was always one inquiry in two parts, not two inquiries, and it should not stop halfway through. Sir Brian Leveson was absolutely clear in his letter to the Secretary of State that he does not want the inquiry to stop halfway. However, there is no justification for spending millions on part 2 if we are simply to abandon the recommendations of part 1. We must carry out the recommendations of part 1 and then continue with the second half of the inquiry.
An amendment put forward by Earl Attlee in the other place adds provisions similar to those in section 40 of the Crime and Courts Act 2013. The Secretary of State last week suggested that the current system of press regulation was sufficient and that implementing section 40 would damage the freedom of the press and hurt vulnerable local papers, but he is wrong on all those counts. In response to the idea that the current system of regulation is sufficient, I point out that IPSO cannot be “largely compliant.” It is not possible to be largely pregnant—someone is either pregnant or not. As per the Secretary of State’s statement, a regulator either follows all 29 criteria or it does not. IPSO does not, and therefore it is not the method of press regulation that Leveson recommended and that has already been passed into law. The Secretary of State suggests that we do not need further regulation. Why would we regulate energy providers, communications providers and even exam providers, but simply decide to trust newspapers that have criminal convictions? That is plainly barmy.
Christine Jardine (Edinburgh West) (LD)
Does the hon. Gentleman agree that it is ironic that the press is not to be regulated, when broadcasters are, via Ofcom?
Bill Wiggin
Either we regulate or we do not, but we cannot do bits. That is why it is important that the Bill passes into law as it is. I agree with the hon. Lady.
The second accusation is that Earl Attlee’s amendments would damage the freedom of the press. The Press Recognition Panel is entirely independent of the Government and the press. It is funded by the Government, but so are the courts, and no one would accuse the judiciary of being influenced by the Government. In addition, the PRP’s charter is as good as unamendable, as amendment requires a 66% supermajority in both Houses and, crucially, the unanimous agreement of the PRP board, so any Government who chose to change press regulation would find it far easier to do so through primary legislation. It is fiction to think the PRP is anything other than independent.
Finally, it has been suggested that Earl Attlee’s amendments would harm local newspapers financially. Section 40 is not about punishing newspapers; it is about creating a fair and low-cost arbitration process that is good for local newspapers and for vulnerable individuals. Lord Leveson envisaged his proposals protecting local newspapers from rich and powerful litigants, and he certainly did not intend for newspapers to refuse to join a regulator.
Section 40 is not only desirable but necessary. IPSO will never agree to apply to become an approved regulator unless it is forced to, and section 40 would ensure that it happened. These measures already received the full support of both Houses in proceedings on the Crime and Courts Act. We must now implement them. The challenge goes out to the Opposition parties: there is support on both sides of the House for section 40, but if there are not sufficient Members here to vote for it, the Government will have their way. I hope we will make sure that this House does not bend the knee to the power of the press barons, but remembers its role to speak up for the vulnerable—the people who have no money, and who need a proper, fair and low-cost arbitration system.
Brendan O'Hara (Argyll and Bute) (SNP)
The Scottish National party acknowledges the need for a new and comprehensive data protection framework that safeguards human rights, and updates UK data protection law to bring it in line with the European Union’s general data protection regulation. We want a Data Protection Bill that makes the UK’s data protection laws fit for the digital age, that enshrines the principle of transparency and accountability and that gives all citizens and consumers greater control over who has access to their personal information and what those parties can do with it.
Despite what we have heard in the debate, this is a wide-ranging and complicated Bill. The House is agreed on many aspects of it, but in certain crucial areas, it falls short of what we expect from modern data protection legislation. Specifically, we are concerned about the Bill’s provisions on the UK’s derogation from the GDPR for the purposes of effective immigration control. We also have concerns about automated decision making, the use of national security certificates and the lack of provision for collective redress. We are also very concerned about the consequences for the UK as it tries to secure an adequacy agreement with the European Union, post Brexit.
As the Secretary of State is well aware, SNP Members and the Scottish Government are extremely concerned about clause 168, which concerns section 40 of the Crime and Courts Act 2013. Clause 168 was inserted in the other place and impinges on areas wholly devolved to the Scottish Parliament. Although we will be as constructive as possible in assisting the passage of the Bill, we will table our own amendments and support other Members’ amendments on those issues in Committee.
We will definitely seek to challenge paragraph 4 of part 1 of schedule 2, which is effectively an immigration exemption that permits the Government to collect and hold data without subject knowledge; we find that deeply worrying. Equally concerning is that there is no legal definition of immigration control, or the maintenance of effective immigration control, anywhere in the Bill. Given that effective immigration control is both highly subjective and highly political, I fear it will make individuals’ rights extremely susceptible to changes in political tides. This broad, wide-ranging exemption is fundamentally unfair, and it runs contrary to basic human rights. It is unprecedented and as unnecessary as it is disproportionate.
Under this exemption, the Government will remove any obligation they have under data protection law to inform an individual that their data has been transferred to the Home Office for immigration control purposes. The individual concerned would not know that their data was being held, or that they were under investigation. They would have no right to see what data of theirs was being held by the Home Office, or to find out why it was being held. They would have no way of checking the accuracy of the information held by the Home Office, and they would have no way of correcting any mistakes in that information, which could be used by the Home Office to decide whether they could live in this country.
That means that one early error in data collection or processing could become indisputable fact by the time it reached the Home Office, and the Home Office could base its case against an individual on that. As MPs, we all know how often information held on individuals turns out to be wrong. This is an issue of basic fairness, and it is little wonder that the measure has been roundly condemned by numerous civil liberties groups and by many in the legal profession.
If the measure is enacted, it would be a fundamental change to the way things currently work, whereby data held on an individual can be obtained through a subject access request. As it stands, the Home Office, the applicant and the applicant’s legal representative all have access to the same information, and it is that information on which claims and legal challenges are based. Surely, if both sides do not have access to the same information, the fairness of legal proceedings is inevitably compromised.
Subject access requests are often the only route through which legal professionals can obtain access to such information, and thereby understand the complicated immigration history of some of their clients. Indeed, for applicants who have been the victim of domestic abuse and who were in a controlling relationship for years before seeking help on immigration matters, a subject access request may be their only way of establishing their basis for settlement and for gaining independence from an abusive partner. This exemption will reduce a legal representative’s ability to best represent their client, and it will remove an important tool in holding the Home Office to account when it ignores or seeks to misrepresent the facts.
Further to the comments of the hon. Member for West Bromwich East (Tom Watson), we also strongly recommend that the Government look again at clause 183, and make provision for suitably qualified non-profit organisations to pursue action against data protection infringements of their own accord. This kind of enforcement, where one person or body represents a group of individuals, is known as collective redress. As it stands, clause 183 only allows individuals to request that suitably qualified organisations take up a case on their behalf, rather than allowing such organisations to highlight where they believe a breach of data protection law has occurred.
All too often, individuals are the last to know that their data has been unlawfully used, and in many cases those best placed to identify unlawful practices are the organisations that do the independent research and investigation. We hope that clause 183 can be amended to ensure that not-for-profit organisations have the right to raise complaints themselves when they consider that people’s data protection rights have been infringed.
I also want to raise the matter of automated decision making and, in particular, clause 14, which permits exemptions from the right not to be subject to an automated decision. We strongly believe that automated decision making without human intervention should be subject to the strictest limitations, and it has to address fairness, transparency, accountability and issues of discrimination. The Bill provides insufficient safeguards. This is not about an online retailer suggesting what book or song someone might wish to download, based on previous purchases; this is about decisions being made without human oversight that can have long-term, serious consequences for an individual’s health, or their financial, employment or legal status.
As I understand it, clause 48 would allow law enforcement agencies to make purely automated decisions. This is fraught with danger and is, we believe, not only at odds with the Data Protection Act 1998, but against article 22 of the GDPR, which gives individuals the right not to be subject to purely automated decisions. The GDPR contains provision for EU member states to opt out of this, but that opt-out does not apply if the data subject’s rights, freedoms and legitimate interests are undermined. I urge the Government to look again at those parts of the Bill on automated decision making and to make it explicit that where automated processing is carried out, a human will have to decide whether it is reasonable and appropriate to continue. That human intervention will provide transparency and accountability, and ensure that the state is not infringing an individual’s fundamental rights, liberties and privacy. Those issues are often subjective and beyond the concept of an algorithm.
Another area of concern, which we will raise in Committee, relates to the issuing of national security certificates, which allow restriction of and exemption from a wide range of rights in the Bill and the GDPR on the basis of national security and defence. It is right that a country should have an ability to do what is deemed to be in the best interests of its national security, but many would argue that, since 1998, national security certificates have received insufficient scrutiny of their impact on privacy or their proportionality. We are concerned that the proposals in the Bill go much further than those in the Data Protection Act 1998. We question whether the broad and indefinite nature of those national security exemptions is necessary and proportionate and whether the oversight of the issuing of national security certificates is sufficient. As the Bill is drafted, an individual’s rights could be removed by a politician without any form of judicial oversight. Surely it cannot be right for an individual’s rights to be undermined so easily, purely on the say-so of a Minister.
Of course, even in normal circumstances, the passage of this Bill would be challenging, given its nature, size, scope and complexity, but it has to be seen against the backdrop of Brexit, as does everything we do and have done for the past two years. We have to not only comply with the GDPR, but do so in such a way that the United Kingdom achieves an adequacy decision from the European Commission, allowing it to continue to operate securely and freely within the framework of the GDPR. I fear that much of what is proposed in this Bill, particularly on the immigration exemption and the national security certificates, jeopardises achieving that adequacy decision, as before granting such a decision the European Commission is obliged to consider a variety of issues, including respect for fundamental rights. As we have heard, the GDPR will evolve over time, and the UK will have to maintain adequacy, and that means amending our data protection to keep it in line with European law.
My final point relates to amendment 147 from the other place, which will have the same effect as implementing section 40 of the Crime and Courts Act 2013. The Minister is aware that although data protection is a reserved issue, both criminal justice and press regulation are wholly devolved to the Scottish Parliament. Furthermore, the concept of exemplary damages does not exist in Scots law, and the Scottish Government have no intention of changing the law for the purposes of incentivising participation in a press regulation system. As it stands, this Bill seeks to regulate the press by means of civil procedure, both of which, as I say, are devolved to the Scottish Parliament.
As I said in the Chamber last week, we believe that all individuals should be able to seek redress when they feel they have been the victim of press malpractice, and the Scottish Government will continue to engage with the Scottish press on independent self-regulation. The Secretary of State has had correspondence on this matter from myself and Fiona Hyslop, the Scottish Government’s Cabinet Secretary for Culture, Tourism and External Affairs, who wrote to the UK Government last month making clear the Scottish Government’s position on this matter. On the second part of the Leveson inquiry, she was equally clear that press regulation and any associated issues around the culture, practices and ethics of the press would be a matter for the Scottish Government and that in any future inquiry, the distinct legal context in Scotland must be taken into account. It benefits every one of us to have a data protection regime that is transparent and accountable and that has at its heart the rights of the individual to control what happens with their data.
Although there is much that we agree on in this Bill, there are areas that give us serious cause for concern. In Committee, we will therefore table amendments and support others’ amendments that seek to address concerns about the immigration exemption, collective redress, automated decision making, the scope of national security certificates and, of course, section 40 as it relates to Scotland. These amendments will seek to strengthen the Bill, to guarantee that everyone’s human rights are protected equally and to ensure that, going forward, the UK has the best chance of securing the adequacy decision that it requires, post Brexit.
Peter Heaton-Jones (North Devon) (Con)
I start by declaring an interest, in that before I became embroiled in the world of politics, I was a journalist for 20 years, although not in the print media—I had the perfect face for radio, so it was the wireless that beckoned. As a former journalist, I take a close interest in two of the matters before us this evening, and I refer to two of the amendments that were made in the other place. I am a bit perturbed as to why we would be dealing with those two specific issues in a data protection Bill, because this Bill seems to be being used somewhat as a Christmas tree, on which all sorts of things can hang, and I am not sure that that is appropriate.
I am sure, however, that the Secretary of State was right to say in his statement last Thursday that the Government will not be accepting those two amendments. I refer, of course, to that on the implementation of section 40 of the Crime and Courts Act 2013, which I shall come on to in a moment, and the amendment providing that we should proceed with Leveson 2. I was glad that he announced on Thursday that we would not be going ahead with that, because it is absolutely the right decision, for a number of reasons, not least because the manifesto on which we were elected nine months ago said that we would not be going ahead with it.
Putting politics aside for a little while, let me say that there are a number of reasons why it is it not necessary to go ahead with that. The main one is that the environment has changed dramatically since the first Leveson inquiry. It has changed dramatically since I was last working as a journalist, which was way back in 2006, but even since 2012 and Leveson 1, the landscape has changed dramatically.
Chris Bryant
That is neither here nor there, because the whole point of the Leveson inquiry was to establish what happened. Hundreds of individuals have had to go through the civil courts to try to establish what happened in their individual case. Many of them now know more than the country does about what happened at that time, but they are unable to say so because they have had to sign confidentiality agreements. The truth of the matter is that we still have never got to the bottom of what level of collusion there was between the Metropolitan police and the News of the World, and many newspapers have simply lied.
Peter Heaton-Jones
I was coming to some of the points that the hon. Gentleman mentions, but the issue is that if Leveson 2 had gone ahead, it would have been narrowly and tightly about the relationship between the media and the police.
I absolutely welcome Leveson 1: it did a job that needed to be done by shining a light into the dark corners of some media practices and, importantly, giving redress to people who had been wronged by the media—there were too many of those. There are people who feel that it did not go far enough, and some still feel that they did not get their confirmed right of reply, but the fact is that Leveson 1 has happened, and it happened some little time ago.
Leveson 2 would have had the fairly narrow remit of the relationship between the police and the media. The argument I was coming to was that since Leveson 2 was mooted, so much has changed in the regulation of the press, as we have already been discussing. The new regulatory regime is now under way—I might come to some of its drawbacks in a moment—and, furthermore, the practices of the police have changed a lot.
Leveson shined a light on the problems. I take the point made by the hon. Member for Rhondda (Chris Bryant) that the relationship between some officers and some journalists was shown by Leveson 1 to be absolutely inappropriate. I do not believe that we need a costly, lengthy, long-drawn-out second phase of the Leveson process, which probably would not do the job we would be hoping of it anyway.
Chris Bryant
The point is that the investigation is sort of happening now through the civil courts, except that it is individual members of the public who have to fork out £350,000 or £450,000 in legal fees to get to the truth. In Leveson 1, Brian Leveson was expressly not able to look at anything for which there might have been any criminal charges. The fact that the Daily Mirror has now admitted—in the civil courts, but not to Leveson—that it did engage in phone hacking is one of the matters that still has not come to the public.
Peter Heaton-Jones
However, Leveson 2 would not necessarily put any of that right.
Peter Heaton-Jones
Well, we do not know that. The difficulty is that a lengthy, costly process that in the end might not even achieve what was hoped for is not the answer. The answer, as the Secretary of State rightly said in his statement on Thursday, is to ensure that we shine a light through proper regulation on the practices that have done wrong to a number of people in the country.
I accept the points made by my hon. Friend the Member for North Herefordshire (Bill Wiggin). We should absolutely focus on the rights of people in this country—people who cannot afford the voice to stand up for themselves—but Leveson 2 was never going to solve that issue. It was going to be a long-winded inquiry that would not have got there, and the Secretary of State made that point convincingly on Thursday.
Christine Jardine
Does the hon. Gentleman not agree with me, a fellow former journalist, that one of the things that has most undermined the reputation of the media in this country in general has been the behaviour of our newspapers, which have seemed to the public to be beyond regulation? Self-regulation has failed and undermined the image of the media. The Press Complaints Commission failed, as the Press Council did. We had an opportunity to put that right, but it has been lost.
Peter Heaton-Jones
The hon. Lady is right that the Press Complaints Commission did fail, which is why it is rightly no longer there and we now have a new framework. While we are talking in general about regulation, I should say that I have some sympathy with the question marks raised over the regulation of my former employer, the BBC. We got that wrong for many years. There was the bizarre situation in which the BBC board—later, the BBC Trust—was acting as both poacher and gamekeeper, marking its own homework. The Government have rightly sought to put that right and we have moved a long way towards doing so.
I do not believe that the answer to the wrongs that still exist in the regulatory regime for newspapers lies in the amendments that have come our way from the other end of the Palace of Westminster. I do not believe that they would do the job that, as my hon. Friend the Member for North Herefordshire rightly said, the people outside this place want us to do: to make sure that they have a fair right of reply when something wrong is done to them by newspapers.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
I am grateful to the hon. Gentleman, who is being characteristically courteous in giving way to so many Members. Can he point to another area of public policy in which as many suspicions have been aroused, but that has been improved by our collectively deciding to just move on and leave things in the dark?
Peter Heaton-Jones
No one is suggesting just moving on and leaving things in the dark. That is not at all what the Government intend to do. If we look carefully at the words the Secretary of State used on Thursday, we see that there is no question of our moving on and saying, “There’s nothing to see here.” We are saying that the mechanism suggested in the amendments from the other place is not the right way to proceed. I agree with the position taken by the Secretary of State.
Liam Byrne
With the greatest of respect, regulations are forward looking, but the inquiry that we are seeking goes into past malpractice for the simple reason that we would like justice to be done.
Peter Heaton-Jones
I do not believe that the inquiry that the other place seeks, through its amendment, to impose on the Bill would do the job that the right hon. Gentleman wants done. The position that the Secretary of State laid out on Thursday is the right way to proceed. Leveson 2 would simply not do the job that many Members on both sides of the House want it to do.
I am going to move on, as I am thinking about Mr Deputy Speaker’s strictures about timing.
Matt Warman
For the sake of novelty, my hon. Friend is taking an intervention from the Government side.
The one point that my hon. Friend has not yet mentioned is that IPSO is a fundamentally very different regulator—[Interruption.] The hon. Member for Rhondda (Chris Bryant) might not like it, but low-cost mediation is a crucial feature that allows exactly the redress that he wants.
Peter Heaton-Jones
I had a lot to say about IPSO and IMPRESS along the lines that my hon. Friend has laid out, but I am aware of Mr Deputy Speaker’s strictures. I have tried to take as many interventions as I can, and page 2 of my remarks will be put down on this green Bench very shortly.
I move on to the second issue that I wanted to raise: the second amendment sent to us by the other place saying that we should commence section 40 of the Crime and Courts Act 2013. That would not be the right way to proceed, and I am grateful that my right hon. Friend the Secretary of State made that point so clearly on Thursday. Many local papers in North Devon have written to me on numerous occasions expressing deep concerns about the impact that section 40 would have. I mention just three: the North Devon Journal, the North Devon Gazette and the South Molton & District News, which is, incidentally, one of the few papers to have signed up to IMPRESS, the new press regulator.
Freedom of the press is absolutely essential in a democracy. Let us think carefully about what section 40 says: if a paper not under the auspices of a Press Recognition Panel regulator is sued for defamation, for instance, it has to pay the legal costs of both sides, even if it wins the case. How can that be sensible? We might argue that that is a pretty blunt instrument with the intention of coercing newspapers to sign up to one of the approved regulators, but 90% of the national press have not done so, so the blunt instrument is clearly not being effective. The biggest danger, however, is that many small, local media companies, such as those in my constituency that I have mentioned, would simply not be able to run a viable business if section 40 were enacted. Financially, the court costs would cripple them. Individuals could make vexatious claims in the knowledge that there was no chance of their ever having to pay costs, whatever the outcome. That is simply something up with which we will not put.
The local press in North Devon and many other parts of the country is still extraordinarily important. The two main papers I mentioned are still read widely today and help to maintain our sense of community. We cannot face a situation in which such papers are threatened by what could be a series of vexatious claims, encouraged by the fact that there would be no risk to the person making that claim.
Peter Heaton-Jones
If hon. Members do not mind, I am coming to the end of my remarks.
In my 20 years as a journalist at the BBC, I was passionate about freedom of speech and a right of reply, because that is the desperately important foundation on which our newspaper industry is based. I am also desperately passionate about ensuring that people who are wronged in some way by the media are given an effective response mechanism. Neither amendment that has come our way from the other place would achieve that. I am grateful to hear that the Opposition will support the Bill’s Second Reading, and I hope that we will not accept those two amendments and that we will pass the Bill as it was drafted.
Daniel Zeichner (Cambridge) (Lab)
I will not speak about the problems of the analogue past, but instead look ahead to the digital future. It is a pleasure to speak on a Bill that has been subject to very detailed scrutiny by some very eminent people in the other place.
It may seem curious to have such lengthy and detailed legislation before us when the heart of it, the GDPR, is actually somewhere else—it is, of course, in EU legislation. Our discussion is on how to implement it and other such issues rather than on the actual proposals themselves. I dare say that there are some who will jump to the conclusion that it is yet another example of rules being made elsewhere. However, I take the opposite view, as this is legislation that British representatives helped to fashion in Brussels, and as I will point out later in my speech, because data flows across national boundaries, having a full and frank discussion with one’s neighbours is to one’s advantage, not disadvantage. By being in the European Union, through the GDPR as in so many other fields, we take control of our future, rather than hunker down in a defeated bunker and wait for others to do things to us—taking back control of nothing other than the ability to bemoan our unfortunate fate.
This debate today is very timely, because on Friday the Prime Minister finally made the first faltering steps towards recognising that reality. I was pleased to see her acknowledge just how important data is to our future—it was one of the four key areas that she outlined—but, even after all the warnings, she still does not seem quite to understand the pitfalls in seeking an adequacy arrangement when, without the freedoms that membership of the European Union gives us to determine our own balance between security and privacy, that balance will be subject to the very different judgment of other EU countries.
I have been fortunate, through my work as chair of the all-party group on data analytics, to learn from a range of very expert people about some of the possible advances that come with a much more sophisticated use of data. I have also learned of the fears that many rightly have about the potential consequences of those same advances. That is why I was pleased that, following the excellent work by the Royal Society led by Dame Ottoline Leyser from Cambridge among others, we do now have the prospect of a data ethics and governance body, and, perhaps unusually, I pay credit to the Government for bringing that forward. Although I have questioned exactly how that will sit within the current structures, particularly with the Information Commissioner’s Office, we have the potential to create something really rather important, and I hope that, in further discussion of this Bill, we will be able to explore with Ministers in more detail the future landscape for data governance. We most certainly need such governance, because hardly a day goes by without further concerns being raised in one sphere or another, whether it be internet safety issues or the accurate reporting of news. To put it mildly, this is a big subject.
I will not attempt to address all, or even many, of the issues in the Bill; that can be for another day. Instead, I will confine my comments to one or two areas of particular concern. As someone who was very taken by the account of the potential dangers of relying too heavily on closed algorithms when I read the aptly titled “Weapons of Math Destruction” by Cathy O’Neil, I must mention the concern so many of us feel about the dangers of automated decision making, which so risk hardcoding previous injustices and social and cultural prejudices. In this Bill in particular, I share the concerns already raised about the immigration exemption.
A further concern raised in general about GDPR is the potential unintended consequences on some voluntary organisations, particularly small ones. It may be that the legislation has not always been properly understood, and it may be that some accounts have caused people to be more fearful than they need be, but I was struck just a few days ago to hear from a small charity in Cambridge that it had decided to discontinue its operations because it was not confident that it could meet GDPR requirements. Stopping small voluntary organisations from helping people is not the intention of this legislation. Indeed, if that is an unintended consequence, we need urgently to find ways to remedy it.
Similarly, we need to make sure that this legislation facilitates, rather than damages, our ability to use NHS data effectively. I know that many are working very hard on that, and that everyone is mindful of previous false starts. In particular, the shadow of Care.data still looms, because, despite good intentions, that programme clearly got it wrong. It failed to win public trust: there was widespread concern that the appropriate safeguards were not in place, and a failure properly to explain potential benefits to patients. It is easy to criticise, but winning trust is a very hard thing to do. The public are rightly concerned that data obtained for one use could then be applied in a different context and could possibly be commercialised. All the evidence is that that is what people particularly revile. We now have another programme under way, which we are told is GDPR compliant, and yet I wonder again just how many people are aware of it and whether we can be sure that there will not be further problems. I hope that, as we discuss this Bill, we can help raise public awareness and understanding, because without that, all the work and effort being put in by so many could be at risk.
I turn briefly to potential impacts on the research sector and universities. I am grateful to the Sanger Institute, located outside Cambridge, and the Wellcome Trust for explaining some of the very real concerns facing the sector, particularly around health data. We know that reviews such as Caldicott have made sensible recommendations, which hon. Members are working hard to get on the statute book. The principle of opt-outs regarding the usage of data collected is sound, and the safeguards such as those enshrined in GDPR are vital for ensuring data subjects’ interests are protected in research. However, as currently drafted, the framework for data processing by the Government, which was introduced at a very late stage in the other place, risks undermining that. The ICO also has concerns, as it is not clear that the public can have absolute confidence in the way that the Government use their data, and I hope that we can have some clarity from Ministers over how that can be resolved. It is also worth noting in passing that the introduction of the National Data Guardian for Health and Social Care, which has come about through a private Member’s Bill, is welcome but is awaiting Committee stage. The process needs to be speeded up to dovetail with this Bill as a matter of urgency.
There are further concerns. Research institutions tell me that this Bill currently does not provide a clear enough legal basis for conducting research using personal data. They have some fairly straightforward suggestions for improvement, which I hope the Government will consider in Committee, around better defining public interest to make it explicit that it includes research uses, particularly medical research.
Additionally, when I spoke to the Sanger Institute, which has to process data not under the public interest category but under legitimate interest, it was clear to me that it is important that it has confidence about the legitimate provenance of the processed data that it uses, which has often been passed from universities. The research community needs it written explicitly in the Bill that university research can be conducted legitimately on a “task in the public interest” lawful basis. That is also needed to satisfy guidance from the ICO to confirm that this is an appropriate lawful basis for university research. Although larger institutions may have the confidence to continue with their research and risk challenge, this could present more of a problem to newer or smaller universities. We have huge potential for healthcare transformation and innovation in the UK economy, and to risk that by getting this part of the Bill wrong would be very foolish.
Let me conclude by returning to where I and the GDPR began—with our relationship with the European Union and the extent to which this Bill will or will not help us secure the adequacy agreement that we all agree that we need and that the Prime Minister confirmed that we needed on Friday. Why does it matter? I urge Members to look no further than the excellent work done by techUK, which has explained in detail just how much our economy depends on data flows. Let me share a local example. A few weeks ago, I visited Jagex, a video games developer in my constituency. It was not my first visit. It is a fantastic and inspiring example of what work might be like in the future, and its model is very positive. Visiting Jagex, with representatives from Ukie, the trade body for the video games sector, it was explained to me just how vital data flows are for the sector. It is because these games and their players span many nations, and their data does not respect national boundaries.
On a Friday afternoon, 100,000 people were playing RuneScape—I was told that, over the weekend, there would be more than a million players. Huge flows of data are serviced and maintained by skilled staff in Cambridge, who are from all over Europe and beyond. That is the future, and it is a good future, but it requires that we keep open those flows of data, and—although this is for another day—those flows of people. None the less, we are potentially putting this UK success story at risk. Some of the national security and immigration exemptions in this Bill are potentially enough to deny us data adequacy in the eyes of some countries in the EU. We need to ensure that this Bill is not going to cause us harm further down the line.
There is also the question of timing. These are complicated and controversial issues, but the Bill must be on the statute book in a mere two months’ time—on 6 May—for the new rules to be in place for 25 May. Missing the GDPR implementation date really is not a great look for a country that is trying to achieve a data adequacy agreement with its international partners.
We may also need to assess other countries for their adequacy. Who is to do that assessment? The ICO does not feel that it is appropriate for it to do that, so is the Department for Digital, Culture, Media and Sport really ready? Does it have the resources? Has the work started? And what of the complexities of the relationship with the United States of America and the privacy shield? At the moment, we are covered by the data privacy shield as an EU member state and a similar arrangement would be welcome, but the American system is complicated, with no federal oversight and it may not be quick.
I welcome this Bill overall, but significant challenges remain. I look forward to seeing how the Bill will be improved in Committee, particularly around safeguarding data owners’ rights, ensuring that we can make best use of our health data, and ensuring that universities and researchers have the clarity that they need to continue their excellent and life-saving research.
I hope that the Minister will go further to explain the ways in which she is preparing for adequacy decisions that may need to be both applied for and made by the UK in the coming months and years. Most importantly, perhaps, I hope to learn further from Ministers how this Bill will be adapted so that our approach to the balance between privacy and security is sufficiently aligned with EU standards, meaning that adequacy can be achieved smoothly. I am afraid that “ambitious managed divergence” simply will not cut it, and I leave the Minister to explain how the conundrum can be resolved.
Richard Drax (South Dorset) (Con)
It is a genuine pleasure to speak under your chairmanship after your absence, Mr Deputy Speaker. Welcome back; it is lovely to see you here.
I was a journalist for 17 years: five with the local press, two with the local media and ending up with 10 years at the BBC. I therefore have an interest in this debate, particularly in the Lords amendments, with which I entirely disagree.
In my very brief speech—time is pressing—I would like to take the House back to the royal charter. Everyone in the House will remember that all parties agreed at the time that, as a consequence of the phone hacking, there should be a royal charter. I have been in this place only seven years so I am still a whippersnapper in that sense, but I have always been very concerned when parties on both sides of the House agree with something. It normally means that something is dramatically wrong. Fifteen MPs voted against the royal charter. I and 14 others realised that there was some state control or state implication that would interfere with the free press. We were not happy with that, so we voted against it.
The key point—a point that I have yet to hear from any party on either side of the House—is that phone hacking is illegal. People are not allowed to do it, and as some journalists have found, they go to jail if it is done. Now, I do not want to take away from those who have suffered or the victims of phone hacking, including the royal family, of course. It was simply appalling. As a former—I would like to think—honourable journalist I personally never took part in that activity; nor did I know anyone who did. This is another point: phone hacking was done by a tiny minority of journalists, who were wrong and who caused immense damage to the reputation of the press in this country.
In my very humble opinion, the press in this country is one of the cornerstones of our freedom and democracy. As I have discovered in the short time that I have been here, when we tinker with legislation it is all too often a huge sledgehammer to crack a nut. Those who are introducing legislation and those who are debating it often do not think about its consequences. What would happen if we started to impede and encroach on the freedom of the press? The press understandably reacted with anger, claiming that the royal charter would destroy local papers who simply could not afford it. As my hon. Friend the Member for North Devon (Peter Heaton-Jones) said—this is true and quite extraordinary—section 40 of the Crime and Courts Act 2013 forced newspapers that had not signed up to a state-supported regulator to pay their own and, indeed, their opponent’s legal costs in libel cases, even if they won the case. That is not freedom of the press. It is not even fair law. It is bad law, made on the back of a terrible wrong committed by a very few people in what is generally, across the world, a highly respected business or profession—that is, the press in this country.
I have been the victim of some pretty interesting press reporting. I confess that I have been trying to put some solar panels on my land. I remember that one columnist in the Daily Mail wrote a double-page spread that was inaccurate. Having read it, I felt as though I had almost murdered someone. I was somehow this appalling landowner who wanted to do these appalling things. I had imposed my will on my tenants, crushed debate and all these things, but none of it was true. In fact, the opposite had been true and always is in that case. To be fair, the paper did ask me for a comment but I knew that, were I to comment, it would be a small piece at the bottom right of the article, and that the other two and a half, three or four columns would all be anti-Drax. But I can live with that because I want a free press in this country. I want a free press to hold us, businesses and powerful people—yes, like Mr Mosley—to account. If I were in the wrong, the press would have a right to dig out of me what I had done wrong, even though I might not want them to do so.
Andy Slaughter
Does the hon. Gentleman think that people such as the McCanns, Milly Dowler’s family and Christopher Jefferies should live with the consequences of being traduced and victimised by the press? Does he not feel that casting the press as the victims, when we know that they are actually controlled by a small number of extremely wealthy and irresponsible individuals, is putting things exactly upside down?
Richard Drax
Forgive me, I did not quite hear the first part of the hon. Gentleman’s question, but I think that I got the general gist. The point about multimillion pound media barons is a red herring. I have worked in many media institutions, including newspapers and other organisations, and those people do not get involved. We were left very much to our own devices to report accurately, fairly and truthfully. Yes, they may be very wealthy, but good luck to them. They—or their fathers or grandfathers —have worked extremely hard to build up a business that employs tens of thousands of people in this country.
The point must again be made that the online media in this country—[Interruption.] The right hon. Member for Birmingham, Hodge Hill (Liam Byrne), who I seem to recall told us that there was no money left, groans from a sedentary position. Online, anyone can say what they want, and they do. There is no recourse for the many thousands of victims of online abuse, intimidation and threats—threats to kill. What comeback is there for them? Nothing at all. That is where I urge the Government to look very carefully to ensure that the online media face the same standards that the national press would face.
I am not going to keep the House waiting much longer, because others want to speak. It is my view—along with others, I would think—that only those with anger, revenge or even guilt in their heart would support these amendments and damage a free press, which is the cornerstone of our democracy. The Leader of the Opposition wants to crush the press; I think, “We’re coming for you” is what he said. No, that is not what the British people want and they certainly will not vote for it. A free press is all important.
Stephen Timms (East Ham) (Lab)
Like my hon. Friend the Member for Cambridge (Daniel Zeichner), who gave an excellent speech a few minutes ago, I will focus my remarks on the data protection aspects of the Bill. The Minister will have seen the press report this morning on research carried out by the Federation of Small Businesses showing that fewer than one in 10 small businesses is fully prepared for the obligations that this legislation imposes on them, and just under one in five has not yet heard of the GDPR. These obligations all take effect at the end of May—in less than three months’ time—so whatever the merits of this Bill, there is clearly a huge amount of work to be done in drawing the attention of those affected to what it means.
Ministers have made some changes to the Bill during its passage through the other place since we last discussed it in this Chamber on 12 October. In that debate, I and others made the point that my hon. Friend the Member for West Bromwich East (Tom Watson) made earlier—that leaving article 8 of the European charter of fundamental rights outside UK law poses a serious threat to our achieving a data adequacy determination from the European Commission in future. I therefore welcome the addition of what is now clause 2, which partly addresses that. However, I do not think it goes far enough, so I will be supporting my hon. Friend’s proposal that article 8 should be added to our statute book. Lord Stevenson tabled an amendment in the other place that said:
“The protection of personal data may not be lawfully restricted or limited unless such restrictions and limitations are consistent with the principle of proportionality.”
That is an important additional protection that ought to be in the Bill. I hope that we will be able to debate that amendment in Committee.
There is some confusion in the Government about all this. The Secretary of State set out how important it is that we keep our UK data regulation aligned with the regulation in the European Union because of the importance to the UK economy of personal data transfers between the UK and the EU. He is absolutely right about that. However, in recent months, the Foreign Secretary and the International Trade Secretary have suggested from time to time that it would be a good thing if the UK could deviate from EU rules on data protection. Last July, for example, the International Trade Secretary said in the United States—I am quoting from a report in the Financial Times—that the UK was more in line with US calls for information to be allowed to flow freely across borders while Germany and other EU countries insist on localisation. He was getting a bit confused about two different things, but he is clearly suggesting in that remark, as in others, that it could be a good thing for the UK to deviate from EU data protection rules. In fact—the Secretary of State is absolutely right about this—it would be a disaster for the UK to deviate from EU data protection regulation, because if the EU were to judge our data protection rules to be inadequate, a large chunk of the UK economy would immediately be without any lawful basis. That could affect exactly the kind of innovative company to which my hon. Friend the Member for Cambridge drew attention—a games company with players all over Europe who, as a part of playing the game, need to be able to send personal data between their country and the European Union.
Matt Hancock
The right hon. Gentleman has made this point in these debates several times, and I want to reassure him on the Government’s precise position. I stated this in my remarks, not speaking from notes, but let me read to him what the Prime Minister said in her speech on Friday:
“we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one stop shop’ mechanism for resolving data protection disputes.”
So there you have it.
Stephen Timms
I am grateful to the Secretary of State, and I welcome that commitment on the part of the Prime Minister.
The problem is, however, that the International Trade Secretary and the Foreign Secretary have been saying different. That led to techUK, the industry body, writing to the International Trade Secretary last month to highlight the dangers. This was reported by that reliable publication, The Daily Telegraph, on 19 February, with the headline: “Tech industry warns Ministers not to drop EU security laws”. The report began:
“The British tech industry has issued a stark warning to leading Brexiteer ministers that diverging from EU data protection standards after Brexit will ‘undermine’ the UK’s status as Europe’s leading tech hub.”
The Secretary of State is absolutely right not to have gone down the same road as his right hon. Friends, and I very much welcome what the Prime Minister said about all this on Friday. However, there is clearly a problem in the Cabinet. I gather that after sending that letter, techUK received a reassuring response from the Department, and then a few days later a non-executive director at the Department for International Trade was quoted as saying, “Complying with EU standards on data is not the only solution.” But the truth is that for a large part of the UK economy, it is the only solution. We need to be absolutely clear about this. I am delighted that the Secretary of State is clear about it. Of course, that is why he is bringing this Bill before us and why he has altered it in line with what a number of us said in October.
Matt Hancock
I hate to take the wind out of the right hon. Gentleman’s sails, but it was unusual to receive that letter from techUK, because rarely as a Minister have I been lobbied so strongly in support of my own position.
Stephen Timms
I am glad that the Secretary of State has been lobbied in support of his own position, but he needs to watch his back against Ministers who lack the clarity that he has expressed—particularly the International Trade Secretary and the Foreign Secretary, who continue to say that there is merit in divergence. There is no merit in divergence at all. Significant numbers of tech start-ups are already going to Berlin rather than basing themselves in the UK because of the uncertainty about this issue. The more uncertainty there is, fanned by some members of the Cabinet, the greater the economic damage to the UK.
This is a very clear example of the situation we are going to find ourselves in more and more when we have left the European Union. It will be asserted that because of our economic interests, in this case, we should comply with rules drawn up by the European Union—in this case, the general data protection regulation—but we will no longer have a vote about what those rules should be. We will become a rule-taker. I welcome the commitment that the Prime Minister has made to a place for the UK’s Information Commissioner on the European data protection board. That will be helpful. It means that we will at least get a voice in these discussions when the rules are being drawn up—but we will not get a vote. We will be less influential in EU data protection laws than we have been as members of the European Union. We need to recognise that our influence, including over laws that we are going to have to implement ourselves, will be less in future than it has been up to now.
I would very much welcome the Minister telling us—my hon. Friend the Member for Cambridge made this point as well—how, in future, we are going to make adequacy determinations about other countries’ data protection laws. Are we going to adopt the EU list and say that those 12 countries are adequate and others are not, or are we going to have our own processes? How is it going to be done?
I echo the concerns expressed by a number of Members about the threats to our future data adequacy determination that come from the immigration exemption and the national security exemption. Those were not well defended by Ministers in the debates in the other place, and the justification for them is not clear. As others have said, they leave us open to criticisms of our data protection regulations that could threaten our future adequacy determinations. I am very keen to hear the Minister’s response to those concerns in particular.
Colin Clark (Gordon) (Con)
It is a pleasure to follow the right hon. Member for East Ham (Stephen Timms).
As we prepare to leave the European Union, this country is committed to remaining a global leader on data protection. Data flows are important for the UK and the EU economies, and we recognise the need for safeguards. The Bill is important in both promoting the flow of information sharing and protecting individuals’ personal data, while complying with the EU framework. It will ensure that our domestic data protection rules are aligned with our economic partners at the point of exit from the EU.
I welcome the measured response of the hon. Member for Argyll and Bute (Brendan O’Hara) to the Bill. While I agree that a balance must always be maintained between press freedom and the freedom of the individual, the amendments passed by the House of Lords are a direct threat to press freedom. This Government want to ensure that the press is well regulated and has high standards. As my hon. Friend the Member for North Devon (Peter Heaton-Jones), who is no longer in his place, said, the amendments would do damage. Newspaper circulation continues to decline.
Christine Jardine
Would the hon. Gentleman contend that in the pursuit of press freedom, we should also do away with contempt of court and libel? That, to me, as a former journalist, is equivalent to suggesting that we should overturn the House of Lords amendments. The press is already regulated, and those regulations are important. It is important that we continue to ensure that we have a responsible press.
Colin Clark
I thank the hon. Lady for her intervention. I have great respect for her, having debated with her on many occasions as we both tried to get elected to this place. I think that the amendments go a lot further than that and will do damage, and that is the crux of it.
Leveson 2 is unnecessary and would be backward-looking, as other Members have said. Regulation has moved on. The rise of digital news has led to the closure of hundreds of local newspapers, and commencing section 40 would threaten their fragile financial viability even more. The venerable newspapers in my own area—The Press and Journal and The Courier in Dundee—are important to the north-east of Scotland, but their sales have dropped by 10%. Section 40 would be calamitous to those papers. Local papers will become more important as we devolve powers to local communities, which we want to do. The Huntly Express and the advertisers, which have carried many stories on the hon. Member for Edinburgh West (Christine Jardine) and myself over the years, would be undermined and threatened. We cannot see that happen if we want local democracy to continue.
Politicians deciding how newspapers should behave is a direct threat to our democracy, of which a free national and local press is an essential component. The data protection regulator, the Information Commissioner’s Office, will go a long way to defend consumer interests and can issue higher fines of up to 4% of global turnover. I was glad to hear the Secretary of State reassure us that the burden on businesses will be reduced. The UK is and will remain a safe destination for personal data. The Bill will help Britain prepare for a successful Brexit and make its own laws in the future.
Joanna Cherry (Edinburgh South West) (SNP)
Like my hon. Friend the Member for Argyll and Bute (Brendan O'Hara), I broadly welcome the Bill and its aims. A strong data protection framework is essential for the protection of human rights, particularly the right to privacy. Having a strong data protection framework is also key to the granting of adequacy by the EU Commission following the UK’s exit from the European Union, which of course I very much regret. However, the Bill falls short in the protections it provides in a number of areas, many of which have been ably outlined by my hon. Friend.
I want to focus on the immigration exception. Many of my hon. Friends and I have had emails from constituents who are particularly concerned about it. I am indebted to the Bar Council and the Immigration Law Practitioners Association for the briefings they have provided. Like others, they have pointed out, as I said in my intervention on the Secretary of State, that paragraph 4 of part 1 of schedule 2, which provides for the immigration exemption, is not reflective of the stated permissible exemptions under article 23 of the GDPR. If the Bill goes ahead unamended, it could cause us great problems for any finding of adequacy when we leave the European Union.
If enacted, that exemption will allow the Home Office, for the purposes of immigration control, to deny individuals access to their personal data—information that people can currently access by making a subject access request. The availability of that information is often vital to the fairness of legal proceedings in which individuals need to enforce or protect their rights. For example, for an individual effectively to challenge detention or an unlawful decision by the Home Office, or to make an application for immigration or asylum, they need to understand their own immigration history and to know what information the Home Office holds about them.
This is the information on which claims and legal challenges are often based. When both sides do not have access to the same information, the fairness of legal proceedings is inevitably compromised. Subject access requests are the only route through which legal practitioners can obtain access to that information and understand what are often complicated immigration histories. We all, as Members of Parliament, have experience of complicated immigration histories of people who come to see us in our surgeries. The reality is that many of these people do not have access to the relevant documents, or an accurate recollection or legal understanding of their circumstances. These concerns are not fanciful; they are very real.
To give an example, when someone is held in detention, they do not have access to their paperwork, for obvious reasons. They need their solicitor to be able to make a request to the Home Office to get the necessary information. Another important example is applicants who have been the victims of domestic violence, who have often been controlled by their partners for years. We introduced legislation in Scotland recently to deal with coercive control and recognise it as a real problem in domestic abuse. When a woman, or indeed a man, has been the subject of coercive control for many years before seeking help with immigration matters, a subject access request may be the only way of establishing the basis of any application for settlement and of obtaining independence from an abusive partner.
Sir Edward Davey
I am grateful to the hon. and learned Lady for giving way; she is making an excellent speech. Is it not ironic that the Government are planning to consult on improving protections for women who are the victims of domestic violence, but in the Bill they are taking protections away from some of the most vulnerable of them?
Joanna Cherry
Indeed it is ironic, and actions speak louder than words. I will certainly raise that matter with the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle (Victoria Atkins), who very decently has offered to meet me to discuss legislation that the Government have in mind about domestic abuse.
Those are just two examples of when it is very important for legal advisers to be able to make a subject access request to the Home Office and not to be met by the sort of brick wall that this immigration exemption, if enacted, would allow. I say “just two examples” because the Immigration Law Practitioners Association has produced, in an annexe to its briefing, a large number of real-life cases that illustrate the very wide range of circumstances in which subject access requests are used and are essential.
It is a sad fact that the Home Office has a well catalogued track record of making unlawful decisions. In a recent answer to a House of Lords question, the other place was told that in the 10 years to 2015, 250,000 appeals were allowed against the Home Office. Allowing the Home Office an exemption from subject access requests in immigration matters will have the effect of insulating the Government from challenges to unlawful decision making, and that is just not right. The Home Office does not apply the law as it has been mandated to by Parliament—or with the consistency that it should. That is why it loses so many cases in the courts.
We often come to the House to hear criticisms of Home Office procedures. While we cannot rectify those procedures under the auspices of the Bill, what we can do is not allow the status quo to get any worse. I exhort the Government to remove this exemption from the Bill, particularly as there are other exemptions in it that the immigration authorities can seek to rely on for the processing of personal data in accordance with their statutory duties and functions, or in the case of an offence having been committed.
This broad-ranging exemption will impact substantially on human rights, and it may also impact on an adequacy decision from the European Commission. Indeed, EU citizens today expressed their concern that these exemptions might have an impact on their ability to enforce their residency rights after Brexit, under the agreements currently being brokered. I urge the Government to look at this very carefully. They have yet to give any reasonable justification for the inclusion in the Bill of this very broad exemption, and I look forward to hearing one, if it is brought forward.
I share the concerns that led to amendments being passed by the Lords, and the cross-party concerns expressed in this House last week when the Government announced their decision to renege on the commitment to hold the second part of the Leveson inquiry. I was very glad to hear the points of order earlier on what Sir Brian Leveson actually said in his letter about his desire for Leveson part 2 to go forward.
I am not convinced by the reasons given by the Government for their decision to ditch any plans for Leveson 2. I endorse what the hon. Member for Rhondda (Chris Bryant) said in this House last week: he said that Members
“should be able to speak without fear or favour.”—[Official Report, 1 March 2018; Vol. 636, c. 971.]
That principle is as important as the freedom of the press, because the need for Members of Parliament to speak without fear or favour comes from the same right as the freedom of the press: the right to free speech and freedom of expression. I am sorry to have to say that I believe that the UK Government have acted out of fear of the press barons, and through favour, because so many of those press barons share their narrow right-wing agenda. There have been many genuine victims of press abuse, from grieving parents—everyone knows whom I am speaking about—to the relatives of those who died in the Hillsborough disaster, and they deserve better than this.
My hon. Friend the Member for Argyll and Bute made it very clear that it is not acceptable that the House of Lords should seek to legislate on matters devolved to Scotland; previously, section 40 applied only to England and Wales. As this is a devolved matter, what happens on press regulation in Scotland is for the Scottish Parliament. Although my colleagues in the Scottish Government have no plans to legislate in this area at the moment, there is debate within the SNP, as in the other political parties, about the best way to ensure that the terrible abuses uncovered by Leveson do not happen again.
In this House, promises were made by the UK Government to implement Leveson’s recommendations, and suspicions have rightly been raised about the motivation for the U-turn in the Conservative party manifesto—a U-turn that was completed with last week’s announcement. It is important to be clear that this is a volte-face on a previous cross-party agreement. I have yet to be convinced that there is not still the same need for the section 40 legislation, and I have previously tried to debunk some of the myths when I have spoken about it in this House.
Let us not sweep these issues under the carpet—let us have a full and frank debate about them—but we should not let the Leveson issues completely dominate the debate about the Data Protection Bill, because it covers very important issues beyond Leveson, of which I have mentioned only one: the immigration exemption. I look forward to debating these matters further as the Bill progresses through the House.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
I am delighted to take part in this debate on the Data Protection Bill, and it is a pleasure to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry).
In my brief contribution, I will focus mostly on amendment 147, passed by the other place, which would implement section 40 of the Crime and Courts Act in relation to data protection. I am pleased that the Government will seek to overturn it. If it remained, it would be a huge blow to each and every local newspaper in the Scottish borders in my constituency. Under the provision, all newspapers and magazines not signed up to the state-approved regulator would be liable to pay for the other side’s costs in an action for a breach of data protection, whether they win or lose the case. As data touches on virtually every aspect of journalism, a legal action relating to almost any action by our press could be dressed up in a way that would take advantage of this provision.
For all publishers in the Scottish borders, this could have serious consequences. The recently set up Hawick Paper or the community-run Eskdale & Liddesdale Advertiser could not afford to risk a case going to court, given the crippling costs that might be involved. They would have to stop investigating a story, or print an apology for something that was actually true. The alternative would be going to court and possibly paying the costs, even if they were successful. Even the titles backed by the Johnston Press machinery in the borders, such as The Southern Reporter and The Berwickshire News, could face closure if any claims were brought against them. Johnston Press recently announced significant losses, and any further setbacks might result in the loss of further local titles, not just in my constituency, but in many other parts of Scotland. It would be the same for the Borders Telegraph, which covers another part of my constituency in the Scottish borders.
I find myself in the rather, if not extremely, odd position—this might be the only time I can say this—of agreeing with Nicola Sturgeon. Last year, she said in relation to section 40:
“I don't think it’s an exaggeration to say that it would threaten the viability of local newspapers.”
The purpose of the Attlee amendment was to incentivise media operators to sign up to press control in respect of data protection claims. This may well be a laudable aim, but section 40 is a clunky way of achieving it, and amendment 147 was not the appropriate vehicle to address what is a much wider issue, not restricted to data protection.
This Bill is concerned with modernising data protection laws, not press regulation, and there is much to be found in this Bill that is welcome. It is certainly time, in this digital age, for an update of our legislation. Much of the Bill implements the EU’s general data protection regulation, which the UK helped to shape. By adopting it in domestic law, we ensure that businesses are able to operate across international borders as we leave the European Union. We have also exercised our right to derogate from the GDPR on key areas, such as the age of consent and freedom of expression in the media. I believe it strikes the right balance between individual protection and allowing the free flow of data.
I therefore welcome the Bill, and I particularly welcome the intention of the Government to reverse the amendments made in the other place, which I believe would in effect restrict the freedom of the press and might damage the local press, not only in my constituency, but in many other parts of Scotland.
Darren Jones (Bristol North West) (Lab)
I declare my interests as set out in the Register of Members’ Financial Interests.
The data economy is a significant part of the UK economy, with techUK estimating that it will be worth over £240 billion by 2020. As a Bristol Member, I represent part of a region with the largest digital economy in the country outside London. Tech City estimates that £8.1 billion is generated in revenue from the data economy in the Bristol and Bath region.
Digital transformation is not all about business revenues, important as those are. It is about the modernisation of our public services—including, as my hon. Friends have said, the use of citizens’ data owned by the state, such as NHS data—where we fall significantly behind our European neighbours, and about the digitisation of traditional industry, where we also fall behind. Efficient spending of taxpayers’ money on modernised public services and the cracking of our economic productivity challenge will flow from this technological reform. However, as my hon. Friend the Member for West Bromwich East (Tom Watson) said, we must also remember that this is about people as well as processes. I welcome the work that he and others did on the future of work, and I hope that we can debate those issues further in this House.
While digitisation is not all about personal data, it goes without saying that the Bill is incredibly important by providing a comprehensive framework for the collection, processing and protection of citizens’ personal data, and in setting out the rights and enforcement actions that citizens, as data subjects, will have. However, the Bill needs to go further, because this is about something much more fundamental. Yes, we have a role to play in topics such as an industrial strategy and reform of our public services, but we also set the ethical and values-based legal framework on behalf of our constituents. This is about applying traditional civil liberties in a modern setting, where our constituents feel informed, empowered and in control when it comes to the use of their personal data. The Secretary of State said that the Bill would help consumers to build trust. There are good laws on the statute book today, but citizens do not necessarily trust everyone who uses their data, because they do not understand how it gets used or what their rights are. While the Bill is an improvement, I hope more can be done to educate and inform citizens about their rights and build that trust.
Given the time constraints on the Bill—UK derogations need to be on the books by 25 May, and the law enforcement directive by 6 May—I understand why the Government would like debate on it to be narrowly focused. In many ways that is a shame, as this is a prime opportunity to debate some of the most pressing public policy issues of the day. In one way, that is one of the greatest challenges for the Bill, because—this is not a criticism but a statement of fact—this debate is about more than what is in the Bill. The general data protection regulation, which we have heard about this evening and will apply automatically in a few months’ time, will not be implemented by this Bill. If Brexit happens, the regulation will be copied and pasted into UK law under the European Union (Withdrawal) Bill—I say to those on the Treasury Bench that I am optimistic regarding “if” Brexit will happen—yet to my knowledge we have not debated the GDPR or its interpretation in this House. I assume that we will have that opportunity when we consider the GDPR statutory instrument under the withdrawal Bill process.
Other issues include the e-privacy regulation, which is currently stuck in trialogue in the EU; the implementation of the network and information security directive to address cyber-security breaches; and the establishment and purpose of the data ethics unit in the Minister’s Department, a body whose work I hope the House will have further time to debate. I welcome the Information Commissioner’s comments before the Science and Technology Committee a few weeks ago, when she suggested that the new data ethics unit could be the place for public debate about what the public find acceptable in this new, fourth industrial revolution, and that it should not take on enforcement powers, which the ICO currently has. I hope that this place, as well as that unit, will be able to lead that debate with the public.
There are many issues that warrant debate—I look forward to rehearsing them in Committee—ranging from the requirement for human intervention in the use of automated decision-making algorithms, which is something that I and other hon. Members on the Science and Technology Committee have been looking at in detail, to the application of the law to newly defined processes such as the re-identification of pseudonymous data and the public policy requirements to protect children online, not just from criminal issues but from commercial exploitation, through to powers of collective redress for citizens who might not feel able to bring forward complaints or claims of their own. There are also other, most important issues, such as whether the Secretary of State has appointed his own data protection officer for the Matt Hancock app.
Sadly, time does not permit that debate today, so I will focus my final remarks on some issues around the most important process of getting an adequacy decision from the European Commission. First, and in line with the Prime Minister’s latest views that she gave us from the Dispatch Box today, we must be honest about the need to comply with EU law in the future, because to maintain our finding of adequacy, we must continue to be adequate. The European Commission does not take a snap-shot view and say we are adequate for ever more, but will make an ongoing assessment of our compliance.
That means implementing the decisions of the European data protection board, which is subject to the jurisdiction of the European Court of Justice. I hope that Ministers will not say that we will not comply with those decisions, because we would risk failing to win our adequacy decision. Although I agree with the Government’s aim of securing a seat at the table of the data protection board for our Information Commissioner, as she said to me at our Select Committee a few weeks ago, third-country representatives have little influence and, of course, no vote. As a Canadian, she knows that well from her previous work. We must therefore be honest in saying that we will continue to apply EU law as it comes from the European data protection board but that we will have no seat at the table in defining it.
To turn to the debate between my right hon. Friend the Member for East Ham (Stephen Timms) and the Secretary of State about the divergence of views among those on the Treasury Bench, we have seen today that the principle of “America first” will be at the heart of any prospective trade deal with the United States of America, meaning that for agricultural products, for example, the US regulatory framework takes precedence. I hope there is no inclination from the Government, in trying to seek a digital trade deal with the United States, to go for a US-style regulatory framework rather than one with the European Union.
Secondly, there are serious concerns about the Government’s powers under the Bill—from their ability to self-legislate derogations for themselves for extremely broad reasons, such as the exercise of their “official authority”, which I think means “anything at all”, to the ability of various Departments to share personal data without citizens’ knowledge, such as by using pupil, medical or police data for the again broadly defined purposes of “immigration control”, which has been mentioned frequently in this debate.
Lastly, there is the issue of national security. The case in the name of my hon. Friend the Member for West Bromwich East brought a challenge against the Government’s bulk collection of data powers under the predecessor legislation to the Investigatory Powers Act 2016. Interestingly, that case relied on rights in the privacy directive, which we are not discussing today, and articles 7 and 8 of the EU charter of fundamental rights, which the Government seek to abolish under the European Union (Withdrawal) Bill. I hope the data framework that we establish will not prevent such further challenges against national security measures.
The Government seemed to anticipate the application of the ECJ ruling by the Court of Appeal in the case of my hon. Friend the Member for West Bromwich East and others and consulted last November on what amendments were needed to the Investigatory Powers Act to bring it into compliance with the ECJ ruling. In my view, the Government’s position seeks merely to make the case that this whole conversation is one of national security and therefore irrelevant to the European Union. However, as the Schrems case shows, the overall data protection culture of a third country, including its powers of mass surveillance for national security purposes—itself not an EU competence—will be taken into account by the European Commission when deciding on advocacy.
I hope the Minister has a clear answer for the House about how the Government seek to remove fundamental rights, while balancing them to seek adequacy, and whether she has any further insight into what the Prime Minister meant today by getting something “beyond adequacy”. I am a man of definitions and I have been somewhat confused. The Secretary of State previously talking for something akin to adequacy, and I believe that what we need is adequacy. The Prime Minister is now talking about “beyond adequacy”. It would be useful to have clarity on what those terms mean.
Finally, let me make a short comment about Leveson 2. I might understand a Government’s intention to dilute regulations for the regulation of the press that they see as too restrictive—something, I should add, that I disagree with—but I find it extremely hard to understand how a Government with any heart can decide with such haste and disrespect to bring to a close the ability for people who have been victims of press intrusion to seek clarity and justice. That seems both heartless and unnecessary, albeit perhaps politically expeditious. I hope the Government reconsider their position on that most important matter.
Mike Wood (Dudley South) (Con)
I intend to speak only briefly, as this is a strong Bill that will empower people to take control of their data. I am pleased to see such broad support for it receiving its Second Reading, but I am not able to support the provisions in the Bill that would implement section 40 of the Crime and Courts Act 2013. It seems that I am one of the few Members speaking in this debate who has not had to declare an interest as a former journalist—unless, Madam Deputy Speaker, you count four days’ work experience with the Stourbridge News 25 years ago, just to put that on record. A lack of journalistic experience, however, does not mean not understanding or appreciating the importance of a strong and free media for our political, community and social lives.
The relationship between politicians and the media ought to be uneasy. It is safe to say that the press and the media more broadly can be something of a pain in the neck. On occasions, that sensation may be felt in an area a little lower down, and I know that from personal experience. Shortly after I was elected, I stayed at the Carlton hotel at the back of Victoria station. No one could describe it as luxurious, yet The Guardian reported this as claiming on expenses to stay at the Ritz. If I could negotiate a room at the Ritz for £119 a night, I feel that the Prime Minister might find a role for me in the current negotiations. Clearly, people will have different levels at which they feel the need to respond to such inaccurate claims.
Mr Gregory Campbell (East Londonderry) (DUP)
The hon. Gentleman says that some sections of the media can be a pain in the neck. No one should take exception to that. Setting aside any pains anywhere, the problem many of us have is that on occasions some sections of the media are exceptionally unfair. They do not seek balance and they do not seek equity in terms of the various parts of any debate. That is why many of us have a problem, particularly with the broadcast media, including certain sections that we pay for.
Mike Wood
I understand exactly the hon. Gentleman’s point, with which I have a little sympathy. However, when the media are behaving unfairly and something is inaccurate, distorted or misleading, it is of course right that there are proper procedures for redress. I have absolutely no problem with greater access to justice, but, on the measure’s own terms, it would fail in this regard.
Clearly, the hope is that the proposal would somehow pressure the media into signing up to a state-approved regulator, but for those who remain outside such a system, changing the basis for awarding costs would not improve access to justice. It would not prevent our libel and defamation laws from being the preserve of the already rich and powerful. All it would do is deter proper, quality investigative journalism. It would deter community and local reporting, where, shall we say, conflict within communities is not unheard of. If, when a claim is brought, there is an assumption—not quite but almost without regard to the merits of the case or who the claimant is—that the defendant will have the costs awarded against them, that is an enormous disincentive to continue with a story, even when doing so is clearly in the public interest. It must be the case, when there is criminal behaviour and when something is actionable—
Mike Wood
I am just concluding. When something is criminal, the full weight of the law should fall on those who break it. When something is actionable, we need streamlined procedures that actually work—an array of alternatives, not just the one-trick pony in this proposal. However, when publishers are confident that their story is accurate, fair and proportionate, the only proper response is to publish and be damned.
Christine Jardine (Edinburgh West) (LD)
It is a great honour to follow the hon. Member for Dudley South (Mike Wood). It is fair to say that my party broadly supports much of this Bill, which is a vital component in our continued and smooth co-operation with the EU, should Brexit go ahead, but that support is not without qualification, which I shall come to shortly. As an EU member, we are assumed to be compliant with the requirements of the Union, but as a third party we will be required to demonstrate a suitable standard of protections. Failure to do this would jeopardise the co-operation that even the most zealous Brexiteers, I should imagine, want to maintain in defence and security.
The Data Protection Bill and the general data protection regulation bring existing best practice into law. This is not an onerous burden; it is a natural progression for information rights in the digital age. However, we have reservations about some aspects that we will discuss later. My right hon. Friend the Member for Kingston and Surbiton (Sir Edward Davey) intends to speak about the proposed immigration exemptions. I had intended to concentrate on areas that deal with our personal data and the help that industry and charity organisations will need to cope with this regulation, but as the debate has progressed, I have become increasingly concerned about the Government’s intention to overthrow the amendment by the House of Lords. The Data Protection Bill is an important vehicle through which to bring forward recommendations from the Leveson inquiry, as this House promised to do. Data processing for investigative journalism purposes must strike a balance between press freedom and the individual’s right to privacy.
As a journalist, I value freedom of speech and freedom of the press as much as any other person. As a journalist, I was always impressed by and proud of colleagues who uncovered miscarriages of justice, political corruption or malpractice in India, for example. The freedom of the press to scrutinise and hold to account those in power—as the hon. Member for Dudley South said, the relationship between journalists and politicians should not be an easy one—is vital in a democracy. It must not, however, be at the cost of the individual—to their privacy in times of grief or hardship, to their hard-won personal and professional reputations—or mean chasing them when they have done nothing wrong other than perhaps disagree with the stance of a newspaper. That cannot be the way.
Newspapers in this country are not free of regulation. Broadcasting has to apply the standards set by Ofcom. Newspapers have to abide by the law of libel, contempt of court and the criminal code. All those things are necessary, but in an increasingly digital age it is necessary to ensure that all publications abide by data protection regulations. It is more than 20 years since Calcutt warned the press that they were drinking in the last chance saloon. Well, they have had their drink and frankly they have been thrown out. The Press Council failed; the Press Complaints Commission failed; and this House promised to bring forward a statutorily underpinned body. Self-regulation with statutory underpinning—it is good enough for every other industry, it is good enough for the Law Society, so why are we not prepared to follow through for the press? The vast majority of journalists are honourable. As the hon. Member for South Dorset (Richard Drax) said, we are talking about a small minority, but that small minority can do immense damage to individual’s lives—we saw it with the McCanns, with Milly Dowler and with the Hillsborough inquiry—and it is not good enough for us to say they are doing a good enough job; they patently are not, which is why I hope the House will uphold the amendments passed in the other place.
I turn now to what I had intended to speak about: the rights of individuals and the problem many have in talking about data and regulation. It sounds like a technical issue—something that does not affect them directly in their everyday lives. Algorithms are a mystery that many of us have no desire to investigate, never mind solve, yet they are a major influence in our increasingly technology-driven and social media-driven lives. Data harvesting can sneak into every corner of our existence, undertaken by public and private organisations—those we deal with and many that just want to deal with us, or use what they know about us. The information we provide tells them how to sell us everything from cars and mortgages to life insurance and funerals. As more and more information about our daily lives is digitally recorded, it is important that individuals have more control. With the passing of the Bill, we should all be able to rest assured that the information is being used both ethically and responsibly, including by the national and regional press, and that we have access to ensure that it is accurate, whether it is available to individuals or public or private bodies.
We should take into account that the information we provide can be used to infer information we have not given. For example, I am reliably informed that people who like curly fries are more likely to have high IQs. If someone was to pass on that culinary preference with their data, floods of adverts aimed at highly intelligent curly fries fans would be likely to follow. Occasionally, of course, it can all go wrong. Just after suffering a recent bereavement, I was in touch with a nationally known undertaker. Immediately afterwards, I was bombarded with adverts about planning for my own funeral, which is not really what anyone in that position wants. That is just an illustration of why it is important to the public that they have the right to view and correct or delete their own personal data, as laid out in the Bill. None of us wants false information out there about us that could prejudice decisions or jeopardise our security.
That, surely, is particularly important in relation to the many young people—a significant number of them children—who are regularly online. Ofcom estimates that 99% of under-16s are online for nearly 21 hours a week. The Children’s Society and YoungMinds surveyed more than 1,000 young people about their online experiences, both generally and more specifically with regard to cyber-bullying, and found that 61% of the under-18s who were surveyed had had their first experience of social media before the age of 13.
In setting the age of consent, it is important to be realistic about the lives of young people. Sixteen may not be an appropriate age of consent, or a realistic reflection of a situation in which practice allows only over-13s to have an account, but with no age verification. Young people need to learn their data and privacy rights much earlier, and that should be a mandatory part of their personal, social, health and economic education at school.
Jim Shannon (Strangford) (DUP)
When it comes to the protection of children, there is a greater need for parents and guardians to be involved, but we often find that the care that ought to be there is not there. Has the hon. Lady any thoughts about how we could improve the situation?
Christine Jardine
I believe that parents should take more responsibility, but I think that the answer is to educate the children themselves and make them aware of the danger.
It will be important for the Government to support those who will feel extra strain as a result of the Bill, such as small and medium-sized enterprises and, indeed, the Information Commissioner’s Office itself. The ICO will have a much more proactive role in policing data protection matters and will be required to produce masses of guidance both now and after May. The office must be properly resourced to do its important job. There should also be targeted support for charities.
Many sectors—manufacturing, retail, health, information technology and financial services—are anxious for the free flow of data between ourselves and the European Union to continue with minimum disruption post Brexit. In an increasingly digital economy and society, that is critical for both our international trade and the protection of our rights of privacy. We must get this legislation right, and, as I said earlier, I believe that that will mean upholding the amendments passed in the other place.
Eddie Hughes (Walsall North) (Con)
It is an honour to follow the hon. Member for Edinburgh West (Christine Jardine), not least because my own brief contribution will be simply an extension of the points that she made.
When I first came to this place, I was lucky enough to have dinner with some people from Facebook. We were invited to their headquarters in London and were given an example of how they used data to influence purchasing activity. Facebook knows that elderly people are not frequent users of the site, but that grandparents are keen users just before the birthdays of their grandchildren. Facebook knows everything about us, so of course it knows when our grandchildren’s birthdays are, and it probably knows what sort of toys they are interested in and what sort of films they watch. All information of that kind is held. Facebook can start pitching advertisements for appropriate products to people two weeks before their grandchildren’s birthdays, even before they themselves know what would interest their grandchildren.
I am not suggesting that we should use the Bill to introduce a tough code of practice to protect grandparents, but given that Facebook holds that data and can manipulate it in such a way, we should certainly protect young children from similar practices. I am concerned about whether 13 is an appropriate age of consent. People might be reassured by the fact that Facebook, Instagram and WhatsApp require users to be at least 13, but, as was pointed out earlier, there are no checks to establish that that is the case. We should be particularly concerned because there has been an incredible proliferation in the use of mobile devices by young people. Research conducted in 2014 across many countries in Europe and in Japan found that children typically get their first phone at 10 years old. Other research carried out more recently suggests that between 2014 and 2017 there has been a doubling of online use by five to seven-year-olds. It does not matter what the starting point was.
Paul Girvan (South Antrim) (DUP)
There are large, global organisations that have data on every single individual through their mobile phones; mass data collection tracks movements and identifies where anyone is at any one time. That information is not even held in the United Kingdom; it is held in California in the United States. How can we ensure that we have access to that information if we need it for security reasons?
Eddie Hughes
I am not sure I am going to be able to answer that excellent point, but I was about to touch on something similar.
Apart from the statistical data that I have alluded to, as we walk around every day we see younger and younger children using mobile devices; they must be protected. Greater protection is perhaps required for the most vulnerable. I have been a councillor on Walsall Council for 18 years and a large proportion of my time has been spent working with looked-after children and ensuring the services they are provided with are as useful and appropriate to their needs as possible. On the point that the hon. Gentleman has just made, we are talking not just about the collection of our own data as adults, or the collection of the data of young children, but about the collection of the data of the most vulnerable people in society—looked-after children. The collection and use of their data is terrifying if it gets into the wrong hands. I hope the Minister will take this opportunity to ensure that we protect not just the young, but the most vulnerable young in our society from the perils of data collection and manipulation by huge global entities.
John Grogan (Keighley) (Lab)
It is a great pleasure to follow the hon. Member for Walsall North (Eddie Hughes), who characteristically speaks with great clarity without notes, but I shall take inspiration from the hon. Member for North Herefordshire (Bill Wiggin), the first Back Bencher to speak in this debate, in that I will take a slightly different view from my Front-Bench colleagues on a couple of issues. In particular, I will suggest that there are some flaws in clauses 168 and 169.
When I retired from this House in 2010, I never really expected to be back on these Benches, yet I am now back here representing a different constituency. I missed out on the Leveson report and the subsequent debate about Leveson and the provisions of the Crime and Courts Act 2013. I recognise, however, the tremendous hurt caused by phone hacking and the crimes committed by those involved in it; indeed, two dozen-plus people were convicted of crimes at that stage. I recognise, too, the tremendous sense of violation of privacy that people felt at that time. I am also well aware of the force of the charges our Front Benchers put to the Government; that at that stage they committed themselves to legislation that they are now resiling from.
I am also aware that the history of my party’s relations with the press over the last century has not been untroubled. We have rightly stood up for a feeling that the press has been out to get the Labour party ever since the Zinoviev letter in the 1920s, published by the Daily Mail. However, despite all that background, I still have doubts about clauses 168 and 169, which would have the effect of putting punitive damages on to our press if they were sued, whether they won or lost.
We must be very careful about taking this step. We are already 40th in the accepted rankings relating to a free press. We are not even in the top 10, and we should be up there with Norway, which I think is No. 1. We should be very careful about taking these steps. How would Russia Today react if our press organisations were forced into bankruptcy or felt the chilling effect that Alastair Campbell warned against recently?
Stephen Kerr (Stirling) (Con)
The hon. Gentleman is making a very good point. A key concern that I share with him relates to the dwindling number of local titles. In my constituency, the Stirling Observer is the only newspaper left serving the community. It has a skeleton staff with very few reporters and very few resources even though it is part of a bigger group, and it is vulnerable because of its dwindling circulation. Anything we can do to strengthen our democracy must involve encouraging freedom of the press.
John Grogan
Investigative journalism is one of the things that makes me proud to be British. When I was previously an MP, I was lucky enough to be vice-chairman of the all-party parliamentary National Union of Journalists group. At that time, the group had only two other officers that I can remember: my right hon. Friends the Members for Islington North (Jeremy Corbyn) and for Hayes and Harlington (John McDonnell). Obviously, their careers have taken a different path from my own, but I am still proud to be vice-chair of that group, and I think it is right that I should be.
Obviously, the press get many things wrong, but they also get some things right. There have been many investigations, including the Daily Mail investigation into the Stephen Lawrence affair. The Daily Telegraph has held politicians to account on both sides of the Atlantic; at the moment, it is exposing the possibility that President Trump was financed by foreign contributions. It has also exposed football corruption. Thank goodness for The Guardian exposing tax cheats and tax avoidance, and thank goodness for the Daily Mirror exposing some of the activities of the tech giants and the more unjustifiable practices of the gig economy. That investigative journalism does not come cheap, however, and I believe that it would be threatened by putting section 40 into law. I have studied the Labour party manifesto very carefully; it is my bedside reading. We are committed to Leveson 2, but I do not think that there is anything in the manifesto that commits us to the implementation of section 40.
I have been looking at the amendments that were passed in the other place, and it is interesting that clause 142, which deals with a potential Leveson 2, is actually more expansive than Leveson 2 in some ways, in that it could affect broadcasters and online services as well as all newspapers. That has to be taken into account when we consider that clause.
I am radical when it comes to the reform of our media and our press. I think that we have forgotten some of the issues on the left of British politics that we used to bring to the forefront. For example, the concentration of ownership in our media is far too great. The right of reply is also something that we should concentrate on, as is the wide variety of issues relating to the power of Facebook, Google and others and their inability to deal with fake news in a convincing way. However, alliances are shifting. This week in The Sunday Times I read the most favourable article I have ever read in that newspaper about a speech by a director-general of the BBC. He was talking about the danger posed to British culture, the British way of telling a story and British journalism by the dominance of the tech giants on the west coast of America.
Some things have changed in the media landscape, but I hope that we in this House will always stand up for press freedom and for the plurality of the media. One of the little things that I do in Parliament is also one of the things that I am most proud of, and that is that I chair a number of groups, including groups on Kosovo, Albania and Mongolia. Those are emerging economies and democracies, and we often discuss press freedom in our meetings with people from those countries. How would it look if this House were to impose punitive damages on our newspapers unless they signed up to a state-supported regulator? I think that that would be very difficult to explain.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
I find myself in a great deal of agreement with the hon. Member for Keighley (John Grogan), who has put the case for press freedom extremely clearly. I begin by making an essentially ancestral declaration of interest: my father was involved with newspapers for most of his professional life, and I have received by comparison very modest payments from some newspapers for some works that I have provided for them over my time in Parliament.
At the heart of this Bill are three clauses—primarily clauses 168 and 169—that came in from the other place and fundamentally attack the freedom of the press. There is widespread agreement on the need to regulate the digital economy and the ownership of data effectively. There is cross-party agreement on that, and I doubt that there will be a Division this evening. However, the freedom of the press and freedom of speech are absolutely at the heart of our democracy. Members of Parliament should remember that those freedoms will be exercised in a way that does not always provide hagiographies for us. Quite understandably, newspapers will say critical things of people on the Government Benches and of people on the Opposition Benches. Sometimes they will be fair; sometimes they will be unfair. Sometimes we will read something and think that we have made a mistake; sometimes we will read it and know that the newspaper has made a mistake. That is the flotsam and jetsam of political life. For every piece in the Daily Mail that upsets Opposition Members, there will be something in the Daily Mirror or The Guardian that upsets us. That is how political life works, and we surely are not sufficiently of the snowflake generation that we should mind about that. That is how political life must and should go.
When we look at clauses 168 and 169, however, we know from our history that one of the tactics of dictatorial regimes is to have to punitive damages levied on newspapers that do not do what they want—a system whereby if a paper loses a libel action, it is effectively closed down. Why do such regimes do that? They do it so that they can have the pretence of freedom of speech, but with the reality of control. In the 18th and 19th centuries here, libel laws were used to prevent the press from exercising the freedom that we think of as a constitutional birth right. We know that the Americans, when writing the bill of rights to their constitution, made the second amendment a clear statement of freedom of speech. Why? It was in response to the abuses that they thought were taking place in the United Kingdom at that point. They put it in because they were worried about such things as the persecution of John Wilkes and his being sentenced to prison not for what he did, but for what he said. We see that being restored in clauses 168 and 169, with the outrageous, monstrous idea that if a paper prints something that is entirely accurate—every dot and comma is true—but has not bended the knee to officialdom, the fine will be to pay its own costs and the costs of the party about whom it has told the truth.
The hon. Member for Keighley referred to the Daily Mail and the Lawrence affair. That terrifying right-wing newspaper, which I read every day and enjoy, exposed the murderers of Stephen Lawrence in a way that required it to say things about the murderers that, until double jeopardy laws were changed, could never be proved in a court. What if this law had existed then and those people, whom we now know were guilty of murder, had sued the Daily Mail for saying something that was true? What if the Daily Mail had had to pay the costs of murderers? That is what their noble lordships have put into this Bill.
This is more serious on a day-to-day basis than the worst case that I can think of. We know the weakness of our local papers and how they struggle hand to mouth, but how easy would it be, for example, for my hon. Friend the Member for North Herefordshire (Bill Wiggin), who is no longer in his place, to take to court the journal that he does not like because it said inaccurate things about him. It is fair enough for him not to like them, but if an hon. Member took a local paper to court, that local paper would be insolvent, because many of them do not have powerful parents behind them. Many of them—I am thinking of some in my constituency—are run by entrepreneurial individuals trying to make a reasonable living. The threat of having to pay double costs would be sufficient to stop them printing a disagreeable story about us.
That is great. It means that in all Conservative seats, no disagreeable things will be published about Conservatives; and in all Labour seats, the same will be true. Therefore, I will remain the representative of North East Somerset forever and ever—amen, amen, alleluia—and the hon. Member for Keighley remains in Keighley likewise. As it happens, we both think that is fundamentally wrong and an attack on democracy.
Free speech is not there so that Rupert Murdoch, a man I greatly admire, can make a great deal of money; it is not there so that the noble Lord Rothermere can, likewise, make a decent living; it is there because it is the pillar of democracy. If we do not have free speech, how will we expose corrupt Governments, incompetent politicians and—I dare say there are some occasionally—Governments who make mistakes? Councils that get things wrong, errors that are made and dishonesties that are performed, how will they be reported if every one of us can shut down our local newspaper just by saying that we will go to court and the newspaper will have double costs?
The proponents of clauses 168 and 169 will say, “That’s all very well, but there is IMPRESS.” What is the fundamental principle that has prevented newspapers from signing up to IMPRESS? I was one of 13 MPs who voted against the Crime and Courts Act 2013, which allowed this to happen, and I was absolutely right to do so. The principle is that a free press is one that cannot be regulated by the state, and an application to be approved by a regulator approved by a royal charter is regulation by the state. That is not comparable to the judges or other independent organs of the state, because the judges are part of the state—they are simply independent from this place and from the Executive. The whole point of the press is that it is not in any way part of the state. Quite understandably, no serious newspaper of the left or of the right has been willing to bend the knee to IMPRESS, and nor should it.
Let us now turn to IMPRESS, what causes it, what its origins are and who funds it. It is a scandal of our time that their noble lordships have made an amendment that has been pushed and harried through by perhaps one of the most disreputable figures in British public life. I refer, of course, to Mr Max Mosley, who has provided £3 million for IMPRESS and who took a libel action against the News of the World when it said he had indulged in Nazi-themed orgies. The News of the World was wrong: the orgies were not Nazi-themed. They were orgies, but they were German-themed. I apologise, Madam Deputy Speaker, for saying those shocking things in front of you, but that is what happened.
The News of the World lost, and it was deemed that Mr Mosley’s privacy had been invaded. Before that, few of us had heard of him, except we knew vaguely of his involvement in Formula 1 and we knew his father had been a Member of Parliament—a Labour Member of Parliament, as it happened—and had then set up the British Union of Fascists.
But we did not know that Mr Max Mosley himself held views—or, he claims, had in the past held views—that no reputable person could possibly hold. Views that are so repellent that, though I read them out because it is important to understand what underpins IMPRESS, I do so with considerable reluctance. Mr Mosley was the authoriser of a leaflet, and because we have stood for Parliament, we all know the importance of a leaflet’s authoriser.
I have the most wonderful agent, Margaret Brewer from Somerset. She was referred to by The Sunday Times as a “flinty rural matron”, and indeed she is. Nothing goes in my leaflets without her approval. People may think I am independent-minded, but I have not a view that has not been approved by Mrs Brewer. We all know how this works. If our agent does not approve it, it does not go in. What did this leaflet say? As I say, this is so appalling that I am reluctant to read it out in Parliament. Under a heading of “Protect your health”, it said:
“There is no medical check on immigration. Tuberculosis, VD and other terrible diseases like leprosy are on the increase. Coloured immigration threatens your children’s health.”
That is the view of the funder of IMPRESS. It is little wonder that our free press does not want to be associated with such a man. It is little wonder that, to its credit, the Labour party has now refused to take any further funding from this man, but IMPRESS has not. IMPRESS has not condemned this man. It has not said it will refuse further funding from the charitable trust he set up purely and specifically to keep IMPRESS running. IMPRESS has done nothing of this kind. It has a reputation of its own, and there is a certain irony in this; its chief executive is a man called Jonathan Heawood, and he tweeted, of all things, that the Daily Mail was “a neo-fascist rag”. Dare I say that he might know a good deal more about neo-fascists than one had thought when that tweet was originally circulated?
We are suggesting, under clauses 168 and 169, that that most precious thing that underpins, protects and gives us our democracy should be sacrificed to the honour of a man who has waged a campaign against freedom of the press because it exposed his perversions. That is the long and short of it. The hon. Member for West Bromwich East (Tom Watson), the deputy leader of the Labour party and shadow Secretary of State, said that Mr Mosley does not hold those views any more—well, how gracious of him. But how fortunate we are that our free press has exposed those views, so that we know them in the context of the debate we are having today. I say to Opposition Members that any of them who go through the Lobby at a later stage to vote in favour of those clauses are voting to support Max Mosley, his abhorrent views and his money. Those of us who believe in freedom will vote them down.
Sir Edward Davey (Kingston and Surbiton) (LD)
It is interesting to follow the hon. Member for North East Somerset (Mr Rees-Mogg). The House should reflect on his speech. Obviously, he was full of great rhetoric, but for some of us, he was playing the man and not the ball, but the House should discuss the ball—the substance—because that is key. I say to him, in language I know he understands, that veritas is a good defence.
I want to speak about the actual Bill, not amendments made in the other House. This piece of legislation is very welcome. It emanates from the EU, and I am delighted that the Government are implementing it. This regulation was being formed when I was a junior Minister in the then Department for Business, Innovation and Skills, and Britain was very supportive of it and was leading on it. Indeed, I served on the Competitiveness Council and formed a like-minded group for growth, on which Britain was leading the way in Europe in developing further the single market in energy and in digital services. It was clear that this regulation was essential for British business, because Britain was leading in digital services and needed this to support our businesses trading across the EU and to give consumers the confidence that this brings. It was a key area for business for Britain, and we pushed it.
It is therefore particularly ironic that we are transposing this regulation into UK law just as we are pulling out of the EU. The legislation before us is excellent; it has cross-party support; and it is a perfect example of why Brexit is a bad idea for the UK. We were highly influential in the conception and birth of this regulation as a member of the EU, but thanks to Brexit, we will not be at the conception and birth of a daughter of this EU regulation. There is bound to be a daughter of the GDPR, given the speed with which these technologies are developing. Inside the EU, the UK fashioned this regulation; we were a rule maker, and we were in control. With Brexit, we will not have a vote, we will be a rule taker, and we will have lost control. There could not be a clearer example of how Brexit will actually weaken Britain’s democracy and sovereignty—the precise reverse of what was promised to the people. Although I welcome this legislation in general, I do fear for the future.
However, I have one massive concern about the Bill. It relates not to what came from the EU, but to what Whitehall has done to the legislation. It used to be called “gold-plating”, but in this case I would call it “dirt-smearing” the regulation. I refer, of course, to the immigration exemption in schedule 2. I am disturbed about that for a number of reasons, some of which other Members have mentioned. However, to get the Minister’s attention, I should say that if the legislation is passed with that exemption, that will put at risk the chances of the UK’s obtaining a data adequacy agreement prior to Brexit—something essential for business and vital for security. The immigration exemption is not allowed under the EU’s regulation; it will be found to be illegal. It is clearly in breach of the EU’s charter of fundamental rights, undermining article 8 on the protection of personal data, article 20 on equality before the law and article 21 on non-discrimination.
Take the central example of what the exemption will mean for citizens from other EU countries—the 3 million here already and those who will come in the years ahead. Does the Minister really expect the Commission and the EU’s Brexit negotiators to turn a blind eye to the theft of data protection rights from EU citizens that the immigration exemption represents? It is a clear and evident breach of faith with the December agreement on EU citizens. There is simply no way that the EU could or should grant the UK a data adequacy agreement if we intend to take data protection rights from its citizens with this measure. That is before Brexit; if we do not secure a data adequacy agreement while we are in the EU, it will be far more difficult and demanding as a third country. The granting of data adequacy for third countries involves a more stringent examination of how national security data is dealt with.
I say candidly to those on the Treasury Bench that if they want their Brexit negotiations to proceed as smoothly as internal Tory party politics allows and to secure the data adequacy agreement that British business desperately needs, they will have to drop that immigration exemption—not water it down, not caveat it, but drop it.
Moreover, the exemption is insulting to freedom, the rule of law and access to justice. What it means, as others have said, is that an individual cannot know why he or she has had their case refused by the Home Office. The Home Office will be under no duty at all to disclose the information in a person’s file and the information used to make the decision. That is an affront to natural justice. In any dispute about how a case has been administered, it is surely self-evident that officials should have to provide that information.
To help Government Back Benchers who care about the rule of law even more, I should say that this affront could affect a British citizen. The administrative mistake might well be that someone has incorrectly been considered not to be British. In the many briefings that we have been given for this debate, there is example after example of British citizens being denied justice, with their very nationality being denied. Only a subject access request by an individual’s lawyer can end up revealing such basic errors of the Home Office.
Let us face it: the Home Office holds the prize for the largest number of mistakes made, week in, week out, by any Department. To take just one example, the Home Office has a shocking 10% error rate on immigration status checks alone. The Conservative party may be happy to take away access to justice and the rule of law from British citizens, but I am not.
Let us look at the impact on fairness. The best way to illustrate how deeply unfair the immigration exemption would be is with a few examples—real life examples, which is to say real people. Let me take some examples from the Law Society brief. It takes the case of Z, a failed asylum seeker attempting to reopen his case:
“The Home Office refused to reopen the case, saying that he had previously left the UK voluntarily and had received a resettlement grant from the Home Office. The SAR revealed that a third person had assumed his identity, and had applied for and secured voluntary return and the grant had subsequently been removed. The file further revealed that there was no cross-checking of signatures, photographs, or fingerprints on the Voluntary Assisted Returns scheme.”
This would have had serious consequences for the individual had the subject access request not revealed the identity theft, but, of course, under this immigration exemption there will be no such right to make that request.
We have talked about issues around domestic violence. We have heard the example of a woman applicant, the victim of domestic violence, who had no knowledge of the immigration applications made for her because her husband had all the papers. A subject access request would be her only path to sorting out her immigration status.
There are many examples showing how unfairly this will work in practice. Another example of Home Office mistakes on identity is the case of a nurse who had been working in the NHS and living lawfully in the UK for many years, but whose application to naturalise as a British citizen was denied because of her alleged poor immigration history. The brief says:
“A SAR was made and it became clear that the Home Office had mixed her up with another Nigerian woman with a slightly similar name and a poor immigration history. Following the SAR, she was able to challenge the Home Office.”
Under this Bill, she would not have been able to do that, and the NHS would have lost a diligent trained nurse.
There are so many other such examples, Madam Deputy Speaker, that I could detain the House longer than you would feel was sensible, so I will not read them out. None the less, I say to Ministers that they exist. If they bothered to read them—I urge them to do so—they would see that these are real people. If this legislation goes through with the immigration exemption, the Ministers on the Front Bench would be responsible for ruining the lives of hundreds, if not thousands, of innocent people, because they would have given the Home Office—the Executive—too much power, which means that it could not be held to account.
Andy Slaughter (Hammersmith) (Lab)
I am very pleased to follow the right hon. Member for Kingston and Surbiton (Sir Edward Davey), not least because it allows me to dispense with the first part of my speech, which will please the whole House. He has made exactly the right points in relation to what is known as the immigration exemption. It makes unnecessarily contentious a technically complex and, as Members on both sides of the House have said, necessary Bill. It makes EU citizens second-class citizens and allows the Home Office to collect and store data in a way that undermines other protections in the Bill, which means that it is something that we should not support. I hope that the Government will reconsider it.
I will spend what time I have dealing with the other matter of contention, which a number of Members on both sides of the House have raised: the amendments made in the other place. There are two. One is a requirement on the Government to proceed with a Leveson 2 public inquiry, and the other would effectively bring in, for the purposes of data protection offences, section 40 of the Crime and Courts Act 2013, which introduces costs. It would ensure that individuals affected by data protection offences—one could read across into defamation and other matters—committed by national newspapers had affordable access to justice in any action against those newspapers. That is the essence of it.
The second part of the Leveson inquiry was promised to the victims of press abuse by all party leaders in the clearest possible way, and it is difficult to see what has significantly changed since that time. Despite that, and perhaps even more surprisingly, despite the wishes and views of Sir Brian Leveson himself, the Government announced in an arbitrary and rather casual manner in the statement last week their intention to cancel part 2. If we do not have Leveson part 2, we will not know the extent of corruption across newspaper groups, the extent of corrupt relationships with the Metropolitan Police Service, and the extent of illegality and cover-up at newspaper titles.
We need to proceed with Leveson part 2 because we owe that duty to the Hillsborough families, to the families of Milly Dowler and of Madeleine McCann, to Christopher Jefferies and to others who deserve to know the truth about what happened to them. That would have been an uncontroversial thing to say even two or three years ago, but it appears to have been forgotten. The innumerable meetings that now take place between senior members of the Government and senior people in the press—and the paucity of such meetings with the victims—speak for themselves. We have not got to the bottom of the hacking and data scandals at the News of the World, the Mirror Group titles and other newspapers. This issue does not affect only the newspapers of the right or of the left; it affects newspapers across the spectrum.
The fact that Sir Brian is firmly in favour of finishing the inquiry with extended terms of reference—we know this now, although I do not think that anyone who heard the statement last Thursday believed it to be the case at the time—really sets a precedent. I wonder when it has previously happened that the views of an inquiry chairman have been disregarded and overturned in this manner, part-way through an inquiry. If this were a scandal in any other industry, the press would be firmly behind finishing the inquiry. Public confidence in the press, and in us, will suffer if inquiries into press misconduct are abandoned, effectively at the instigation of those who run the media in this country. As I said in an intervention, if we can do this with one inquiry, we can do it with another.
The Government have quite rightly set up inquiries into the Grenfell Tower disaster and the contaminated blood scandal—two extraordinary scandals affecting millions of people across this country and our major institutions. What is to prevent the Government from stepping in at any time and saying, “We’re not happy with the direction. We believe that this inquiry is now irrelevant. We won’t continue it anymore.”? This weakens faith in our constitution.
I turn to the amendments made in the other place regarding section 40 of the Crime and Courts Act 2013. I have heard comments that are just plain wrong, particularly from Government Members. It may just be coincidence that many of them began their remarks by saying that they were former journalists, but they then misrepresented what is intended by—and, indeed, the actuality of—section 40 and the amendments made in the other place. In any event, their comments were miscast.
Cost shifting is often a part of the cost regime in our courts. It is done to increase either access to or the administration of justice. It is done not punitively, but to encourage, and to ensure that justice functions effectively in everyone’s interests. In this case, it works by giving newspapers the option of signing up to an independent regulator that offers compulsory arbitration, or meeting the court costs of reasonable claims made against them. This ensures that members of the public affected by press illegality can either bring a claim under low-cost arbitration or have costs protection in court. Arbitration is cheaper and quicker for both sides.
Newspapers also benefit from cost shifting, because they enjoy costs protection if they are in an independent regulator offering arbitration and a claimant rejects the arbitration service on offer. That is the key point. This is not there to punish newspapers but to protect impecunious claimants. It will also protect small, genuinely independent newspapers and small publishers. One hears that the whole local newspaper industry is against it, but 80% of that industry is owned by the big conglomerates, which have exactly the same interests—financial—as the major national newspaper chains.
The purpose of cost shifting is to enable an individual who—in the way suffered by the Dowler family, Christopher Jefferies and those in the other cases that we are all aware of—has been horrifically maligned and harassed by newspapers to go to court, to get justice, and, in this case, to go to arbitration without the risk of losing their house and savings, or of simply being unable to get into court at all.
That risk was partly resolved—not deliberately; it came about through the way in which the law developed —by no win, no fee agreements, which meant that somebody who had been defamed or had their privacy threatened in this way could go to a lawyer and ask them to take their case. The lawyer would say, “Let’s see if it’s a good case or not,” and if it was a good case, they would agree to take it on a no win, no fee basis. That protected the litigant both from their own costs and from the costs of the other side if they lost. It was no longer the case that if someone took the Daily Mail or The Sun to court, they risked everything because the newspaper group had been able to build up costs on the other side to discourage, in effect, even the most meritorious litigation.
With the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, that option went, and it is far, far more difficult to get any type of no win, no fee assistance, so we are not at that status quo; we have moved several steps backwards, and if section 40 and the amendments tabled in the other place are not passed, litigants will once again be at risk in this way. Low-cost arbitration and the need to incentivise media groups to join that service—not, as the IPSO scheme would, allowing them to pick and choose—is essential to that. It is a low-cost way of doing it, but it works just as much for the press as for the individual litigant.
Apart from the fact that a promise was made to the victims of press abuse, and the fact that this provides cost protection to newspapers and ensures that small and local newspaper groups are protected from powerful and wealthy litigants, cost shifting encourages the use of arbitration, which is quicker and cheaper for all sides and is increasingly a feature of all parts of our legal system. This poses no threat to the local press.
The alternative is IPSO. I was incredulous to hear IPSO described as a move on from the Press Complaints Commission. It is the same people running the same racket, with the same failure to address the issue. The hon. Member for North Herefordshire (Bill Wiggin)—I do not often find myself on the same side of the argument as him—got it exactly right. This is a sham, and if we support it, we are going along with the sham.
This is not about punishing and silencing the press, as though they are the weak vessel—it is about protecting the people to whom all parties and almost every Member who was in this House at the time made a promise: the victims of egregious press harassment who suffered terrible campaigns against them. We forget that at our peril. The Government have simply waited until they think that time has moved on and the heat has gone out of this. Well, I hope that the heat has not gone out of it. I hope that the public and sufficient numbers of Members on both sides of the House will remember the duty that we owe to those victims. These are modest amendments from the other place. The idea that this is in any way tying the hands of the press is pure hyperbole. We need to incorporate the amendments, and we need to fulfil Leveson 2, because otherwise we are failing terribly the victims of press harassment.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
This has been quite a useful debate for rehearsing the arguments and divisions that I suspect we will have when the Bill moves upstairs to Committee. Some of our debate, particularly in the speeches made by Opposition Members, has even been about data protection.
It is probably fair that I start with the note of unity that the shadow Secretary of State, my hon. Friend the Member for West Bromwich East (Tom Watson), set out at the beginning of his remarks. I think there is a great deal of optimism on both sides of the House about the possibilities of technology in the years to come. The philosophical difference is that we genuinely believe that the new world of trade for the years to come will be built on a world of trust. If we are to have a really robust foundation of trust in the digital economy that will take shape over the course of this century, we will need a strong regime of rights. We need rights that are comprehensive and genuinely enforceable in courts, where necessary, and those rights need to live in a democracy that has safeguards, including safeguards around the way in which elections are fought in the digital age—those elections need to be free and fair—with a press that is clean.
The problem with the Bill, as we see it, is that it is an opportunity missed. The Secretary of State argued that it was forensic; we would argue that it is a little bit more piecemeal. It is not haphazard; it is seeking to do a job by incorporating a substantive bit of legislation from Brussels into British law. However, we are troubled that the privacy provisions are not quite robust enough, and that argument was well made by a number of my right hon. and hon. Friends. In particular, the decision not to include the text of article 8 of the EU charter of fundamental rights to safeguard privacy and ensure that adequacy agreements will be there in years to come was an error. The approach is just too risky, as my right hon. Friend the Member for East Ham (Stephen Timms) warned.
These risks of divergence are serious because so much of our exports, in particular to Europe, are services exports. Some 70% to 80% of those services exports may be digitally enabled, so we simply cannot afford any risk whatsoever. We need to put all risk to any future adequacy agreement beyond doubt.
My hon. Friend the Member for Bristol North West (Darren Jones), our man for definitions and a great deal more, made a very effective point about this not being a one-off exercise. This process will endure, so we are trying to make sure that British and European courts interpret privacy law in a way that is continually consistent over the years to come.
We all need to recognise the juggling act that the Prime Minister is trying to perform. We all need to acknowledge with some honesty the creative ambiguity that she sometimes needs to sustain to keep everybody on the train. I think we all recognise the precariousness of her position. We know that her personal position as captain of the ship is not trouble-free, so I think that those on the Treasury Bench will forgive us for not relying on the full weight of a No. 10 press release, as terribly robust as that is, as ensuring that adequacy provisions will be secured through the commitments that she has made to protect privacy. We would much rather rely on the full weight of the law, because that feels like a much more reassuring position.
In the modern economy, there are rights that we need to take into account. Those rights are new and increasingly necessary in the modern age, such as the right not to suffer as a result of decisions made not by humans but by algorithms. My hon. Friend the Member for Cambridge (Daniel Zeichner) made the powerful point that the great risk of algorithms that take decisions is that they may hard-code old injustice into new injustice. That idea should trouble us all. The Bill does not include adequate safeguards against that at the moment, so we will need to address that.
We heard the troubling line of argument in the debate that we should carve out newcomers to this country from the rights and safeguards that are enjoyed by everybody else under the Bill. I have to say to the Minister that the measures on immigration are a mistake. We will seek to delete them, and I hope she accepts that initiative. I was the Immigration Minister who introduced the biggest shake-up to our immigration system for 40 years. I created the UK Border Agency, and I introduced the points system. In my two or two and a half years in the Home Office, I came to learn that our immigration system is not some celestial design—it is a human institution. The Home Office and the immigration system take decisions that are bad or wrong and that need to be corrected. If we delete the protections under the Bill for newcomers, we will put justice in jeopardy. We will genuinely risk denying justice to those newcomers who need information to fight their cases effectively.
I lost cases that were brought because people were able to draw on information through subject access requests, and justice was eventually done in those cases. However, mistakes are made, and I do not think the Minister wants a system that is so prone to error. We have to build in checks and balances to the immigration justice system, and she has perfectly adequate safeguards on crime prevention in the Bill. As a former Home Office Minister, I can recognise what is basically a gratuitous land grab by the Home Office. These powers are not needed, and I hope the Minister will ask her Home Office colleagues to look at the provisions again.
For rights to be real, there needs to be a method of enforcing them effectively, which is why the provisions for collective redress are so important. The shadow Secretary of State talked about the work that we have done with people such as Baroness Kidron in the other place on safeguarding rights for children. A third of internet users are children, and we need to ensure that their rights, along with those of everybody else, are actually enforceable. The idea that a child whose rights are violated will take Facebook to court is, frankly, fanciful. We need to allow consumer organisations and others to take what are in effect class actions, because otherwise the implementation of rights risks being weak, undermining not simply justice, but the strength of our regulatory regime.
We will want to propose other, more comprehensive rights. We are not under any illusions about the Government accepting our data Bill of rights in full, but we want to make sure that such rights are on the table because we are at the start of a process. Just as there were something like 17 Factory Acts during the 19th century, there will be many data protection and e-commerce modernisation Acts over the next 80 years. I am afraid that Members will, for better or worse, have to get used to that process. We think that putting in place a strong framework for rights and enforcement now is just a wise precaution for the future.
As we have heard in many contributions, there will be quite a lot of toing and froing about some of the amendments made in the other place. I hope that many in the House will not take the approach of the hon. Member for North Devon (Peter Heaton-Jones). I feared at times that he was anticipating that we could somehow secure justice regarding suspected historical offences by closing the door, switching off the lights and pretending that nothing had ever happened. I do not think that there are many fields of public policy in which that has proved to be a successful foundation for reform. It is important that we delve into offences that took place in the past.
My hon. Friend the Member for Hammersmith (Andy Slaughter) made some important points. Politicians on both sides of the House made promises to the victims of phone hacking, and it is an extremely dangerous precedent for a Secretary of State to say, “Yes, I know we made promises about an inquiry but, you know what, we don’t think that inquiry, even though it isn’t finished, really should wind its course to a conclusion.” It is not a satisfactory state of affairs when the Executive can intervene and, in effect, seek to stop inquiries in their tracks, in the teeth of opposition—in this case, from the noble Lord Leveson—setting out why they should actually continue.
I hope that many Members will, like the hon. Member for North Herefordshire (Bill Wiggin), argue for the importance of honouring promises made in the past, and indeed of making sure that we have a press regulation regime that balances the interests of a free and fair press with the need not to defame people wilfully. The Government are making an odd argument by asking us to take them seriously when they want to install a new data protection regime, while at the same time short-circuiting an inquiry into the most egregious violations of data privacy that we have ever seen in the public sphere. I am afraid that that approach does not inspire a terrific amount of confidence, so I hope that the Minister and the Secretary of State will listen again to the pleas of Lord Leveson and reconsider their support for the amendments that were carried with such force in the other place. The Government may make their own proposals, but I suspect that there will continue to be a strong body of support in the other place for those amendments.
Stephen Timms
May I take it from what my right hon. Friend says that the official Opposition’s position is that we will support the retention of the amendments agreed in the other place?
Liam Byrne
My right hon. Friend is absolutely right. We will support the retention of those amendments, and we will seek to offer a much more wide-ranging, comprehensive approach, which we think the Government should take. We will offer a much more comprehensive, well-rounded and thought-through system of rights for the digital age. We will offer an effective means of safeguarding those rights through the introduction of new forms of collective redress. We will offer new safeguards that help to protect our democracy and that ensure free and fair elections and press justice.
We will also seek to prompt the Government to confirm precisely when they will modernise the e-commerce directive, because many of the threats to freedom in the digital age will come from the fearsome five data giants of this age, which will need regulating in new ways. I think there is some cross-party consensus about the need for the e-commerce directive to be modernised, so we will table amendments that will encourage the Government to get their skates on. Crucially, however, we will table amendments that put beyond doubt the future of any adequacy agreement with the European Union.
As the economy changes, so must the law. There will be many more data and privacy laws to come in the years ahead. We will encourage the Government to put in statute a framework that is not merely fit for today, but fit for the future.
The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)
I thank all Members for their contributions to this excellent and wide-ranging debate and their lordships for the immense amount of work that they have done on the Bill thus far. Members on both sides of the House want a Bill that protects personal data and allows individuals to maintain control over what is their property and what is important to them, and we want these rights to be enforceable. That is a positive start on which we can all agree.
Various Members, including the hon. Member for Bristol North West (Darren Jones), the right hon. Member for East Ham (Stephen Timms) and the shadow Minister, stressed the importance of the continuity of adequacy post Brexit. The hon. Member for Bristol North West asked what the Prime Minister meant by saying that she wanted to achieve more than adequacy. It was, I am sure, to ensure that the Information Commissioner can continue her excellent contribution to the evolution of the GDPR through her association with the European data protection board, when that comes into being.
The hon. Member for Argyll and Bute (Brendan O’Hara), the hon. and learned Member for Edinburgh South West (Joanna Cherry), the right hon. Member for Kingston and Surbiton (Sir Edward Davey) and many others mentioned immigration. I want to reassure the House that we are seeking not a blanket exemption, but something that can be applied only when complying with a certain right would be likely to prejudice the maintenance of effective immigration control. Every request to exercise a right under the GDPR would still have to be considered on its individual merits, and the rights of appeal required by the GDPR remain in place.
There was a great deal of debate about the freedom of the press. In the short time that I have, I cannot do justice to the fantastic contributions from my hon. Friends the Members for North Devon (Peter Heaton-Jones) and for South Dorset (Richard Drax) and the hon. Members for Edinburgh West (Christine Jardine) and for Keighley (John Grogan). We heard the real show stopper from my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who was listened to with rapt attention as he contrasted the pretence of freedom of speech with the reality of control, which would be the result of the amendments to which we have been asked to agree. The Government have been clear that we will attempt to defeat them in this place.
We have had a very valuable debate. We have touched on various issues—children and social media, artificial intelligence and cyber-resilience—and there are others that we will address subsequently.
Margot James
I will have plenty of time in Committee to debate with the right hon. Gentleman. I am sure that we all agree that the Bill is important and timely.
Kevin Brennan (Cardiff West) (Lab)
On a point of order, Mr Speaker. I note that the Minister has not yet concluded her remarks, but it seems that she might do so before the moment of interruption. There are two outstanding motions on the Order Paper to be voted on following the decision on Second Reading: the programme motion and the money resolution. I note that, under Standing Order No. 83A(7) and Standing Order No. 52(1)(a), they are not subject to debate, but if there were any time left over between the conclusion of the Minister’s remarks and the moment of interruption, would it be possible to discuss those two motions?
Mr Speaker
No, but the hon. Gentleman raises an interesting point. The fact that he has done so has given me an opportunity to clarify the matter for the benefit of the House.
Andy Slaughter
Further to that point of order, Mr Speaker. If the Minister has concluded, or was at the point of concluding, her remarks, may I seek your guidance? We have had an excellent and very full debate on this matter. I was here for the opening speeches and decided to stay and speak in the debate. I noted that the Secretary of State said that this is a Bill with 208 clauses. We have had a full debate, but the Minister, in a matter of two or three minutes, has not in any conceivable way replied to it, despite having time available to do so. What can be done to ensure not only that this House has a full debate, but that matters are responded to by the Government, as they are duty bound to do?
Mr Speaker
It is very much for a Minister to decide for how long he, or in this case she, responds to a debate. I understand that the hon. Gentleman is somewhat agitated. I am saddened to see him in a state of perturbation about the matter, but there is no immediate relief, other than the fact that he has registered his concern and it is on the record. There is, however, nothing to be added by me in response to his point of order.
Daniel Zeichner
Further to that point of order, Mr Speaker. As my hon. Friend says, this has been a very long debate in which serious issues have been raised by Opposition Members. This debate was about not just Leveson, but data protection, which is particularly important for the future, and Opposition Members asked some major questions. I asked about the future of research. Researchers are very concerned, but they have not had an answer from the Minister. Is there is anything you that can suggest, Mr Speaker, that would enable them to get an answer this evening from the Minister?
Mr Speaker
It is for the Minister to decide how long she replies. I am sorry if the hon. Gentleman feels that his points have not been responded to by the Minister, but she is legendarily succinct, and has obviously decided—independently, or in consultation with her colleagues on a collective basis—that tonight shall be no exception to the general principle of Jamesian succinctness.
Margot James
I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Data Protection Bill [Lords] (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Data Protection Bill [Lords]:
Committal
1. The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 27 March 2018.
3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
4. Proceedings on Consideration and proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
Other proceedings
7. Any other proceedings on the Bill may be programmed.—(Rebecca Harris.)
Question agreed to.
Mr Speaker
Well, it is most unusual that we are proceeding in quite such an efficient way before we have reached the moment of interruption. It is constitutionally notable, and colleagues will wish to take account of it, either for the purposes of repetition in the future or avoidance, depending upon their taste.
Data Protection Bill [Lords] (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Data Protection Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of:
(1) the payment out of money provided by Parliament of—
(a) any expenditure incurred under or by virtue of the Act by a Minister of the Crown or a government department; and
(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided; and
(2) the payment of sums into the Consolidated Fund.—(Rebecca Harris.)
Question agreed to.