Data Protection Bill [HL]

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

Monday 6th November 2017 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I want to raise an issue which I would be grateful if it were thought about, although I would not dream of asking the Minister to give an informed reply today. I am puzzled especially by Amendment 37, spoken to by the noble Lord, Lord Griffiths, because I spent a good deal of my time developing the Equality Act 2010 and we were very concerned when doing so about issues of personal privacy and enforceability.

Obviously, one size does not fit all when it comes to equal opportunity and treatment. It is fairly easy to operate a policy measuring ethnicity, for example, without any problem about privacy; it is pretty easy to do so in respect of gender, although gender does not at the moment figure in the list for some reason, but it becomes terribly difficult when one is dealing with sexuality, religion or philosophical belief, which are for some reason in the list at the moment. I would be grateful if the Minister could reflect with people from the Government Equalities Office on whether this is an example of overlegislation, which it would be much better to prune down.

I am all in favour of affirmative action to promote equality between the sexes or people of different ethnicity, but when it comes to religion, philosophical belief and the other matters that are either there at the moment or would be there under Amendment 37, I get very worried. For example, I once represented the Church of Scientology—successfully—in establishing that scientology is a religion. I would not like these provisions to be the source of conflict and division between one kind of religion and another, or one kind of no religion and humanists, and so on. I think it is an example of overlegislation and underlegislation, and needs to be sorted.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, I am grateful to all noble Lords who have participated. I am especially grateful for the clear way in which the noble Lord, Lord Griffiths, outlined the case for all his amendments. He could have chosen an easier Bill to start on, I must say, but he did it very well. I am grateful for the opportunity to set out the purpose of various conditions included in Schedule 1, this time specifically with reference to Part 2.

As we have already discussed, for “special categories of data” to be processed lawfully, controllers must demonstrate that their processing meets one of the processing conditions set out in article 9 of the GDPR. We have already touched on several of these. Here we turn to processing which is,

“necessary for reasons of substantial public interest”.

Clause 9 requires that controllers wishing to rely on this processing condition must meet one of the conditions set out in Part 2 of Schedule 1.

Paragraph 7 of Schedule 1 allows processing of certain specified special categories of personal data for the purpose of promoting equality of opportunity. Amendment 37 seeks to expand this condition to permit the processing of additional categories of personal data. This is unnecessary because the categories of data referred to in the amendment are either not considered by the GDPR framework to be special categories of data in the first place or covered by the categories already listed in paragraph 7 of Schedule 1; for example, “Personal data revealing age” need not be listed because it is not subject to additional protection to begin with.

The Government accept that the existing special categories of data are broad and in some circumstances will overlap with the categories of data suggested in the amendment; for example,

“Personal data revealing a disability”,

will fall within the special category of “Data concerning health”. But in these cases, paragraph 7 already permits the processing of such data for equality-monitoring purposes. I will read carefully the remarks of the noble Lord, Lord Lester. I suspect his point is to do with what is and what is not a special category of data, but I will read Hansard and write to him, and copy other noble Lords. I thank him for not requiring a considered answer tonight.

Amendments 38 and 39 address the condition in paragraph 8 which permits the processing of data where this is,

“necessary for the purposes of the prevention or detection of an unlawful act”.

Amendment 38 would make it clear that the condition was available only if the unlawful act in question was “serious”. I can understand the rationale behind the amendment but the Government consider that it might nevertheless be in the substantial public interest for an organisation to process data for the prevention or detection of an unlawful act that was not obviously “serious”. An offence such as driving without a licence or insurance may not be the most serious in terms of the maximum penalty available, but it could still be in the substantial public interest for it to be reported by the data controller. Paragraph 8 ensures that data controllers are empowered to make that call and be accountable for their decision.

Amendment 39 would make the condition available only,

“under circumstances in which it is reasonably clear that a data subject is unlikely to give consent”.

While similar provision is made in other conditions where required, the Government consider that it would not be appropriate in this case, given that the purpose is to process data in circumstances where seeking consent risks prejudicing the prevention or detection of an unlawful act.

Amendment 40 would remove the word “dishonesty” from paragraph 9(2)(a) so that an organisation could rely on this provision only if it were processing sensitive categories of personal data to protect the public from malpractice, other seriously improper conduct or the other listed behaviours. The Government consider that there might be situations where an organisation would also need to process data to protect the public from dishonesty that does not necessarily amount to malpractice or improper conduct. It is therefore right that the paragraph covers the full gamut. This processing condition is not new; a similarly worded provision already exists under the current Data Protection Act.

The noble Lord, Lord Griffiths, suggested that there was a need for a further definition of “dishonesty”. I am afraid we do not agree. The word has a plain English meaning, defined in the dictionary. Furthermore, to define it here would cause confusion as it is used throughout UK legislation.

Amendment 41 would extend the scope of the same processing condition so that it could also be used to protect bodies and associations, rather than just the general public, from dishonesty, malpractice and improper conduct. It is one thing to allow the processing of an individual’s personal data for the purposes of protecting the general public—that is, other individuals; there is a neat symmetry there—but quite another to suggest that it could be processed to protect organisations from reputational harm. On that basis, I cannot agree to include it.

Amendments 43 and 44 address the processing condition in paragraph 12 which allows organisations such as banks to make disclosures “in good faith” under the Terrorism Act 2000 and the Proceeds of Crime Act 2002 about third parties who are suspected of terrorist-financing offences or money laundering. This processing condition is intended to protect organisations that disclose data on the basis of a genuine suspicion, even if it turns out later not to have been well founded. Noble Lords will recall that this condition was debated and agreed to as part of the Criminal Finances Bill earlier this year. The condition is tied to the improvement of a specific statutory regime—known as the suspicious activity reports regime—and is designed to give legal clarity to encourage the sharing of information to prevent serious crime and terrorism. I know there are some in the financial sector who have suggested that these provisions should go further to permit screening by private companies for the purposes of checking against non-UK laws on terrorist financing and money laundering. As noble Lords may be aware, the relevant provisions in the Criminal Finances Act were commenced only at the end of last month. We are not convinced that there is a need to amend them at such an early stage.

Amendment 45 would amend the processing condition relating to,

“confidential counselling, advice or support”,

in paragraph 13. It would add “guidance” to the list of processing activities which are permitted under this provision. This paragraph is not new; the relevant wording is drawn directly from existing legislation. But I am happy to put on the record the Government’s view that guidance is already covered by this provision and thus there is no need to amend it.

Amendments 45A and 64 in the name of my noble friend Lady Neville-Jones seek to clarify the legal status of processing by patient support groups. The Government strongly support the varied and important work of patient support groups and I am grateful for my noble friend’s time in meeting me recently. It is important to reiterate that groups such as Unique will have access to a number of provisions already in the Bill, even in cases where consent cannot be obtained, or reobtained, from the data subject.

We discussed the provisions for scientific research last week. In addition, paragraph 13 of Schedule 1 makes provision for confidential counselling, advice and support. Taken together, the provisions I have mentioned—for consent, scientific research, and confidential counselling, advice and support—seem to cover a great deal of the vital work undertaken by patient support groups. But the Government retain an open mind on this and I will read my noble friend’s contribution in Hansard carefully.

Digital Economy Bill

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

Ping Pong (Hansard): House of Lords
Thursday 27th April 2017 Lords Chamber

[Lord Ashton of Hyde]

My Lords, I am grateful for all noble Lords’ contributions. I will start with the noble Lord, Lord Best. I am grateful for the limited thanks he gave me. I give him unqualified thanks in return. We have talked about this for a long time, both in and out of the Chamber. The one thing I can say about the Government’s view on the BBC licence fee is that we have been entirely consistent.

I say to the noble Lord, Lord Lester, that in conversations over a period of time, both in and out of the Chamber, I have never given him any reason to expect that we would change our view on this. He said he was pathetically optimistic. I hope he remains optimistic in other things but we have been entirely consistent on this matter. As I explained at length, we do not believe that it is right for a tax to be consulted on.

I understand the issues and the strength of feeling in this House. That is why we have made some changes during the charter renewal process. We have outlined, as I said, that we have protected the funding for five years so that we will not have any so-called midnight raids. It is also protected from inflation, which it was not before. We have agreed that we will take in information and expert advice before the process goes ahead in five years’ time. I of course take the threat from the noble Lord, Lord Lester, about a Private Member’s Bill extremely seriously. I must assume that there is a possibility it will be forthcoming and I look forward to debating it with him. At the moment, I do not believe that our situation is likely to change but of course in 11 years’ time, it might. I do not think I will be involved in it at that time.

The noble Lord asked a number of questions about whether the Government will guarantee the independence of the BBC, agree not to top-slice the licence fee and adequately fund the BBC. The new charter endorses the role and independence of the BBC—and increases that independence in a number of ways—and this Government will of course live by the provisions of the royal charter, as far as the independence of the BBC is concerned. On funding, we have agreed to give it a five-year period and will ensure that it is properly funded for the future but a negotiation will take place at that time.

As for the point made by the noble Viscount, Lord Colville, about timing, Ofcom will get going when it feels it necessary. What we have done is to put an end date on that in our amendment, so that it will have to produce its report in about two and a half years’ time. That is a great advantage.

[Lord Lester of Herne Hill]

Did I understand the Minister to have given an assurance to the House just now that the Government regard themselves as under a duty to respect the independence of the BBC, and to provide sufficient funding to pursue its purposes as an independent public service broadcaster? If the answer to those questions is yes, I am extremely grateful and if the answer is no then I say to the Minister: power is delightful and absolute power is absolutely delightful but that should not be his motto.

[Lord Ashton of Hyde]

What I said was that we of course abide by what we have put in the royal charter, which mentions the independence of the BBC and enhances that independence from what came before. As far as funding is concerned, we have a five-year deal and the funding negotiation will go on but it is clearly not the Government’s desire to prevent the BBC carrying out its purposes. There will be a negotiation—this is a tax to provide for the BBC—and each five-year period will be taken on a separate basis.

The noble Lord, Lord Stevenson, referred to the next funding period and the election cycle. An 11-year cycle was carefully chosen to remove funding from the electoral cycle, I think at the suggestion of this House among others, and it is of course unfortunate that it has been changed by the absence of the fixed term. But the Fixed-term Parliaments Act is not a guarantee of a five-year Parliament—the provisions were written into the Act to make sure that that was the case. The new five-year settlement will be reached before the next election while the funding settlement is based on an 18-month to 24-month negotiation so, assuming the Parliament goes to the full five-year term, it would be in place before the election.

Fundamentally, a long charter allows the BBC to operate with greater certainty and with the freedom and confidence to deliver its objectives. It is also worth remembering that in the course of the BBC’s 100-year history, the charter renewal process has coincided with the electoral cycle on a number of occasions. Yet the process has always managed to conclude successfully, to ensure that the BBC can continue to thrive.

Moving on to the EPG, there was a suggestion that we should take a broad Henry VIII power. I think that the noble Lords, Lord Clement-Jones and Lord Stevenson, both mentioned this. It is an unusual situation where both Opposition Front Benches are asking—almost demanding—the Government to take a broad Henry VIII power. I would normally say that I probably agreed but in this case, the problem is that the power would have to be very broad and wide-ranging. Amendments could be necessary to the Communications Act 2003 and the Broadcasting Acts of 1990 and 1996. Depending on what Ofcom recommended, a wider amendment might be needed beyond traditional broadcasting legislation to other areas which we would not necessarily wish to capture, such as other online services. We think this is the best way forward.

The noble Lord, Lord Stevenson, also asked about our belief in public sector broadcasting. We have accepted the arguments from your Lordships’ House on listed events, to maintain them on our free-to-air channels, and from the noble Baroness, Lady Benjamin, on children’s TV to ensure the adequacy of provision. These are evidence of our support for PSBs.

I know that noble Lords were disappointed about the BBC licence fee. As I said, we were entirely consistent on this. The commitment that we and the Minister in the other place have made on EPG should be some comfort to those who were disappointed with our answers on this. As a result, I hope that they will be able to accept this amendment.

Digital Economy Bill

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

Report: 3rd sitting (Hansard): House of Lords
Wednesday 29th March 2017 Lords Chamber

[Lord Ashton of Hyde]

The point that I made was that, when setting taxes, the Government have to take account of the overall revenue raising, and this is just one element of revenue raising. I agree that whether it is a hypothecated tax is another question, but the point is that it is a tax and the Government do not consult on taxes.

Perhaps I may continue. I was talking about public consultation. The BBC’s funding needs are complicated and technical, as we have seen with every licence fee settlement, and agreeing the overall package is a finely balanced act. The requirement to ask the BBC for information and seek external advice is a sensible way of ensuring that Ministers’ decisions are well informed.

Despite what the noble Lord, Lord Best, said about consultations, the recent charter review found that, although almost 75% of the public consider the BBC’s programming to be high-quality, just 20% said that they would like to see the licence fee rise even in line with inflation, thereby helping the BBC to maintain those high standards. At the same time, the BBC also needs to become more efficient from reducing layers of management and property costs.

Public consultation needs to be approached with due sensitivity. It is right that decisions that balance the funding needs of the BBC and pressures on family budgets are taken by Ministers, who are accountable for those decisions, and that they are not decisions strongly influenced by an unelected new body. In answer to the noble Lord, Lord Pannick, the Government’s view is that it should therefore remain for the elected Government of the day to decide how to approach reaching an appropriate level of BBC funding in a detailed and extensive negotiation with the BBC. Despite the difficulties associated with the last licence fee settlement, as I have said, it resulted in what the noble Lord, Lord Hall, has said is a strong deal for the BBC, giving it financial stability, and we can see that the licence fee will rise for the next five years.

The noble Lord, Lord Lester, has tabled an amendment to put a duty on the Secretary of State to ensure that the BBC is funded to function effectively and independently as a public service broadcaster. I am pleased to see the noble Lord in the Chamber today—it was unfortunate that he was not able to participate in last week’s debate on his previous amendment. Without repeating myself unduly, I remind noble Lords that the Government remain of the view that the BBC is best governed through a royal charter. A statutory underpinning, however limited initially, would leave the BBC under a constant threat of change from what parliamentarians of the day might see as the “national interest”. Where a change might be genuinely required, the uncertain legislative timetable, party-political debate and pressure could all militate against resolving the issue at hand in an efficient manner.

[Lord Lester of Herne Hill]

The Minister has not answered my question, which was, quite simply, whether this Government—not one in five years’ time—accept that the Secretary of State has a duty, whether under the charter or otherwise, to ensure that the BBC is so funded as to function independently and effectively as a public service broadcaster.

[Lord Ashton of Hyde]

I was aware of the noble Lord’s question and was just about to come to it. The BBC charter already provides that the Secretary of State, in determining the funding settlement, must assess the level of funding required for the effective fulfilment of the mission and public purposes.

[Lord Lester of Herne Hill]

What does that answer mean? The charter does not say what I have just asked the Minister. Is he saying that, in looking at the charter, the Government accept this obligation and that it is embodied in the charter? If so, I welcome that. However, I am not clear whether the Government accept this duty or not. My final question, which no doubt he will come to, is this: please can I come and see the Culture Secretary with him?

[Lord Ashton of Hyde]

I think I can answer that to the noble Lord’s satisfaction. Yes, I will certainly talk to the Secretary of State and ask that the noble Lord can come and see him—with or without me, depending on his choice.

I do not want to dwell on this too much, but when we talk about sufficient funding and what the Secretary of State has a duty to do, of course the Secretary of State has a duty to abide by the royal charter in the same way that the BBC, the new unitary board and Ofcom do. I said:

“The Secretary of State, in determining a funding settlement, must … assess the level of funding required for effective fulfilment of the Mission and promotion of the Public Purposes”—


which is what the charter says. I agree that the Secretary of State must do what the charter says. I hope that answers the noble Lord’s question.

I will go further. The noble Lord’s amendment talks about the independence of the BBC, but Article 3 of the BBC’s charter already states:

“The BBC must be independent in all matters concerning the fulfilment of its Mission and the promotion of the Public Purposes, particularly as regards editorial and creative decisions, the times and manner in which its output and services are supplied, and in the management of its affairs”.


The question of enshrining parts of the BBC’s royal charter in statute should be a matter for the Government of the day to decide ahead of the next charter review. Given noble Lords’ ongoing interest and informed views, I am confident that the Government of the day will be minded to consider this carefully.

In summary, the Government have already increased the transparency of the way in which the BBC’s funding settlements are agreed. We have given the BBC stability by regularising the settlement period, which is now removed from the election cycle. The BBC will be required to provide information to the Secretary of State on its funding needs, and the Government of the day will consider taking independent advice. The licence fee is a tax and the Government do not consult on taxes. The amendments could have unintentional consequences in constraining the ability of the Government—

Digital Economy Bill

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Lord Ashton of Hyde]

I will come to that. Of course, future Governments will have to make their own arrangements in negotiations with the BBC. The BBC licence fee is a tax. Of course, the Chancellor of the Exchequer and the elected Government have a say in how taxes are raised and spent.

[Lord Lester of Herne Hill]

The Minister has twice said that the licence fee is a tax. What is the basis of that? I would have thought that the licence fee is a service charge for a service provided to those who pay the licence. That does not sound like a tax. It is not imposed by the Treasury. It is a service fee. When I watch television, because I am old I no longer have to pay, for some reason—that is another matter—but I cannot understand how it can be regarded as a tax. By calling it a tax, surely the Minister is making a threat about future inroads into the BBC’s revenue.

[Lord Ashton of Hyde]

I certainly do not intend to make threats and I am hardly in a position to do so. I called it a tax because it is so classified by the Office for National Statistics. It is regarded officially as a tax.

The funding agreement announced last July included a number of measures which will increase the BBC’s income—for example, the closure of the iPlayer loophole and the increase of the licence fee with inflation. In combination with the transfer of funding for the over-75s concession, this means that the BBC will have a flat cash settlement to 2021-22, not a 20% cut. Indeed, the director-general said in July last year:

“The government’s decision here to put the cost of the over-75s on us has been more than matched by the deal coming back for the BBC”.


The amendments in the name of the noble Lord, Lord Lester, would endanger the effectiveness with which the BBC can be governed, and weaken the incentives for the corporation to strive for excellence and efficiency, as well as public support for the BBC’s funding.

As noble Lords know, both Houses had many opportunities to shape the future of the BBC throughout the charter review, and the Government appreciate that valuable input. But we remain of the view that the royal charter in its current form has served the BBC extremely well over many decades. The BBC agrees. The BBC’s director-general, Tony Hall—the noble Lord, Lord Hall—has welcomed the new charter, saying that,

“we have the right outcome for the BBC and its role as a creative power for Britain. It lays the foundation for more great programmes and journalism”.

With that, I hope the noble Lord will withdraw his amendment.

[Lord Lester of Herne Hill]

I am grateful to the Minister for his reply. I am not at all surprised and I remain optimistic. What I shall now do is read very carefully all the points he has made, look at the amendments that we have been discussing, strip out anything which can reasonably be objected to in the opinion of the Government and those taking part in the debate, and come back to the matter on Report—

[Lord Ashton of Hyde]

If it is helpful, I am very happy to meet and discuss this.

[Lord Lester of Herne Hill]

What I am hoping will happen is that Lord Hall of Liverpool—the director-general—will meet Ministers himself. He has been quoted in particular ways now and I will not attribute any views to him, because that would jeopardise the independence of the BBC, but I very much hope that he will meet the Secretary of State and explain privately what he thinks about these issues. From my point of view, as a would-be midwife, all I am trying to do is create a framework of principles which do not have any of the detrimental effects that the Minister has pointed to. I will seek to do that, and I hope that it will not be necessary on Report to divide the House. I am optimistic enough to believe that a thinking, open-minded Government in discussion with the BBC could come up with some statutory underpinning that would give a framework of principles without these detrimental effects. On that basis, I shall withdraw this amendment and will not pursue others in the group.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I am grateful to the noble Lords who tabled these amendments today, and in particular to the noble Lord, Lord Best, and the Communications Committee, which he chaired. I am also grateful for the contributions of the noble Lord, Lord Birt, and the noble Viscount, Lord Colville, on the future of the licence fee itself and how it may be arranged in the future, which is slightly separate from the debate we are having today about the process for doing it. I accept that, as technology changes, the way it is structured may have to be changed in the future. I hope we can have debates on that separately at some stage in the future. I am also grateful to the noble Lords, Lord Lester and Lord Stevenson, for their amendments.

Today we are debating a new nuance regarding the BBC licence fee. On a number of occasions, Members of the House have been clear that they would like to see an end to what some have called “midnight raids” on the BBC licence fee, and we have listened to that. The BBC’s new charter regularises the BBC’s future financial settlements for the first time, and the next one will be in five years’ time. In the meantime, there will be an inflation-linked increase.

The current charter also requires the BBC to provide data ahead of each licence fee settlement to inform the Government’s decision. It is, therefore, explicitly clear that the BBC will be able to make its case and the Government of the day will be able to consider that. It also follows that anyone with valuable views and thoughts on the subject, including noble Lords—many of whom I know have experience in these matters—can share these views with the Government when the time comes.

The noble Lord, Lord Best, suggests that Ofcom should recommend what the level of funding for the BBC should be, and he proposes further that there should be a public consultation on the appropriate level of funding. It is entirely appropriate that the assessment of the BBC’s funding needs and the subsequent level of the licence fee should remain a matter for the Secretary of State. As I said before, the licence fee is a tax paid by the licence fee payer, and taxation is a matter for the elected Government rather than an unelected regulator. It is right that the Government should have some responsibility for decisions that affect the tax bills of UK citizens, as I have set out before. We would be setting potentially odd incentives for the BBC’s regulator if—as the noble Lord, Lord Lester, pointed out—it would now also be called upon to make funding recommendations. The now-abolished trust model showed that mixing regulatory and strategic functions breeds confusion and conflicting incentives. The consensus has been that this has not worked and we do not want to recreate this model.

Ofcom needs to concentrate on regulating the BBC effectively. The noble Lords, Lord Lester and Lord Stevenson, have both proposed the establishment of an independent licence fee commission to make recommendations to the Secretary of State. We agree with the sentiment of independent advice. The Government stated in their White Paper, published last May, that they would consider taking independent advice at the next settlement should it be appropriate. However, that is a matter for the Government of the day. As with Ofcom, it would not be appropriate for an independent commission to make recommendations on level of taxation.

[Lord Lester of Herne Hill]

As I listen to the noble Lord, the problem arises when he says, “That would be a matter for the Government of the day”. All this is very interesting and relevant, but none of it is binding. Effectively, the Minister is putting forward perfectly reasonable ideas for the future, but none of them has any bite. None of them is binding unless Parliament makes it so. I am afraid it is a question of wriggling to find ways of avoiding any parliamentary underpinning at all. It is that which everyone who has spoken in this House, but one, believes to be wrong. Therefore we will have to come back to it on Report.

[Lord Ashton of Hyde]

I understand the point the noble Lord is making; he illustrated it right at the beginning of his speech in the previous debate. This is a matter of principle: whether we think statutory underpinning is the right mechanism for the royal charter for the BBC. I acknowledged to him that in some cases it might be, but I did not agree that it was appropriate for the BBC. I take his point and his due warning about Report. I agree it is relevant to this, but we have established that we have a disagreement on that point of principle. As for binding future Governments, of course we do not want to do that, and, in fact, we cannot.

The next question is that of public consultation on the settlement or the level of the licence fee. As noble Lords will appreciate, funding a public service is not a straightforward topic for public consultation. For example, the recent charter review found that almost 75% of the public consider the BBC’s programming to be of a high quality, but just 20% said that they would like to see the licence fee rise in line with inflation, thus helping the BBC maintain these high standards. Public consultation, therefore, needs to be approached with due sensitivity.

The BBC’s funding needs are a very complicated and technical issue, as we have seen at every licence fee settlement. The judgment about the overall package is a fine one. It should therefore remain for the elected Government to decide how to approach reaching an appropriate level of BBC funding in a detailed and extensive negotiation with the BBC. As I have said, this resulted in a position that the director-general has said is a strong deal for the BBC that gives it financial stability.

Finally, Amendment 223 seeks to remove the ability of the BBC to set age-related licence fee concessions in the future. I have already explained that the licence fee is a tax and it is right that the Government should retain the ability to determine the outline priorities of what it should be spent on. The BBC explicitly sought responsibility for the age-related licence fee concession. Removing the BBC’s ability to determine this policy—for which it will pay—simply prevents the BBC being the master of its own destiny. I believe it is particularly arbitrary to withdraw the BBC’s ability to set this concession without knowledge of what the overall funding package for the BBC will be at that future point. I do not believe that that is in the BBC’s interest, now or in the future. With those explanations I hope that, for the time being, the noble Lord will feel able to withdraw his amendment.

Digital Economy Bill

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

2nd reading (Hansard): House of Lords
Tuesday 13th December 2016 Lords Chamber

[Lord Ashton of Hyde]

We think it should be left to the market to decide that. My noble friend Lord Grade and the noble Lords, Lord Foster, Lord Storey and Lord Macdonald, and probably others talked about the length of the transitional arrangements, and basically said that we should get on with it. The Intellectual Property Office has recently consulted on this, as is right and proper. The Government are considering the responses received and we will state our intentions on how this reform will be implemented shortly.

The noble Baroness, Lady Janke, asked about counterfeit electrical goods. The Government have committed in their recent IP enforcement strategy to develop a methodology for assessing the availability of and harm caused by counterfeits, which will of course include counterfeit electrical goods. Government officials regularly meet with major online retailers to help reduce the availability of counterfeits on their platforms and to help co-ordinate efforts with law enforcement to take action against sellers. In addition, as required by EU law, most online platforms already have routes to allow suspected IP-infringing content to be reported and promptly removed.

Data sharing is an important part of the Bill. The noble Baroness, Lady Janke, and the noble Lord, Lord Clement-Jones, expressed concern about bulk data sharing. Under the powers, data sharing must comply with the Data Protection Act. Information can be shared only for the specific purposes set out in the Bill, and only the minimum data required to achieve these purposes will be shared—a point reinforced in our draft codes of practice.

The noble Baroness, Lady Kidron, asked whether data would be shared without consent. Where possible, consent will be sought, but this is not always possible. These new powers are to allow government to reach out and help. We have given examples of reaching out to the fuel poor and to the vulnerable so that help and support can be offered rather than sought. These people may not have consented to data sharing, but that is partly because we often never know when we might need to help in future. We will, where appropriate, conduct privacy assessments and publish them, and we will always protect personal data under the Data Protection Act.

Several noble Lords raised the question of health data. As noble Lords appreciate, health data are of great value to research, as they address multiple complex issues that affect individuals, households and other purposes. However, great sensitivities are involved in how this is handled, which is why we are excluding the use of health and adult social care data from our powers until the recommendations of the National Data Guardian’s review have been implemented and public confidence in the way the health and care system uses confidential personal data can be demonstrated. I should mention that the Government support Jo Churchill MP’s Bill on the National Data Guardian, which has its Second Reading on Friday.

The BBC is an important part of the Bill and we have debated this as part of official business 18 times since last June—and I suspect we may do so again. When we scrutinised the new charter on 12 October, there was a consensus that enormous progress had been made. The charter has now been approved by Her Majesty the Queen and will soon be in force. The noble Lords, Lord Lester and Lord Stevenson, the noble Baroness, Lady Kidron, and the noble Viscount, Lord Colville, talked about the budget deal last year. This was part of a negotiation with the BBC that is complete. The BBC said only two weeks ago that,

“the overall funding settlement reached with the government provides the financial stability for a strong creative BBC”.

The BBC is clear that reopening the settlement would just create uncertainty and potentially leave it worse off.

With regard to the future process, let me be clear. The charter, for the first time, sets the timing for the BBC’s future financial settlements at once every five years. The charter also requires the BBC to provide data ahead of each licence fee settlement. The BBC will be able to use this to make its case, and the Government of the day will be able to consider that.

The noble Lords, Lord Lester and Lord Foster, mentioned the National Citizen Service charter. I agree that that was a royal charter and that it had a Bill, but we think that is different. I could go into the reasons, but undoubtedly we will talk about that in Committee, so I will not do so at this time.

[Lord Lester of Herne Hill]

I am very grateful to the Minister as the hour is late. I am sure he appreciates that I made it clear that I did not favour undoing the deal that had already been done. However, I am looking to the future. Will he be able to address in some form, before Committee, the reasons why the Government reject any statutory underpinning—if that is their position?

[Lord Ashton of Hyde]

That is their position and I certainly will do that. If that point was not in a specific question, I will certainly endeavour to address it. I expected the noble Lord to raise that point because he warned me during the debate on the BBC that it would be coming.

We are reaching the end of our time and there are still a few things that I could talk about. I will have to write to noble Lords about extending EPG prominence and about subtitles on on-demand and audio-visual services, which we are intending to bring in. A lot of noble Lords asked about ticket bots. We agree that there is a problem and that the Government should fix it. A series of round tables has been held at enforcement agencies and with the sector. The Government will give full consideration to what was said at those round tables, in Parliament and in the Waterson report on ticket bots and harvesting tickets.

I think that we have run out of time. I thank noble Lords for all their constructive and interesting comments on the Bill and I look forward to further discussions. It is clear that the Bill is complex but, despite all the seasonal jokes about its Christmas-tree appearance, I hope that your Lordships can take inspiration from Antony Gormley’s tree at the Connaught, which has not a single bauble upon it.

The Digital Economy Bill will support investment in digital infrastructure and support consumers and businesses in taking advantage of the opportunities of the digital economy. It will also enable the digital transformation of government. I commend the Bill to the House and ask your Lordships to give it a Second Reading.

BBC Charter

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

Wednesday 12th October 2016 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, the late Lord Campbell of Alloway once rebuked me for making a serious point after the dinner hour. I am very sorry to make an intervention at a quarter to 11 pm, but am I right in understanding what the Minister said—that any new funding settlement will not be the subject of public consultation or parliamentary approval, and that there will be no binding safeguards against undue interference with the BBC and its editorial independence in the charter or the agreement? Is that correct, or have I misunderstood?

[Lord Ashton of Hyde]

The noble Lord is correct in saying that I have given no undertakings about how the process will take place in five years’ time. I said that we had certainty for five years, which is a new thing. However, it is not for me to say what the Government will do in five years’ time, although I know that the noble Lord would like me to do so. Measures in the agreement set out that the BBC will provide evidence to the Secretary of State, but at the moment there are no guarantees that there will be a vote in Parliament on the funding settlement. There may well be a discussion about it but I cannot give a guarantee today that there will be a binding vote.

--- Later in debate ---

[Lord Ashton of Hyde]

As far as I understand it from the Bank of England Bill, the NAO is set up and has statutory powers to go in and do its job. The framework agreement and the charter specifically say that, notwithstanding the statutory powers of the NAO, it is not able to judge on editorial matters. At the last resort it can go in under its statutory powers. It is not allowed to opine on editorial matters, but the tricky thing is: what is an editorial matter? That is where we want the memorandum of understanding between the NAO and the BBC to be agreed. My attempted explanation was to cover just what happens if the memorandum of understanding is not agreed. That is where I said the DCMS and the Secretary of State would lend a hand to make sure it is.

[Lord Lester of Herne Hill]

The Minister has my great sympathy as I listen to him. The fundamental problem I have is I do not understand how this charter and agreement will be enforced. I gave the example in my speech of the King Charles I clause—Clause 67 of the agreement. It is a power of unlimited censorship over the BBC. It is in an agreement, not in a statute. Could the Minister write to me and explain how the limits to that of proportionality, necessity and all the rest of it are to be enforced?

[Lord Ashton of Hyde]

Absolutely. I may be able to come to that, but if I do not I will certainly write to the noble Lord. I take his point.

The noble Baroness, Lady Liddell, and the noble Lord, Lord Williams, talked about the World Service. I agree with all noble Lords who spoke about that, saying that it is one of the most highly regarded offerings of the BBC. We acknowledge that. I can personally testify to that, having just come back from Myanmar, where it played a huge role during the time the generals were in charge. That is why we have protected funding for the World Service from the licence fee for the next five years and we have increased its funding even further by £34 million in 2016-17 and by £85 million for each of the three years thereafter. I will write to the noble Lord, Lord Williams, about the World Service in Korea.

BBC Monitoring is a Foreign Office responsibility and is co-ordinated by the Cabinet Office. An agreement between them and the BBC is expected very shortly.

I take on board the point made by many noble Lords about the statutory underpinning of the BBC. We do not agree with the noble Lord, Lord Lester, and other people on that. I will write to noble Lords about it. I have promised to listen; I do not hold out great hope that it will happen in this charter, but I recognise that it is an issue which has been raised around the House.

On the contestable pot mentioned by the noble Baroness, Lady Benjamin, we will consult in the autumn on precisely how the fund will work—I look forward to her full contribution to the consultation—to ensure that the fund can support under-served genres as effectively as possible. We will have to see at the end of the pilot exactly what we do.

I agree with the noble Baroness that diversity is one of the most important issues, which is why we have made it a new duty for the BBC. I do not think we can be much clearer about how much of a focus it should be. She may have seen in the newspapers a couple of days ago that Sharon White of Ofcom went public in saying how important she thought diversity was and that Ofcom intends to look at it.

There are a number of points to which I will not be able to respond—from the right reverend Prelate about accountability to licence fee payers, and from the noble Lord, Lord Lester, on Clause 67(4) and on his further point. On appointments, we think that we have moved quite a long way and are in considerably better shape than we were when all members of the trust were appointed by the Government. On independence, I think that there are things which the noble Lord, Lord Inglewood, will be happier about and the Government agree with him about the importance of that.

I need to come to a close because I am over time.

BBC: Royal Charter

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

Tuesday 19th July 2016 Lords Chamber

[Lord Ashton of Hyde]

My Lords, the Government will hold take-note debates in both Houses, in line with what was done for the last charter review, which reflects the importance of the BBC’s independence. The current plan is to hold a debate in this House in October, subject to other parliamentary business. If Members of the House wish to vote on the charter, they are free to do so on their own initiative, following the usual procedures.

[Lord Lester of Herne Hill (LD)]

My Lords, I wonder whether I can persuade the Minister and the Government to accelerate the programme slightly. I believe the Digital Economy Bill, which is before the other place, is due to have its Second Reading in September. It is impossible to understand Clauses 75 and 76 of that Bill unless one sees the draft charter and the framework agreement, as the Explanatory Notes make pretty clear. Although it is not in this House but in the other place, like many I am concerned that it is important for Members of both Houses to be able to understand what those clauses mean. In particular, there is a rather threatening clause about Ofcom. According to the Explanatory Notes, Ofcom, “in its new role”, will be able to,

“regulate all of the BBC’s activities”.

If that is right, and that includes content, it is chilling. That is why it is very important to see the draft charter—if possible on its own, although I would prefer it with the framework agreement—sooner rather than later.

[Lord Ashton of Hyde]

My Lords, I apologise: I should have thanked the noble Lord for his kind words. As far as the timing is concerned, the draft charter will be published with the framework agreement in September. That is the current plan. I doubt very much that it will be before September. There is still work to be done. I understand the implications and the linkage with the Digital Economy Bill. We aim to allow ample time after the draft framework and charter have been published to allow the noble Lord and others to look at it carefully. My department is happy to have individual discussions with noble Lords.

Cohabitation Rights Bill [HL]

Debate between Lord Ashton of Hyde and Lord Lester of Herne Hill

Friday 12th December 2014 Lords Chamber

[Lord Ashton of Hyde (Con)]

My Lords, I, too, thank my noble friend Lord Marks for bringing forward the Cohabitation Rights Bill and providing a further opportunity to debate this important subject. As a novice in these issues—and in marriage itself, with only 27 years under my belt, just over half the number of the noble and learned Baroness, Lady Butler-Sloss—I have learnt much listening to the contributions of noble Lords, many of whom have long experience of these matters and have been debating them in this House for many years. I pay tribute to my noble friend Lord Lester of Herne Hill, who introduced previous Bills on this subject.

The Bill addresses the issue of what rights individual cohabitants should have against each other. At present, when a couple break up, those rights are decided by applying a patchwork of legal rules that sometimes provide one cohabitant with an interest in the other’s property, and by the statutory intestacy and family provision rules when one of the couple dies without making a valid will.

The Bill would, in broad terms, implement recommendations in two Law Commission reports. The first is the report, Cohabitation: The Financial Consequences of Relationship Breakdown, published in July 2007. The Bill would implement most of the recommendations in that report. The second is the report, Intestacy and Family Provision Claims on Death, which was published in December 2011. The Bill would implement the recommendations in that report relating to cohabitants. The Government have already implemented the other recommendations in this report in the Inheritance and Trustees’ Powers Act 2014, which came into force on 1 October.

Here, I mention my noble friend Lord Lester’s comments about the way that Governments in general approach legal reform—in particular, Law Commission reforms. He will of course have realised that this Government are in fact implementing the Law Commission’s proposals under the insurance Act.

The overall effect of the Bill and the Law Commission’s recommendations in those two reports would be to create a scheme of legal rights and obligations for cohabiting couples. I should say at the outset that while the Government will not oppose the Motion to give the Bill a Second Reading, the Government have reservations about the Bill. It deals with serious personal and family issues on which very different views may be genuinely and firmly held—and, I may say, courteously debated. Today’s debate is testament to that fact, as were our previous debates on these matters. In our debate today, the numbers of speakers for and against—which is obviously not a scientific survey—were equally matched: or rather, virtually equally, given that there were seven speakers.

The Government have consistently taken the view that major changes relating to the rights of cohabitants must be fully considered. The speeches of the noble Baroness, Lady Deech, and the noble Lord, Lord Marks, alone would demonstrate the wisdom of proper consideration.

The process of consideration of the recommendations in the Law Commission’s 2007 report of course began under the previous Administration, as the noble Baroness, Lady Thornton, mentioned, but had not been concluded when this Government took office. This Government’s priority in family law matters has been to improve the family justice system. The detail of the work that has taken place to date is clearly set out in the Government’s report A Brighter Future for Family Justice: a round up of what’s happened since the Family Justice Review, published in August this year. Examples include: the introduction of the Single Family Court in April; a legal requirement for all separating couples to consider mediation before they can go to court over children and financial matters; and the introduction of a 26-week limit for care and supervision cases.

Our work to improve the family justice system continues, with current priorities including the implementation of measures to improve support for separating parents, taking forward the recent recommendations of the mediation task force and continuing to reduce the length of care cases, in line with the new statutory time limit of 26 weeks. Faced with this programme of work, we knew that we could not do justice with the resource available to the complex and far-reaching recommendations made for the reform of the law relating to cohabitants. We therefore announced in September 2011 that we would not take forward the recommendations set out in the 2007 report in this parliamentary term. We further announced in March last year that, due to the continuing priority of these family justice reforms, the recommendations contained within the 2011 report relating to inheritance rights for cohabitants would not be implemented during this Parliament.

This remains the coalition Government’s position and, as the noble Baroness, Lady Thornton, mentioned, that includes the Minister responsible for this area, my right honourable friend Simon Hughes. We do not consider that the matters raised by my noble friend’s Bill and by the Law Commission have yet been properly and fully considered to the extent that they ought to be. We therefore take the view that consideration of the question of rights for cohabitants is properly for the new Parliament. We do not think that taking forward this Bill now, in the limited time that we have in this Parliament, would be the correct approach.

Although we have not reformed the law relating to cohabitants, this does not mean that cohabitants are unable to protect their interests against the legal effect of the ending of their relationship. Cohabitants may, for example, choose the terms on which they jointly own property. This can then provide a basis for distribution on separation or death. Alternatively, cohabitants may create contracts or deeds of trust to make provision for each other. Importantly, cohabitants can also make wills, as my noble friend Lord Marks mentioned, to ensure that their property goes to the person they wish it to go to after their death. We are currently considering what steps we can take to raise awareness of the importance of making a will.

[Lord Lester of Herne Hill]

My noble friend the Minister said that at this stage, the Government think that further work needs to be done. What does he have in mind, given that the Law Commission has given two reports and that the matter was first raised, I think, 12 years ago? We have had all these experts giving their views, including Supreme Court judges. What further work is needed before the Government can reach a conclusion?

[Lord Ashton of Hyde]

We consider that the next Government, whoever they are, should undertake consultation and pre-legislative scrutiny to decide exactly where they want to go forward. We have not made any commitment on this matter. As far as the Bill is concerned, we do not consider that proper consideration has taken place.

It is for those reasons that, while the Government will not oppose the Motion to give the Bill a Second Reading, we have reservations about the changes to the law proposed in the Cohabitation Rights Bill. Accordingly we maintain our position, outlined in 2011 and 2013, not to support the reform of cohabitation law during this Parliament.