Data Protection Bill [HL]

Lord Falconer of Thoroton Excerpts

Monday 14th May 2018 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the amendment. I declare an interest: I understand that Mr John Ford has alleged that 15 years ago he went through my rubbish on a regular basis at the request of the Sunday Times. I find it impossible to believe that anyone would find my rubbish interesting. That has had no effect whatever on my opinions with regard to this issue, and I supported the continuation of Leveson 2 even before I discovered that Mr John Ford had apparently been going through my rubbish.

I am strongly of the view that this House should send the amendment back to the Commons for further consideration, for the following reasons. First, there is no doubt, despite what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, just said, that there was an unequivocal promise by the House of Commons and this House that there would be part 2 of Leveson. I quote the then Prime Minister:

“One of the things that the victims have been most concerned about is that part 2 of the investigation should go ahead … and that is fully our intention”.—[Official Report, Commons, 29/11/12; col. 458.]


That was said by the Prime Minister, Mr David Cameron, after the delivery of part 1. To my mind it is incredibly important that, if you set up a public inquiry, before the public inquiry has been able to reach findings on who was responsible for what happened—probably because of pressure from the people who might be responsible—the second part of that public inquiry is not scrapped. But that is what is happening here. My experience of when the justice system fails is that the victims feel that they have nowhere to go, and that corrodes not just their view of the justice system but a large number of people’s view of it. I particularly have in mind the Hillsborough victims, who were denied justice by a coroner’s system and who felt that the whole justice system let them down.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, says, “Oh, things have changed”. Who is the best judge of that? I suggest it is Sir Brian Leveson, who said 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 examination of the circumstances that allowed that behaviour to”,

take place. He said that when he was consulted on the question of whether part 2 should be scrubbed.

Therefore, I regard the promise as important and the reneging of it as something that will corrode justice. It will affect not only the victims but other people, and I utterly reject the complacency of the noble and listed Lord, Lord Cormack, to the effect that we should not press this any further. Yes, we sent the Bill back with a clause which the Commons took out, but the right thing for this House to do is to ask them to think again, particularly when last time there was a majority of nine. If we debate this well and give the reasons, it is worth doing.

Therefore for me, the first point is the promise. The second point is that the problem is still there. The speech given by the noble Lord, Lord Kerslake, was appalling, not in its quality but in what it told us. The noble Lord, Lord Pannick, suggested that the solution to this was “civil litigation or criminal proceedings”. Can you imagine the people that the noble Lord, Lord Kerslake, described, who have been hounded—his word—by the press, thinking of bringing civil litigation to complain that the first they heard that their loved one had died was when a representative of the press came round? Pull the other one! Get out of the courts and think about what the real world is like.

Then people said that IPSO had made a difference—the IPSO that two weeks ago, in the face of this Bill going through Parliament, in a great rush and with no explanation of why it had not done it before, suddenly introduced a low-cost arbitration scheme. Why did it do it? It did it because Parliament was breathing down its neck. If Leveson 2 is got rid of, let us be under no illusion that that will be the end of that. Things will be just as they have been in the past. I cannot remember which Peer described IPSO as absolutely marvellous. It might have been the noble and learned Lord, Lord Brown of Eaton-under-Heywood. No, I am sorry; it was another noble Lord. So far IPSO has not imposed a single fine; it has not demanded a single equal-prominence front page direction; and it has not launched a single systematic inquiry, as it has the power to do. There have been 8,000 complaints about hate crime so far and only one has been upheld. We should not accept the proposition that IPSO has solved the problem.

The fourth reason it is said that we should not have this inquiry is that, as the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Cavendish of Little Venice, said, it would threaten to chill investigative journalism. However, what is being proposed here is not a specific provision to change the press. It is for a judge of standing to see what should be done next, and I have absolutely no doubt that a new judge would be able to do so, having no doubt heard the evidence from the people the noble Viscount, Lord Colville of Culross, was speaking to on the telephone this morning, and just as Sir Brian Leveson managed to do.

Fifthly, people ask, “What about social media?” Exactly: what about social media? Facebook and so on are a real problem, and that is why the noble Baroness, Lady Hollins, has included social media in her proposed new subsection (3)(d). Sir Brian Leveson wants to have part 2 of the inquiry and it has been amended to deal with the changes. It would be a disgrace and a betrayal of the victims if we did not go ahead with it. I strongly support the amendment.

[Lord Hunt of Wirral (Con)]

My Lords, first, I declare former interests as the last chair of the Press Complaints Commission between 2011 and 2014, and then as the first chair of the new Independent Press Standards Organisation, IPSO, together with my other interests as set out in the register.

As the Secretary of State said in his Statement of 1 March this year, repeated here, we all owe a great debt of gratitude to Sir Brian Leveson. His inquiry and subsequent report showed rigour, diligence and a judicious balance between competing interests. When his report was published in December 2012, Lord Justice Leveson recommended a new, tougher form of voluntary self-regulation of the press. As chair of the PCC at the time, I welcomed his proposals and suggested that they should be implemented in full.

The Leveson proposals were largely implemented between 2012 and 2014, but I was not able, at that stage, to persuade the newspaper industry to embrace them in their entirety. Since then, under my successor, Sir Alan Moses, the new arrangements have bedded down and IPSO has gradually become more and more compliant with the Leveson recommendations.

I strongly welcome the introduction of the new arbitration scheme, which was introduced not in a rush, as the noble and learned Lord has just said, but after extensive consultation, and it is a major step forward. I say to a number of other speakers that illegal activity, as distinct from breaches of the editors’ code, is best dealt with by the police and the courts, and that has now largely happened—belatedly, yes, but also comprehensively.

Meanwhile, the printed press continues to decline and the increasingly dominant online media raise all sorts of questions that should trouble us as legislators and as a society. Where is trustworthy news to be found in this brave new world? How is the kind of journalist we all want to see—fearless and bold, driven by a desire to uncover the truth and serve the public good—to be identified, trained and employed on salaries that will pay their bills? How are we to sieve out the fake news from the genuine, the corrupted from the pure, and the worth while from the frivolous and irresponsible? I just do not believe that the kind of inquiry adumbrated in Amendment 62B would address any of those pressing questions, which are so vital to the future well-being of our society.

[Lord Falconer of Thoroton]

The amendment includes the words,

“to investigate the dissemination of information and news, including false news stories”.

It would have said “fake news” but the draftspeople said that that would not be the right way to term it. Therefore, I think it covers the sorts of things that the noble Lord thinks it should, or am I wrong?

[Lord Hunt of Wirral]

I raise fake news as an issue not because it is or is not covered by the amendment but because it must concern us all, particularly as a society.

There are good reasons for rejecting the amendment. It would be an analogue inquiry in an overwhelmingly digital age. It would also—rightly, in my view—be seen as yet another attempt by politicians to meddle in the internal affairs of news media and, ultimately, to muzzle free expression.

This country, which should be a beacon of free expression in a world bedevilled by state censorship, has just fallen from 30th to 40th in the global ranking for free speech, according to a survey conducted by independent minds right across the world. Let that sink in my lords: from 30th to 40th. It is shaming. What message are we now to send out? That the free media are enemies of the state? They may be unruly and they may challenge us in ways that make us uncomfortable, but they are not our enemies.

Furthermore, it concerns me that we are playing around with the Salisbury convention. The noble and learned Lord has just spoken about promises. As the noble Lord, Lord Pannick, pointed out, this amendment flies directly in the face of last year’s Conservative Party manifesto. On page 80, that document said that,

“we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press”.

That was pretty clear. I know that the Labour Party had a euphoric moment after the last general election, almost persuading itself that it had won, but it did not.

I take no comfort from the qualifying words that the noble Baroness has added to her amendment this time around. We are dealing here with profound matters that touch on the very basis of our society and our political philosophy, and the question of whether we truly cherish our freedom of expression and our free media. I suppose ping-pong can be an enjoyable pastime but at some point the views of the elected House must prevail. I have the utmost respect for the noble Baroness and the greatest sympathy for the unacceptable treatment that she and her family, and far too many others, have received from the press. Having said that, I sincerely hope she will not seek to divide the House again on this matter.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I thank the noble Baroness, Lady Hollins, for setting out the thinking behind her Amendments 62A and 62B. As we have heard, they seek to insert an amended version of Clause 142 into the Bill, in contrast to the Commons amendments, which would remove it. I have already set out the Government’s reasons for opposing the inclusion of Clause 142 in this Bill, and I regret to say that the modest changes proposed by Amendments 62A and 62B do not change that analysis. In particular, nothing in the amendments answers the fundamental challenge that creating a further public inquiry is neither necessary nor proportionate at this point in time.

I remind noble Lords that it was this present Government, following a public consultation and in implementing a manifesto commitment, who took the present step, which was approved in the other place. My noble friend Lord Cormack alluded to the fact that the other place had already addressed this issue. The noble and learned Lord, Lord Falconer, came back with an accusation directed against my noble friend Lord Cormack of complacency. I have seen my noble friend accused of many things, but complacency is certainly not one of them. I regard that accusation as utterly misplaced and inappropriate.

Indeed, I take issue with some of the other factual assertions made by the noble and learned Lord, Lord Falconer, in particular his assertion that no front-page apology had appeared in any IPSO publication since it was founded. I think he will find that may be borne out upon a reading of the Times in the recent past.

[Lord Falconer of Thoroton]

My statement was that no front-page apology of equal prominence has been made mandated. Am I wrong about that?

[Lord Keen of Elie]

I do not believe that the noble and learned Lord chose his words very carefully previously. As I understand it, IPSO did mandate a front-page apology in the Times.

Data Protection Bill [HL]

Lord Falconer of Thoroton Excerpts

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I came intending to support the amendment of the noble Baroness, Lady Hollins, asking in effect for Leveson 2, and the amendment of the noble Earl, Lord Attlee, in effect introducing Section 40 for data protection. The more I have listened to the debate, the more I am absolutely convinced that both those amendments are correct.

I have found it appalling to listen to the smug reassurances of the apologists for the media that everything is now fine as far as data protection is concerned. The noble Baroness, Lady Hollins, drew our attention to the experience of the Bowles family when their son was killed in an accident. While Leveson 1 was going on—the latest moment at which it was alleged that the media had reformed—they were breaking the Bowles family’s data protection rights, to publish whatever they liked.

I do not know the extent to which the media were tricking or are continuing to trick people into giving out medical records, banking information and private photographs, or taking photographs from sources they should not, or going to the police and getting information from them. I am pretty sure that it is still going on, but I do not know the extent of it. The thing that will reveal the extent of it and the extent to which media owners are involved would be Leveson 2. That is what we as politicians promised at the time. The assertion, made in particular by the noble Lords, Lord Pannick and Lord Black, and the noble Viscount, Lord Hailsham, that we should just stop now because everything in the garden is rosy flies absolutely in the face of the evidence. We would look like politicians who are continuing to collude with the media.

[Viscount Hailsham]

The point is not that everything is right. We accept that it is not, but the facts are already known. What now needs to happen is that the policy needs to be formulated and brought to Parliament. An inquiry would postpone the day when that could happen.

[Lord Falconer of Thoroton]

I disagree with what the noble Viscount, Lord Hailsham, says—namely, that the facts are already known—because the apologists are saying that everything is okay now; I do not include him as an apologist because he has a slightly different position. I point to the case of the Bowles family, which indicates that things were not okay when the first Leveson inquiry was going on. The basis on which it has been asserted by the noble Lords, Lord Pannick and Lord Black, along with others, that we should not go ahead is because everything is okay. Well, it is not.

[Lord Lester of Herne Hill]

I just to make something quite clear. I hope that the noble and learned Lord is not suggesting that I am saying that everything is fine.

[Lord Falconer of Thoroton]

This is the crux of the position. Now that it seems to be accepted that things are not okay, if that is the case, what is required is an inquiry. As I understand what is being asserted, a change is proposed in the form of Section 40 and there are those who say that we should not make a change. I think that it is important not to be taken in by the siren song that everything is okay.

It is important that there should be a second inquiry. We promised it and we should not break that promise. I also think it would be wrong to suggest that Sir Brian Leveson is against a second inquiry. I do not know what his position is, but we should not assume that he is either in favour or against it; his views need to be canvassed. I strongly support the amendment tabled by the noble Baroness, Lady Hollins.

[Lord Pannick]

I am not suggesting that breaches do not occur; I am not an apologist. My position is that if and when errors are made and wrongful acts occur, the law has ample means of dealing with them. We do not set up a massive public inquiry in areas of the law or practice whenever there is a risk that wrongful acts are going to take place. My position is that we have inquired sufficiently into these matters, and to the extent that there are still wrongful things going on, the law provides perfectly adequate remedies, and indeed under this Act there will be perfectly adequate administrative procedures.

[Lord Falconer of Thoroton]

I have two comments to make in response. First, the Leveson 2 inquiry was promised. As I understand the position of the noble Lord, Lord Pannick, now, he is saying that maybe wrongdoing is going on and it is the same as was expected before, but promising Leveson 2 was a mistake. Secondly and separately, Sir Brian Leveson found in his report that the remedies of the law, the remedies to which he referred, were open only to the wealthy. That is what he found as a provision. Therefore, the suggestion that the law provides an adequate remedy before the recommendations made by Sir Brian Leveson is, in my view, wrong. I pray in aid of that the conclusions that Sir Brian Leveson made after a full inquiry.

I turn now to the amendments tabled by the noble Earl, Lord Attlee. I strongly support them and I think that they are entirely appropriate for this Data Protection Bill because they deal with those who abuse data protection. Why should people not have protection in relation to this? I strongly disagree with the suggestion of the noble and learned Lord, Lord Brown, that this goes further than Leveson. It does not, because what Leveson said was that if a newspaper can join a body which could provide a cheap way of dealing with it and it does not, it should be liable to pay the costs unless there is good reason not to. That is precisely what the amendment does, and I say that with some added experience in relation to this. I was involved at the time when Section 40 was being drafted. It was in effect an agreed draft between the Government and their lawyers, with Mr Oliver Letwin representing the Government along with the full majesty of the Treasury Solicitor advising him. We were trying to agree an amendment that gave effect to Section 40. It was passed almost unanimously by the House of Commons and it was passed in this House as well. The suggestion that it goes further than what Leveson proposed is wrong, so I strongly support it.

Having had the benefit of all of those lawyers from the Government at the time, I also strongly disagree with the assertion by the noble Lords, Lord Pannick and Lord Lester, that this would be in breach of the Human Rights Act. It most certainly would not, and I am encouraged in that by what was said by my noble friend Lady Kennedy of The Shaws. Please do not listen to the siren song of the media. Give people the protection that everyone thought they were entitled to. It does not infringe on a free press; it simply makes sure that people like the parents of the victims of the Soham murderer do not have their data mined when there could not be any possible justification for it.

[Baroness Butler-Sloss (CB)]

My Lords, I was not going to speak, but I feel impelled to do so. I have no time for the media. I have been libelled and I disliked the experience a great deal. But what we are being asked to provide is a remedy. They are saying that the current remedies will not do and that the remedy is an inquiry. As a judge, I have chaired a number of inquiries, and there are other former judges in this House who have done so. They are inevitably long-winded. This one would go on for a very long time, so I would ask this question: what sort of remedy would there be at the end if the inquiry is mired in a huge number of lawyers making a great deal of money out of defending all sorts of groups of people? At the end of the day we would get—what?—a report.