Data Protection Bill [HL]

Debate between Earl Attlee and Lord Stevenson of Balmacara

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

[Earl Attlee (Con)]

My Lords, although it is perfectly correct to debate the Government’s Motion to agree with the Commons, I am not convinced that it is a good idea even to debate a further Lords amendment in lieu at this point. As my noble friend Lord Cormack pointed out, we are out of time. I agree with my noble and learned friend the Minister that the Bill is good enough and, if there is a vote, I will support the Minister.

I share the worries about the new role of the Secretary of State but unfortunately I do not think that it is an appropriate role for the Press Recognition Panel. The PRP has a very specific role, which is to test whether the approved regulator meets the standards laid out in the royal charter.

The House will be pleased to hear that I have cut out seven minutes of my speech. Nevertheless, I will be engaging with my noble friend Lord Black of Brentwood to explore how we can achieve what we all want: a free, vibrant, sustainable, competent press that adheres to the rules and acts decently, but which cannot be chilled by a very rich complainant.

[Lord Stevenson of Balmacara (Lab)]

My Lords, the test has been given to us: we have to assess whether or not this Bill is good enough to pass. It is not the test I think we were expecting. It is quite refreshing in some ways because it means we do not have to look at every jot and every tittle, every “i” and every “t”, to make sure they are correct—we can just say that it is good enough so go with it. I am not sure it is the test that will sustain in your Lordships’ House for time to come, and perhaps we can draw a veil over it once we have got through this short period.

Is the Bill good enough to pass? Yes it is, and I have no doubt that it will pass today. However, it leaves behind two or three unanswered questions and some substantial issues that we will have to come back to. I think we have heard enough in the speeches today to know that these issues are not finally vanquished: they are present and they will be back, and we should think about that. If we wanted any assurance that this goes across all parties, all disciplines and all times, the speech by the noble Lord, Lord Fairfax of Cameron, put us absolutely on the spot. There is a sense that a great injustice has happened and a sense of fairness among UK citizens to want to see it organised better and done again. There was an all-party consensus—the evidence is that there still is an all-party consensus—that we should do it.

This was not the right Bill—I always said that it was not—but we have made huge changes to the way in which the Government were proposing to legislate in this area, changes which I welcome. Victim of the timing as we are, if there had been more time available, we perhaps could have sorted out many more of them. But we are not going to be able to do that because we must get the Bill through before midnight on 25 May. I absolutely subscribe to that.

What is left to do? There is no doubt that we have to know more about who did what to whom in the period running up to the Leveson inquiry being announced in November 2011. My Amendment A2 would have given the Information Commissioner powers to look at that and to provide what would effectively be a benchmarking report to allow subsequent work “looking forward”—in the words of the Secretary of State—to have a proper sense of what it was they were testing. I still think that that would be the right solution, but the noble and learned Lord made some welcome remarks from the Dispatch Box at the beginning of the debate and I accept those as being sufficient to make sure that I can withdraw the amendment at the appropriate time.

There is the narrow question of whether we should look at the particular points raised in the two other amendments. I think they are victim to the problems that we have had with this Bill, in that we have not been able to give detailed scrutiny in Committee or on Report to issues that we perhaps should have done had they been around. It is good that they are there and that the Government have listened. It is fantastic that they are prepared to work with us on these issues; much of the wording here has come out of discussions and debates with Ministers outside the House, and we have seen the benefit of that.

However, Amendment 62BC as proposed by the noble Lord, Lord McNally, worries us, and my noble and learned friend Lord Falconer made the point very well. It states:

“The Secretary of State must, before the end of each review period, lay before Parliament a report produced by the Secretary of State or an appropriate person on … the use of relevant alternative dispute resolution procedures … and … the effectiveness of those procedures in such cases”.


That goes a bit too close to whether it is politicians—the Secretary of State in this case—directing how independent assessments should go forward. I would be grateful if the noble and learned Lord could comment on that. It may well mean that the Secretary of State has the power but the actual work is done by others and, as was always going to be the case, that it is just a report and not a review. The confusion comes, I think, from having “review period” specified in the Bill, which is something that we would have picked up earlier.

On my noble and learned friend Lord Falconer’s amendments, there are issues around whether we are, in some senses, giving a responsibility to the Information Commissioner but not the powers to do the job that we want done. Again, some words from the Dispatch Box might help. I have covered my Amendment A2, in the sense that I think that responses have come back.

Is there a future for work in this area? Yes, there is. IPSO has made a significant change to its working practices since it was established and is now doing good and effective work. I do not disagree that the right thing is to let it continue on its path, watch how it goes and look at the reports that will be made on its effectiveness under Amendment 62BC.

We should not be tempted to change the structure of the PRP and its approval of independent press regulators. It may seem otiose but, as there are now 100 titles signed up to it, at least it is doing something right. As the noble Lord, Lord McNally, said, that system may well have something to offer Facebook, Google and others who might be interested in making sure that they are properly regulated.

Given that we are looking forward and the worry that we have in a liberal democracy of being able to see the kind of quality press and comment that we have in our present print journalism, which I support entirely, the review being carried out by Frances Cairncross will result in a number of recommendations and it is possible that we will need to legislate for that. These issues could come back relatively soon and I hope they do. There is enough all-party support in this House and the other place to get some movement on that and we will be happy to do so. For the moment, we wish the Bill well. It is good enough and we hope it will come into force and do the job it is meant to do.

Data Protection Bill [HL]

Debate between Earl Attlee and Lord Stevenson of Balmacara

Report: 3rd sitting (Hansard - continued): House of Lords
Wednesday 10th January 2018 Lords Chamber

[Earl Attlee (Con)]

To regain some favour with my noble friend the Minister, may I just say a little word about affirmative orders? It is tempting to say that we should have affirmative procedure but, at the end of the day, we will have at some point to debate those affirmative orders, and they keep mounting up. In respect of negative instruments, there is a praying period and we can flag them up for debate and have them debated in the Chamber in exactly the same way as we can an affirmative order.

[Lord Stevenson of Balmacara]

But I think that the noble Earl would accept that the last time a negative instrument was prayed against successfully was something like 1940—certainly a long time ago—and it was about the use of petroleum with open flames.

Data Protection Bill [HL]

Debate between Earl Attlee and Lord Stevenson of Balmacara

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

[Earl Attlee]

My Lords, I would also like to have a little pop at the noble Lord. I understand his point that this is a Data Protection Bill and not something to amend the Crime and Courts Act. Of course, I experienced significant difficulties with the clerks trying to table an amendment to try to amend that Act. But if we had a suitable legislative opportunity—another criminal justice Bill—would the noble Lord’s party support an amendment to make Section 40 of the Crime and Courts Act commence forthwith?

[Lord Stevenson of Balmacara]

To answer that last point first, we have supported that in the past and on the right occasion we would probably support it again. But my point is not about the quality of the case made or the correctness of the approach. It is just not the right time to do that. The same answer applies to the noble Lord, Lord McNally. I did not say that we would not support him if he brought this back at Report. I am simply saying that, at this particular point, I want to use this debate to focus on something else and that is why I am trying to approach the issue in this way. I hope that noble Lords will bear with me before my voice gives up finally. I hope that I can allow that to ring out so that noble Lords can be inspired by it. That is a faint hope.

Underneath the debate that we have had today are some really important questions. I will pose them quickly in the hope that we will get a response from the Minister. It is really important that the noble and learned Lord uses this opportunity to set out very clearly what the Government’s position is on a number of these key points. Is the regime that currently applies to the press, as set out in the Data Protection Act 1998, still the case in the Bill? In other words, has the regime that has worked well since 1998 been changed in any way by its transposition into this Bill? If it has not, he has to be very clear that that is the case. The case that has been made suggests that, in the rewriting and repositioning of Clause 164, something has happened that has alerted everyone to the point, which was made very well by the noble Viscount, Lord Colville, and the noble Lord, Lord Black. I do not think that that was what we understand to be the case, and certainly I and my noble friend Lord Griffiths have asked for chapter and verse on this so that we can be sure that what we are seeing is exactly what the current law is. That is a straightforward question.

Secondly, we need to be persuaded, if we have not been already, that either the technology or the working practices in print journalism in particular, but also in relation to how print journalism is now often paired up with moving image technologies, has produced such a step-change in the way they operate that the additional defences proposed by the noble Lord, Lord Black, or the additional protections that might be needed by victims, which are so important and relevant, do not need to be brought into the Bill. The case has been made, the charge is there, and the Government must come back and tell us what arrangements have been made.

Thirdly, does the fact that many, but not all, direct investigations of a journalistic type are now done jointly with an audio-visual component, so that we have combinations between major newspapers and television broadcasters or even film, mean that we now have in perpetuity dual regulation, in which case the approach taken by Ofcom has to sit with the regulations under the Data Protection Act 1998 or the Data Protection Bill when it becomes law? If that is the case, we have a problem that needs to be confronted. We have one post hoc regulatory structure and one that is mainly post hoc but has an element, albeit restricted and on a narrow basis, in print journalism. If the way the world is moving suggests that everyone doing this work will have to be involved with two regulators, the Government’s Bill does not take that trick and we will need to come back to the point.

Fourthly, what is it about print journalism which is so different that it requires there to be a predetermination capacity for the ICO compared with the situation when the same work, and possibly the same output, is done under Ofcom? My noble friend Lord Puttnam and the noble Baroness, Lady Stowell, made the point that the difference is that the media in this country are very strongly regulated. There are codes, statutory frameworks and editors who are clearly responsible for them and work to them well. However, a different situation pertains here. That does not mean to say that it should be applied across all the outputs involving investigative journalism, but it must be said that if there was in existence a robust, independent and effective press complaints system which enjoyed the confidence of victims, perhaps we would make better progress on the particular issues which have been raised today. That is the point on which we must focus as regards where we might go with this. I hope that when the noble and learned Lord comes to respond, he can bring some light to this issue.