Data Protection Bill [HL]

Debate between Baroness Hollins and Lord McNally

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I start by adding my strong support to the elegant amendments of the noble Earl, Lord Attlee, and thank him for his perceptive evaluation of the media storm about Section 40 of the Crime and Courts Act.

My Amendments 170K, 170L, 170M, 171A, 172AA, 172E and 174AA would remove the existing pre-publication staying mechanism currently available to data controllers when they may be processing data for special purposes. The old Data Protection Act required that a determination had to be made by the Information Commissioner before any data protection claim could be brought in court where data might be processed for journalism. This determination, set out in a “determination notice”, would specify whether the data was indeed being processed for the special purpose of journalism.

Any claim which might involve the special purposes could be stayed in this way. This means that someone has no way of accessing the courts to establish if such publication of their personal data was legal—for example, because it was in the public interest—until after it happened. In contrast, people can do this with a privacy claim—and the sky has not fallen in, nor has investigative journalism been affected. Data privacy claims should be no different.

The new Bill currently replicates the process that was set out in the old Bill. Unlike other areas of law, and unlike processing for other purposes, before any member of the public can bring a data protection claim in the courts against a data controller prior to publication, Clauses 164 to 166 of the Bill require the ICO to make a determination as to whether the data was being processed for journalistic purposes. This means that when an individual’s data rights are unlawfully breached for publication, without any public interest justification, they can do nothing to prevent use and publication of that data until the determination process is complete, with appeal. That data could include, for example, private medical records or financial transactions that expose deeply personal information.

In practice, this means that ordinary people are denied the right to challenge in court the legality of the data being processed prior to publication. Moreover, determination is slow. When the Information Commissioner produces the determination notice, it is then subject to appeal by the publisher. Lord Justice Leveson argued that this whole mechanism is wrong in principle, and that it should be removed. This amendment would have that effect, by removing journalism from those purposes to which the stay could apply. Publishers and the public would still have access to court action, and the courts could determine whether the material has been unlawfully processed and, if it has, whether publication is protected in the public interest under the existing exemptions in the Bill.

Journalistic exemptions in the Bill would be entirely unaffected by the amendments. Where breaches are in the public interest and undertaken for publication, journalists remain exempt from all the exemptions listed elsewhere in the Bill. That is right, and it will be protected. However, the additional stay, which prevents victims of data protection breaches by newspapers trying to prevent the damage that would be done by publication before they can argue their case in court, would be removed. In summary, nothing in the amendments will interfere with investigative journalism—that is not my intention. Because this is a complicated area, with many amendments to these clauses, I certainly stand ready to discuss with colleagues the best way forward in this area before Report.

My Amendment 179A would require the Government to proceed with a public inquiry into allegations of data protection breaches by or on behalf of newspapers. Such an inquiry would be similar to the already-agreed second half of the Leveson inquiry. In 2005 it was reported, though only in the Guardian, that thousands of individuals had had their personal data, including private phone data, stolen by or on behalf of newspaper publishers. Noble Lords will recall that Operation Motorman was the scandal that allowed phone hacking to occur, but it was far more widespread than just phone hacking. It affected tabloids and other newspapers alike. Data was illegally harvested by private investigators in the pay of newspapers and used for stories or to hack phones, often without any public interest justification. A whole industry of illegal data theft propped up the front pages and exclusives of some of our most powerful and recognisable newspapers for a decade.

The Information Commissioner published two reports on Operation Motorman, first, about this practice and, secondly, on the findings of the police investigation. These included the revelations that 58 clients or journalists working for the Daily Mail had used private investigators, and that 1,482 transactions were identified between the investigators and Mirror Group titles such as the Daily Mirror and the Sunday People. Rarely was there any public interest justification. For example, the victims of crime were targeted and their partners, their colleagues and even their painters and decorators were targeted, too. Some newspapers even rehired private investigators who had been convicted of illegal data handling.

This is not ancient history. The judge in the Mirror hacking civil trial ruled that the Daily Mirror, the Sunday Mirror and the News of the World used an entirely different set of private investigators hundreds, if not thousands, of times to steal phone billing data and “reverse phone numbers”, and that this was a precursor to hacking their phones. In a new civil action against the Sun, it is alleged that that newspaper continued to use a series of private investigators for illegal activities on an industrial scale all the way up to 2011, if not beyond.

A public inquiry, the Leveson inquiry, was established to investigate these matters, and I gave evidence to part 1. However, part 2, established to investigate the extent of breaches of data privacy and other illegality, and to investigate the cover-up of it, has still not taken place. This requirements of the amendment would be satisfied by the Government proceeding with Leveson part 2.

I believe I am not alone in your Lordships’ House in finding the Government’s positioning and repositioning on Leveson part 2 shameful. In 2011, when the scandal of hacking broke, the inquiry was established in two parts, the first to deal with regulation and the second to deal with illegality and allegations of corruption and cover-up. The Government claimed they were committed to part 2 of the inquiry once relevant trials had concluded. Those of us affected by this conduct took the Government at their word.

A few years ago, though, the Government began to revise their position following heavy lobbying from the press. After this House voted overwhelmingly in support of one of my amendments to the Investigatory Powers Bill last year, the Government faced the prospect of a Commons defeat and announced a consultation on Leveson part 2 on the day of that vote. That consultation was judicially reviewed by a victim of press abuse who had been promised by the Government that part 2 would happen. The Government defended that judicial review by claiming that they had an open mind on the matter of Leveson part 2, but within three months their party manifesto for the 2017 general election pledged to scrap Leveson part 2 altogether.

Today, we are no further forward. The Government have still not published the outcome of last year’s consultation. The integrity of the consultation was questioned, and the Government’s intentions were rather exposed by the manifesto commitment to scrap Leveson part 2, although I gather that Conservative Members of neither this House nor the other place were consulted. Nor were victims consulted, despite previous prime ministerial promises to them on this matter.

I see no alternative but to return to legislation and the role of Parliament to see that the Government stand firm on these matters and do not cave in to the press lobby. I hope colleagues will support this amendment. I would not of course return with it on Report should the Government proceed with Leveson part 2 with the agreed terms of reference before then.

[Lord McNally (LD)]

My Lords, this debate is part of the unfinished business of Leveson in relation to both Section 40 and Leveson part 2. As the noble Baroness, Lady Hollins, explained, we are having to do this not because we are hijacking the Bill but because the Government have used various devices to avoid their commitments on those parts of Leveson. It is unfinished business because sections of the press, for which the noble Lord, Lord Black, is an eloquent spokesman in this House, have deliberately tried to frustrate the will of Parliament. The noble Baroness, with telling eloquence, has spoken for the people who were hurt and damaged by the excesses exposed by Leveson. They do not feel that they have received either closure or justice; nor is there much evidence of the press mending its ways.

I was one of the privy counsellors who signed the royal charter. The coalition Government went out of their way to defend the freedom of the press. Looking back, it is easy to forget just how much public horror, distaste and loathing there was for what was shown to be happening by the Leveson inquiry. Frankly, a Government of the day who had not been interested in the freedom of the press would have had a free hand to deal with it in the most draconian way. So I sometimes resent—not speeches in this House, of course, although they occasionally refer to this—articles in the Times and other papers that see any amendment as an immediate attack on the freedom of the press. We who are tabling these amendments want to strengthen the freedom of the press.

The Conservative Government, freed from the constraints of coalition, have gone back on their word to implement Section 40 and dragged their feet about Leveson 2. They added insult to injury by including the IPSO code in their list of approved codes but ignoring the Impress code, which had been approved by the Press Recognition Panel. The noble Earl, Lord Attlee, explained very well how the charter would have given a defence in the David v Goliath contest often faced by the ordinary citizen.

We are in Committee, so we will listen to the Government’s response to the amendments moved by the noble Baroness, Lady Hollins, the noble Earl, Lord Attlee, and the noble Lord, Lord Black. We will then make our decision on issues to vote on at Report. I listened very carefully to the noble Lord, Lord Black, and, as the noble Earl, Lord Attlee, said, he gave us food for thought, although he often sounds like the boy who murdered his parents and then asked for mercy because he was an orphan. However, there are issues there that need to be considered.

My approach, and the two amendments that I have signed, come from a person whom I know that the noble and learned Lord, Lord Keen, knows very well: the man on the Clapham omnibus. My concern, so very well expressed by the noble Lord, Lord Colville, is that it seems to me, as the man on the Clapham omnibus, that to ask investigative reporters to get prior permission is counterintuitive. Again, I would be very interested to hear the Government’s explanation, particularly of Clause 164(3)(c), which my amendment would delete, and how it would impact on investigative reporting.