Data Protection Bill [HL]

Debate between Baroness Garden of Frognal and Lord Keen of Elie

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, exactly a month ago, we had an interesting debate concerning a range of amendments tabled by my noble friend Lord Black. It was a surprisingly consensual debate, and I am rather hoping for more of the same this evening. The noble Lord, Lord Stevenson, agreed that there were serious issues raised that needed to be addressed. The noble Lord, Lord McNally, agreed that the Bill needed amending to ensure that it did not undermine the work of investigative journalists. The Government have listened, as we have on so many issues raised by noble Lords, and we have tabled appropriate amendments.

Government Amendment 50 deals with the issue raised by my noble friend that the Bill applies the exemptions only where processing is for the special purposes. We heard the persuasive example of the media being penalised if, for example, the police sought the pre-broadcast disclosure of journalistic material in relation to an undercover investigation because they wanted to see whether the alleged wrongdoing uncovered by the broadcaster’s investigation merited further police investigation. We agree that it is unfair and our amendment puts this right.

Government Amendment 57 concerns the list of journalistic codes of practice that appears in paragraph 24 of Schedule 2, which is also the focus of a number of amendments tabled by noble Lords, from whom I am sure we will hear in due course. In Committee, the noble Lords, Lord Clement-Jones, Lord Stevenson and Lord Skidelsky, and the noble Baroness, Lady Hollins, all highlighted that the editors’ code is incorrectly described in the Bill as the IPSO editors’ code. Having looked at this further, we concede the point and the Government’s amendment removes the reference to IPSO. The legal effect of this is nil but we should use the correct label. We are grateful to noble Lords for bringing this fault to our attention.

Government Amendment 61 is a further concession to deal with further concerns raised by noble Lords. Article 36 of the GDPR would have required investigative journalists to consult with the ICO before instigating covert filming, such as when investigating allegations of abuse against vulnerable residents at a care home. Article 44 of the GDPR might disproportionately impact on collaborative investigative journalism, including the sharing of data across borders where appropriate, such as with, for example, the Panama papers. The government amendment allows journalists to be exempted from these restrictions where the public interest test is otherwise met.

Government Amendments 150, 156 and 161, as well as a number of consequential amendments, create journalistic defences to the offences in Clauses 161 and 162 in respect of unlawfully obtaining personal data or unlawfully reidentifying de-identified data. We accept the arguments of my noble friend Lord Black that what processing is permitted for the special purposes under Schedule 2 should not be criminalised later in the Bill. These amendments remove any doubt on this matter. We wish to ensure that we do not criminalise journalistic or whistleblowing activities that are believed to be in the public interest.

Government Amendment 162 removes paragraph (c) from Clause 164(3). This measure allowed the Information Commissioner to determine prepublication whether processing could be done without reliance on the special purpose provisions. Many noble Lords felt this was a power to allow the commissioner to overreach and interfere in journalistic decisions. I am grateful for the advice of the noble Viscount, Lord Colville of Culross, together with that of my noble friend Lady Stowell of Beeston, who took the time to come and see me about this provision and further explain its dangers. The noble Lord, Lord McNally, set out similarly powerful arguments in Committee. Following further discussions with stakeholders and the commissioner, the Government have concluded that giving the commissioner power to take such enforcement action in relation to data being processed for the special purposes before the journalist or author publishes their work goes beyond what we consider is the appropriate role of the commissioner as the regulator and enforcer of the data protection legislation. With Amendment 162, the circumstances in which enforcement action would be available to the commissioner in relation to the special purposes would be limited to that of the existing position under the 1998 Act.

I will respond in full on the other amendments in this group once noble Lords have explained their intent. I beg to move.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I have to inform the House that if Amendments 50 or 50A are agreed to, I cannot call Amendments 51 or 52 by reason of pre-emption.