Social Media

Lord McNally Excerpts

Thursday 11th July 2019 Lords Chamber

[Lord McNally (LD)]

My Lords, I have never tweeted—it is far too dangerous—but I know what the noble Baroness is talking about. My declaration is that I am a resident of St Albans. I am not an Anglican, but I and all the citizens of St Albans enjoy the benefits of our wonderful abbey, and the ecumenical approach of Bishop Alan and our dean, Jeffrey John, to making that abbey available to all faiths and none with a wonderful programme of outreach.

I very much welcomed the launch of these social media community guidelines by the Church of England, and the digital charter. If I may tread on the right reverend Prelate’s territory, reading it, I did not think it was original. It could be summed up as telling us that when using social media, “Do unto others as you would have them do unto you”. I was talking to a fellow Peer involved in this, who was rather depressed that such good intentions were all too late. The trolls, the bullies, the paedophiles, the groomers, the fantasists, the conspiracy peddlers and the political extremists of all shades have already polluted the waters and debased the standards of what was originally a magnificent, free good. I agree with the noble Baroness, Lady Chisholm, that there is a need for us to stand up for free speech and the rights of individuals affected by that kind of behaviour.

I do not believe that the internet is beyond regulation or the rule of law. I also agree with the noble Baroness that nor is it a one-way street. I have mentioned how impressed I was when, answering a Question about young people’s mental health, the Minister pointed out that, yes, trolling, abusing and bullying was causing young people great stress, but often it was on the internet that they found the solution or the way forward in their distress, so it not a one-way street. I welcome the Government’s attempts to achieve cross-party agreement on internet regulation: how much should be statutory and how much voluntary, who should be the regulators and what powers should they have?

As the Minister knows, I believe that many of these matters could be dealt with by a pre-legislative scrutiny committee of both Houses, but there are issues that need urgent “this day” action, and could and should be dealt with now, in advance of the main legislation. I hope that the noble Baroness, Lady Kidron, and my noble friend Lady Grender will address these later in the debate. In the meantime, Ofcom, the Information Commissioner’s Office and the Electoral Commission should be charged with doing the groundwork for the regulator that this legislation will create. All three bodies have proved robust but, in the case of the Electoral Commission, underpowered.

Again, I chime with the noble Baroness, Lady Chisholm, in saying that Ofcom should promote digital literacy as a fourth pillar of education, alongside reading, writing and maths. As the line between print and online becomes increasingly blurred, the big internet companies—the FANGs—should see Impress as a possible independent regulator. The GDPR has shown that it is possible to achieve international standards. We should aim for a kind of Geneva convention against internet harm. We must also beware of slippage. The Government have shown good intentions, but we are two weeks away from a new Administration. The FANGs are powerful lobbyists. We will see where their priorities lie if we attempt to bring in regulation that really works.

Let me end with a quote from the noble Lord, Lord Puttnam, on whose committee I served in 2003, before the Communications Bill. We decided not to try regulating the internet as it came upon us, but the noble Lord said in his evidence:

“Our citizens can only be protected from online harm if the political system upon which society rests is itself rigorously safeguarded”.


That is why this call to arms we are involved in makes the Church’s document so timely. I am grateful to the right reverend Prelate for providing the opportunity to discuss these matters today.

Regulating in a Digital World (Communications Committee Report)

Lord McNally Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord McNally (LD)]

My Lords, the noble Lord, Lord Vaux, need not apologise. This is one of the few assemblies in the world where one would get as deep and thorough an analysis of the subject from one of its Members. I still remember the American Senate talking to Mark Zuckerberg and the chasm of understanding between the legislators and the techie was cruel to behold. So stay with us.

I want to refer to a comment by the noble Lord, Lord Inglewood. He talked about his chairmanship of the Communications Committee. I have never served on that committee or been its chairman, but for nine years I was leader of the Liberal Democrats here in the Lords and in that capacity I was on all the committees that looked at the structures of committees, et cetera. I can say that during that time there were one or two very severe attempts to get rid of the Communications Committee, usually by offering even more interesting things to members. It was something I seriously resisted, because I believe that its ambit covers such an important future agenda that it is important that it continue as a permanent committee of this House. Its importance is underlined by the report before us tonight and I congratulate the noble Lord, Lord Gilbert, both on the way he introduced it and on the way he herded the cats on the committee, as we were told. He had my noble friends Lady Benjamin and Lady Bonham-Carter as members, so I know exactly what he was talking about.

The committee has already had its impact: the Government have acknowledged that their online harms White Paper was influenced by some of the committee’s recommendations. Some 16 years ago I served on the Puttnam committee, the pre-legislative scrutiny committee for what became the Communications Act 2004. That Act created Ofcom, which has developed into a feared and respected regulator with public interest responsibilities. That committee took the conscious decision 16 years ago not to look into the idea of regulating the internet. The world wide web was seen as a free good and a boon to mankind. Ten years later, in addition to that libertarian approach, was the argument that the internet titans, the likes of Facebook, Amazon, Netflix and Google, were now so global and powerful as to be beyond the reach of any national jurisdiction—what I would describe as the Maxton approach.

Now the public mood has changed. As the noble Lord, Lord Gordon, said, that sense of wonder and awe has worn thin. In the United States, in Europe and here in the United Kingdom there is now a feeling that we have got to come to grips with the power of the internet. The chair of this committee, the noble Lord, Lord Gilbert, when launching this report said:

“A comprehensive new approach to regulation is needed to address the diverse range of challenges that the internet presents”.


Tonight, he called for urgent and compelling action. Tim Berners-Lee, the father of the world wide web, has said:

“While the web has created opportunity, given marginalised groups a voice, and made our daily lives easier, it has also created opportunity for scammers, given a voice to those who spread hatred, and made all kinds of crime easier to commit”.


The noble Baroness, Lady Kidron, quoted Mark Zuckerberg and other tech leaders as saying that they would now welcome some regulation, but I give a warning: do not underestimate the power of the lobbyists. The so-called FANGs have immense resources. I saw in the New York Times this week that even the Senate was backing off from too urgent action against them. In some ways, the story of the National Rifle Association should always be kept in mind if you are really challenging vested interests in a big way and, boy, that is what we are proposing to do.

The great debate is now about how and when we regulate. Both the committee report and the Government’s White Paper, along with many contributions to today’s debate, listed the harms and abuses that the internet has spawned—although I acknowledge along with the noble Lord, Lord Maxton, the many benefits that the internet has spawned as well. A few weeks ago the Health Minister was answering questions about the mental health damage to young people on the internet. She made the point in response, which I thought was very valid, “Yes, but also on the internet is found some of the help and advice that young people were often searching for, which they would not be able to find as easily elsewhere”.

We are talking about a balance, but the grooming and abuse of vulnerable groups, particularly children, is nevertheless one of the key things, and I pay tribute to the campaign that the noble Baroness, Lady Kidron, has led on this. As far as the kids’ code is concerned, all I can say is that we will be with her every step of the way, so she should keep going. There is of course use by terrorists, organised crime and, indeed, state agencies. There are also the undermining of democratic processes and the promotion of hate language towards race, sexual orientation and mental or physical handicap. The noble Viscount, Lord Colville, mentioned other health and social consequences, particularly with gaming addiction. The examples go on and on, and such a charge list creates a public and political demand that something must be done. The White Paper captures this sense of urgency when it says that things,

“have not gone far or fast enough”.

Our task is made easier by the committee’s recommendation of 10 principles to guide the development of regulation online. On the other hand, the recommendation that a new digital authority be created sets alarm bells ringing at the idea of yet another regulator in this sphere. We need to think carefully about what is needed. Such an authority will need a certain heft and clout to gain the respect of some pretty big beasts.

I remember that when the Puttnam committee was discussing the establishment of Ofcom we were told that Murdoch’s lawyers would eat this new regulator for breakfast. Well, it was not so. Now, 15 years on, we have reached a stage where “give it to Ofcom” seems to be the answer to every problem. That may be the answer, but let us weigh up the options. Whatever becomes this digital regulator will have to work closely with the ICO, the CMA and other bodies such as the Centre for Data Ethics and Innovation, as well as self-regulators such as the ASA and trade bodies such as the Internet Association. But Parliament will then have to decide where the buck stops and who makes the key decisions.

There will also need to be early work on data literacy. Here I agree with the noble Lord, Lord Maxton, that the long-delayed recommendation of the Puttnam committee for a clear policy of data literacy education is important, parallel with these developments. In addition, the CMA and the DCMS are going to need extra resources to take on their new responsibilities. I hope that I am not treading on too many toes in Whitehall if I say that there will be greater public confidence as we move forward if the DCMS is seen as the lead department, although of course the Home Office has a clear role in criminal, terrorism and intelligence matters.

I disagree with the statement that the DCMS cannot be the poacher and gamekeeper. The digital authority will have to have a parent department, but Parliament will need to be able to look at some detailed and specific proposals if we are to avoid a plethora of codes and regulators and a balkanisation of the system, a warning made by the noble Baroness, Lady Harding. I thought at one point that she was going to suggest that the whole lot be given to the Home Office, but she steered away from that nightmare. That is why it is not nostalgic for me to urge that, before we move to specific legislation, a draft Bill is submitted to a joint pre-legislative scrutiny committee of both Houses. The great benefit of the Puttnam committee process was its transparency and its open door to allow all interest groups to have their day in court. The outcome was a piece of legislation which was better and more robust because of that pre-legislative scrutiny. I am very interested to see that growing into a permanent Joint Committee of both Houses.

The noble Baroness, Lady McIntosh, mentioned democracy. One of the criticisms of the White Paper and the report is that they did not deal with the threat to our democracy posed by internet abuse. I am delighted to see on today’s Order Paper that a Committee of this House has been established to report on democracy and digital technologies. I was even more delighted when I saw that the noble Lord, Lord Puttnam, had been appointed chairman. I hope the Minister will assure us of his department’s full co-operation with the work of that committee.

My final appeal is that we remain major players in international discussions on these matters. Between 2010 and 2013, I was the Minister involved in the early stages of GDPR negotiations. The GDPR may have its weaknesses, but it is an example of how international agreements can be reached on these matters. In the ICO and its commissioner, we have a real asset to be deployed in seeking international co-operation. I agree with the noble Lord, Lord Inglewood: I see no reason why we should not have the ambition to create a kind of Geneva convention on rules of behaviour for the world wide web.

Nor for the first time, the Communications Committee has produced a report which brings credit to this House and positive and useful advice to the Government, while providing clear advice for the next steps for all of us in this complex and fast-moving world. In that respect, we are all in its debt.

Online Harms White Paper

Lord McNally Excerpts

Tuesday 30th April 2019 Lords Chamber

[Lord McNally (LD)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Griffiths of Burry Port, and I certainly want to follow the spirit of his intervention. Last Thursday, we had something of a dress rehearsal for this debate when we discussed the Communications Committee report UK Advertising in a Digital Age.

In the course of that debate the right reverend Prelate the Bishop of Durham quoted his son saying:

“Dad, you haven’t a clue … I have been raised in this digital world. I am inside it, day in and day out. You just don’t get it and your generation will struggle to”.—[Official Report, 25/4/19; col. 725.]


I was particularly sensitive to those comments because I suspect that my own children, all in their 20s, have a similar view of my capabilities. I am happy that my noble friends Lady Grender, Lady Benjamin and Lord Storey, all more savvy in this area than I am, will follow.

The truth is that the gap in comprehension between legislators and practitioners was there for all to see when the CEO of Facebook, Mark Zuckerberg, appeared before a Senate committee. The question out there is whether the Government and Parliament—as the noble Lord, Lord Griffiths, has just indicated—are flexible and nimble enough to address genuine public concerns and stay ahead of the curve as some of these technologies develop at breakneck speed. Perhaps it is a job for the Youth Parliament rather than this one. As I said last Thursday, many of our procedures and conventions have their roots in the 18th century not the 21st. In approaching this, therefore, we have to look not only at the legislation but at how we consult and involve people in introducing steps as we go forward.

As the Minister has said, there has been a general welcome for the direction of travel proposed by the White Paper. There are harms which need to be addressed, as demonstrated by the list referred to by the noble Lord, Lord Griffiths, and as explained to us by the noble Baroness, Lady Blackwood, in the Statement that preceded this discussion.

It is true that the White Paper is not without its critics. Last week, in evidence to a DCMS sub-committee, the Information Commissioner, Elizabeth Denham, expressed surprise and disappointment that the White Paper had not,

“done a comprehensive examination of political advertising and oversight that’s needed in this space”,

and the Electoral Commission has called for a range of measures to strengthen its oversight and promote transparency in digital campaigning. The Alliance for Intellectual Property caught some of the points made by the Minister and the noble Lord, Lord Griffiths, about the effect on business. It said:

“The paper fails to address the harmful activity that affects businesses, in terms of revenue generation, investment and creative innovation”.


Another group, Defend Digital Me, warns against giving the Home Office carte blanche to regulate the internet, saying that children must not be the excuse that is talked up into a reason enabling greater control of the internet by the Home Office. It expresses particular concern about paragraph 21 of the White Paper.

There are real and present dangers out there to be addressed, but also concerns that ill thought-out measures could undermine some of the real benefits that the internet has brought us. The challenge is to produce an internet that is open and vibrant, yet also protects its users from harm. The days are long gone when public opinion was content to see the internet as a kind of Wild West beyond the rule of law. We have now reached a situation where Mark Zuckerberg of Facebook said:

“If the rules for the internet were being written from scratch today, I don’t think people would want private companies to be making … decisions around speech, elections and data privacy without a more … democratic process”.


Quite so.

Nor are we starting from an entirely blank sheet of paper. In the Information Commissioner, we have someone with authority and respect both at home and abroad. We have an Electoral Commission that will need extra resources and new powers to protect our democracy from abuse carried out using new technologies. Ofcom, a creation of the Communications Act 2003, has proved a highly successful and respected regulator. We also have good examples of international co-operation in the field. The EU general data protection regulation is now embedded in the Data Protection Act 2018 and is a good example of addressing online harms via international co-operation. I understand that the GDPR is now being looked at by a number of other jurisdictions, which are using it as a template for their own legislation. Taking up the point that the Minister made in his opening remarks, I see no reason why we should not aspire to global conventions which the whole world can adopt.

In so doing, we must be aware that elsewhere in the world, authoritarian Governments are attempting to insulate themselves from transparency and accountability by trying to curb and shackle the internet, precisely because of its ability to shine light into dark corners. Of course we want to see the freedom of the press upheld. I think the technology is taking us into difficult areas here. There is an overlap between print media organisations and their online publications, and there are questions about where the various jurisdictions apply. Before those organisations get too indignant, it is interesting to note that the worst offender following the Christchurch tragedy was Mail Online, which continued to carry a video of the tragedy, and the manifesto behind it, long after Facebook had taken them down.

The White Paper paints a very broad canvas and, as I have cited, critics call for more action and greater safeguards. I just wonder whether draft legislation would not benefit from pre-legislative scrutiny along the lines of the Puttnam committee, which examined the Communications Bill in 2002 and on which I served. I am delighted to see the noble Lord, Lord Puttnam, in his place. That committee held hearings in public and on the air. As a Joint Committee, it was able to draw on strengths and experiences from both Houses.

By the end of the process, we will have a suite of powerful regulators overseeing these matters: the new super-regulator envisaged by the White Paper, the ICO, Ofcom, a better resourced and empowered Electoral Commission and a revitalised CMA. But how will they work together? Who will report to whom? Will some take responsibilities already held by other regulators? There is a lot of thinking to be done. In the Statement the noble Baroness, Lady Blackwood, spoke about a need for coherence in the way government approaches this. I wonder how interdepartmental co-operation will be achieved. Will there be a special Cabinet committee on this? How will that coherence across Whitehall be achieved?

Parliament, too, will have to give careful thought to how best it links in with this new regulatory framework, either by creating a Standing Committee of both Houses or perhaps by creating an advisory committee akin to the Bank of England’s Monetary Policy Committee, consisting of those best qualified to give advice on new developments in technology which would allow government and Parliament to future-proof as best we can, while keeping oversight of the new technologies within democratic control.

I hope this does not do too much damage to the reputation of the Secretary of State for DCMS, but I worked with him for a couple of years in the coalition Government. I have always admired his lawyerly calm. This will be much needed as we move ahead in this area. There will be great pressure on us to do something quickly. There is obviously a need to bring forward statutory regulation and there will be a need for education and training, to which some of my colleagues will refer. As well as the need to move quickly, there is also a need to get it right. Perhaps in helping to achieve that end, this House might yet prove its usefulness to my children and to the son of the right reverend Prelate the Bishop of Durham.

National Lottery Heritage Fund Grants: Conservation Management Plans

Lord McNally Excerpts

Wednesday 24th April 2019 Lords Chamber

[Lord Ashton of Hyde]

The Government have not been in touch with the 1,300 grantees but, as I said, the fund is producing a list of the 500 to 600 for which conservation management plans might have been produced. It will be able to ask those copyright holders whether they are interested in doing that.

[Lord McNally (LD)]

My Lords, it is clear that something terrible happened, but surely the way to make sure that it does not happen again is to give the National Archives absolute responsibility, whereby any holder of archives should consult it before contemplating any destruction or removal.

[Lord Ashton of Hyde]

I am sorry but I do not agree with the noble Lord that something terrible has happened. The National Lottery Heritage Fund has no remit to retain records. It is not an archive; it is there to promote heritage, and it is able to spend on heritage the £150,000 a year that is saved. First, as I said, the originals remain with the grantees. Secondly, the fund took legal advice and, even if it had retained them, it would not have been able to make them available. Therefore, there was no point spending £150,000 a year on retaining the documents when they were not the originals and the originals were available elsewhere.

Public Service Broadcasters

Lord McNally Excerpts

Thursday 28th March 2019 Lords Chamber

[Lord Ashton of Hyde]

The noble Lord is right that there has already been a lot of collaboration. Collaboration exists between Netflix and other subscription video on demand services and the public service broadcasters. That will continue and is being encouraged. Illegal boxes are illegal. They will be prosecuted within the law because they take away the benefits that public service broadcasting brings to ordinary citizens and consumers in this country.

[Lord McNally (LD)]

My Lords, one protection for public service broadcasters in the 2003 Act was prominence in the listings, yet now both the FANGs that have been described and the manufacturers are calculatingly getting around the listings to shunt public service broadcasting into the sidings. It will need from the Government and the regulator more than passive observation. Active action will be needed if the PSBs are to be protected.

[Lord Ashton of Hyde]

I agree with that. That is why we promised to legislate when Ofcom gives us its recommendations for the online prominence regime. If it needs legislation, the Secretary of State says that we will do that.

Festival of Great Britain and Northern Ireland in 2022

Lord McNally Excerpts

Monday 18th March 2019 Lords Chamber

[Lord Ashton of Hyde]

I do not know why that title was selected but it seems to explain exactly what the festival is all about.

[Lord McNally (LD)]

My Lords, is this new festival an opportunity to establish a museum of Brexit, where the record of this Government can be preserved for future generations? Would not the advantage be that there is already a perfect location in the Chamber of Horrors?

[Lord Ashton of Hyde]

I imagine that the noble Lord wants it to be publicly funded, but I do not think that that is necessarily what the public want.

Data Protection (Charges and Information) (Amendment) Regulations 2019

Lord McNally Excerpts

Monday 18th February 2019 Lords Chamber

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

My Lords, I declare an interest which every Member of this House who speaks will have to declare so perhaps I can save them the bother. I will benefit from the fact that I will not have to pay the £40 charge if the regulations are approved. Secondly, my wife is a parish councillor and will also benefit.

The original regulations were debated and approved in this House on 20 March 2018. Noble Lords may recall that those regulations introduced a new charging structure to fund the Information Commissioner’s Office. The authority for doing so derived at the time from the Digital Economy Act 2017, now superseded by the powers set out in Section 137 of the Data Protection Act 2018. As we promised during those debates, we are now looking to implement a new exemption from the annual data protection charge for elected representatives, candidates for election and Members of the House of Lords for processing that they undertake in the course of fulfilling their democratic duties.

The new data protection framework is about protecting personal data—that is, information that can identify individuals. Some of us in this House will be data controllers—we may hold personal data—and are responsible for how that information is processed. There may be a number of reasons why we hold that personal data—for example, we may have been entrusted with it by members of the public for particular aspects of parliamentary work—but, as data controllers, we have various obligations under the Data Protection Act, including how we look after that information.

While we have previously debated the importance of having an adequately funded regulator, there will be some situations where it would be unreasonable for some data controllers to pay the charge or where the charge would give rise to unintended negative consequences. For that reason, Schedule 1 to the funding regulations details a number of exemptions to the payment of the charge. For example, any data controller who processes personal data only for staff administration purposes, or purely for advertising, marketing and public relations reasons, is not required to pay.

During the parliamentary debate of the original funding regulations on 20 March last year, the Government undertook to review these exemptions. A public consultation took place last summer and has been available online since June 2018. The consultation sought views on whether each of the exemptions was still appropriate; a proposed new exemption for elected representatives, prospective candidates for election and Members of the House of Lords; and whether any other new exemptions should be introduced. Respondents were broadly supportive of the current exemptions regime. However, there was also support for one new exemption for elected representatives, candidates, including prospective candidates for election, and Members of the House of Lords.

The Government’s view is that activity deriving from elected representatives’ public offices and functions should not be liable to a charge. Charges of this nature potentially represent a perceived or actual barrier to democratic engagement. A number of respondents supported this view. In light of this support, we have decided to take this amendment forward for implementation, so I now come to the details of the instrument.

The amendment introduces an exemption for: Members of the House of Lords who are entitled to receive a Writ of Summons to attend this House specifically for the purposes of related functions; elected representatives, as defined in paragraph 23(3) of Schedule 1 to the Data Protection Act 2018 in connection with the discharge of their respective functions; and relevant processing undertaken by candidates, prospective and nominated, seeking to become elected representatives. These exemptions cover those who are acting on instructions or on behalf of such Members and elected or prospective representatives. Importantly, that is not to say that all processing of data conducted by those listed in the amendment, including all Members of this House, is automatically exempt from paying a charge. The instrument makes it clear that the exemption relates solely to processing carried out by these parties in connection with their democratic functions.

In the case of prospective candidates, the exemption would apply only to processing in connection with those activities related to election or re-election in a post. It is important to extend the exemption to anyone seeking to become an elected representative, not just to nominated candidates. This is because formal nomination, the stage at which candidates are defined in electoral legislation, occurs only in the immediate lead-up to an election. Activity to support re-election is likely to predate this stage. Excluding prospective candidates from this exemption would place them at a financial disadvantage compared with their incumbent counterparts. We have restricted the application of the exemption to data processing associated with the functions of our respective roles. This provides a safeguard against misuse, for example by individuals falsely claiming to be prospective candidates.

I want to be clear that the exemption relates only to the payment of the annual data protection charge. It is not an exemption from data controllers’ important data protection responsibilities. Anyone who does not adhere to those responsibilities and principles will face enforcement action by the ICO.

I hope noble Lords will agree that this amendment is important to encourage wider participation in the democratic engagement process. The removal of a requirement to pay the annual data protection charge to the ICO will ensure that all prospective candidates will start their electoral campaigns on a footing equal to that of elected representatives already in post. It also reflects the high regard the Government place upon those undertaking public functions. I beg to move.

[Lord McNally (LD)]

My Lords, we welcome this statutory instrument and the exemptions provided for. Like the Minister and, I think, everybody in this House, we do not want a tax on democracy, but people should be assured that the legal responsibilities remain the same and can be quite onerous. The Minister’s last remark was that we must not allow people to use the candidate or even the MP or Peer as cover for activities that would be outside the narrow exemption of this House.

This reminds me of debates we had some 20 or even 30 years ago—in the early 1990s—when we brought in legislation about the financing of political parties. I remember that those of us who had experience of working for political parties were very conscious that they are all made up of volunteers, often amateurs. There was a danger in that legislation—and I think there still is—of putting on to enthusiastic volunteer amateurs, who make our democracy work, very onerous financial responsibilities in terms of election spending and, in this case, very onerous data protection responsibilities. There might be a case for giving political parties some funding for advice, training and support to make sure that these responsibilities are understood and work well.

What the Minister has had to say is very welcome, and we are all involved in this, but it appears that the initial advice was a little confusing and caused concern. Once these regulations are approved, as I am sure they will be, I wonder whether the House authorities can issue some clear and definitive advice that will be of benefit to Members of this House. We look forward to this SI being passed.

Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019

Lord McNally Excerpts

Monday 18th February 2019 Lords Chamber

[Lord Ashton of Hyde]

If they fulfil those conditions that I mentioned, the answer is yes.

I would like to touch on what our exit from the EU might mean for the applied GDPR, as provided for by Chapter 3 of Part 2 of the Data Protection Act 2018. Noble Lords will recall that we created a separate regime which provides for broadly equivalent standards to the GDPR to apply to processing activities that are outside the scope of EU law and covered by neither Part 3 nor 4 of the Act, which deal with processing by law enforcement and intelligence services respectively. This regime currently applies, for example, where a controller other than the intelligence services is processing for national security or defence purposes.

As the EU GDPR will not, as a matter of domestic law, apply directly to any general processing activities when we leave the EU, these regulations are intended to simplify matters by providing for a single regime for all general processing activities. Those provisions in the 2018 Act that provide for the applied GDPR, together with other references to the applied GDPR in legislation, are removed. Importantly, the provisions in the applied GDPR which currently provide exemptions from specified provisions where these are required for the purposes of safeguarding national security or for defence purposes have been retained in the merged regime. These exemptions balance the need to protect personal data against ensuring that the UK’s security and intelligence community can continue to carry out its vital work to safeguard national security. I should emphasise that the merger does not itself alter the purview of EU law so where aspects of domestic data protection law were outside EU competence before exit day, this will not change as a result of this instrument. We have included provisions in the regulations to make that point clear.

I believe that the approach the Government are taking is an appropriate way of addressing the deficiencies in domestic data protection laws resulting from the UK leaving the EU. The aim of these regulations is to ensure continuity for data subjects, controllers and processors by maintaining the same data protection standards that currently exist under the GDPR and the Data Protection Act 2018.

My remarks have focused on the changes made to the GDPR and the Data Protection Act because they are the most significant. For completeness, I should add that the regulations make a number of minor amendments to other legislation, consequential on the amendments we are making to the UK GDPR and Data Protection Act 2018. For example, they amend references to the “GDPR” in other legislation to refer to the “UK GDPR”.

They also address a small number of non-exit-related issues. They clarify that the GDPR definition of consent applies for the purposes of the Privacy and Electronic Communications (EC Directive) Regulations 2003, and address two minor drafting issues that were identified in Schedule 19 to the Data Protection Act 2018, shortly before it received Royal Assent. I commend these regulations to the House

[Lord McNally (LD)]

My Lords, I am not sure the Minister is going to have quite the easy ride he had with the first statutory instrument. My eye was caught by a very detailed briefing by the law firm Fieldfisher on the consequences of this SI. It was the final paragraph that caught my eye. It says:

“From a broader perspective, the creation of a new data protection regime in the UK may present additional complexities for controllers and processors who are caught by both European and UK law and will therefore need to comply with both the GDPR and (in relation to UK customer data) something that looks like the GDPR but which may start to move away from it as time goes on”.


Those last words are ominous. There is no doubt that the GDPR was a great success for European co-operation. The noble Baroness, Lady O’Neill, reminded us earlier of the wide range of issues that we will have to take into account in protecting our democracy from data abuses. There are similar dangers in the protection of our commercial and business life. The value of the GDPR is that it gives us a strength of certainty of European legislation.

I will delay the House a little with a reminiscence. Between 2010 and 2013 I was the Minister at the Ministry of Justice responsible for the earlier negotiations on GDPR. I went to a meeting in Lithuania and throughout the day I noticed that there was one person sat at the table who never participated, voted or said anything. At the end I turned to the British ambassador and asked, “Who is the guy at the end of the table—he has not said anything?” “That is the Norwegian,” he said. “He can come and listen, but can’t vote and he is not involved our decisions.”

I often think of that when I hear people banging on about sovereignty. Sovereignty was best exercised by British Ministers at the table briefed, I have to say, by officials who were the people to go to. I will not name any particular official, but there was one man to go to as GDPR clunked its way through the machinery. There were “light touchers” and those who had quite recently experienced a Stasi or state abuse of personal data and privacy, and balancing the requirements of GDPR was part of the diplomacy our officials showed. I was also greatly assisted by our parliamentarians in the European Parliament: my noble friend Lady Ludford was very influential in steering the GDPR through some choppy waters.

The noble Lord, Lord Forsyth, who is not in his place, said a few weeks ago in one of our Brexit debates that the first time he went as a Minister to Brussels he felt resentment and animosity that he was being, as it were, dictated to by these foreigners. I do not think that I am being too misleading in saying that; I am sure that he will correct me later if I am wrong. He certainly did not feel at home there.

--- Later in debate ---

[Lord Ashton of Hyde]

Just to be clear, I did not say anything about the speed with which the European Commission would provide its decision.

[Lord McNally]

Oh, dearie me. It is always the EU’s fault that we have got ourselves on this particular window ledge.

[Lord Ashton of Hyde]

I am not blaming anyone, but an EU adequacy decision can be given only by the European Commission. It is not a question of blame; it is just a fact.

[Lord McNally]

I will close with another one where I am sure that the Minister is not going to blame the European Commission but say that it is its responsibility. During the period that I am talking about, the stature and influence of our then Information Commissioner had a major impact on how we put the GDPR in place. Again, the Minister was unable to give us any real reassurances about whether we will be at the table in co-operation, or whether it is these difficult foreigners who are going to stop us doing that.

[Lord Ashton of Hyde]

I—

[Lord McNally]

It is no use the Minister saying otherwise, because this is the reality.

[Lord Ashton of Hyde]

I am sorry, I cannot let that pass. I never said anything about difficult foreigners.

[Lord McNally]

The Minister never said anything about difficult foreigners, but there has always been the impression that this would all be as smooth as smooth. “Do they not understand that we are trying to be helpful?”, we ask, when we have caused Europe so much disruption and cost by this act. In this case, it is essential that we are part of the ongoing dialogue. This GDPR is not the end of the process. As the House was discussing last week, these European laws are going to develop. How we then act and deal with them is going to affect where jurisdiction lies—with European or British courts.

[Lord Adonis]

The noble Lord has raised a litany of concerns about the GDPR regime after Brexit and cited a number of people who briefed him about it, including QCs and Members of the European Parliament. However, he will have noticed that there has been no public consultation at all on these regulations. There has been no opportunity for people directly affected to publicly brief us. Does he share my concern about that? Would he like to comment on the process of public consultation on these regulations?

[Lord McNally]

It is, of course, a farce. These regulations are all being rushed through at the last minute and we know that we have to put them in place as the cliff edge approaches.

I do not want to be rude to Fieldfisher, because it provided some excellent briefing but, my God, the lawyers must be rubbing their hands at the cornucopia that is going to be tipped out to them as companies and individuals try to make sense of the reality. Whether we get a deal, or fall out, it will be a jagged, uncertain, unclear leaving.

[Lord Howard of Rising (Con)]

Does the noble Lord accept just how unclear and what a complete pig’s breakfast the thing is already? I do not think you could make it worse. I have to deal with this on a day-to-day basis. It is a complete and utter mess and no lawyer can even give you a definitive opinion.

[Lord McNally]

My Lords, I was planning a peroration, but I think I will leave it at that.

[Baroness Ludford (LD)]

My Lords, first I have a couple of housekeeping questions which I hope are not too banal. I find considerable difficulty using the legislation.gov.uk website and its search function. Will the Minister ask his civil servants to check it out? Even if you search for “data protection 2019” under UK SIs, both the previous one and this are difficult to find. There was a 19 December version of these regulations, which were replaced in January. I must admit that I have not pored over every line of both to find the differences. Will the Minister explain why that was necessary?

Secondly, I want to ask about the absence of an impact assessment. Paragraph 12 of the Explanatory Memorandum states that:

“There is no, or no significant, impact on business, charities or voluntary bodies arising from this instrument”.


The pretext is that, while the Government recognise that:

“Data flows from the EEA to the UK may be restricted post-exit”—


because, if there is no deal, we will be plunged into a situation where there is no legal framework and no adequacy decision—

“that is as a consequence of the UK leaving the EU, not as a result of this instrument”.

That is the justification for having no impact assessment. However, if we left with a withdrawal deal and a transition there would be a legal framework, so this instrument, which provides for both a no-deal scenario and one in which there would be no adequacy decision, surely merits an impact assessment as well as the consultation to which the noble Lord, Lord Adonis, referred.

As the ICO has made clear, and as has been mentioned already, businesses may have to deal both with the ICO and with European data protection authorities in every EU and EEA state where they have customers. They may need a European representative if they process the data of people resident in the EEA or have customers in the EEA. There would be additional complexity if they had to comply with both the GDPR and the UK GDPR. They could face concurrent legal claims in both the UK and the EEA. Will the Minister amplify the justification for having no impact assessment? Data flows are crucial to many businesses, not just the tech industry—there is hardly a business or other organisation that they do not affect—so the rather blasé claim that no impact assessment is needed is not justified.

I am a bit confused—it may just be my lack of understanding—about the situation regarding EU adequacy decisions on third countries. Paragraph 2.8 of the Explanatory Memorandum says there will be,

“incorporated into UK domestic law … EU decisions on the adequacy of third countries and on standard contractual clauses, both of which are relevant for … international transfers”.

Paragraph 2.13 says:

“It will not be necessary to retain the EU decisions on adequacy and standard contractual clauses … so these are revoked by this instrument”.


If I have understood the Minister’s presentation, this is explained by the fact that we are recognising and incorporating past EU adequacy decisions, but that in the future, in a no-deal scenario, the UK will take over that function: I venture to suggest that that is not very clearly explained in the Explanatory Memorandum.

--- Later in debate ---

[Lord Adonis]

My Lords, the noble Baroness, Lady Ludford, has raised some important points. It is totally unjustifiable that there is no impact assessment for this regulation; I hope that the Minister will address and explain that. The noble Baroness also made an important point about the way that data adequacy will be assessed if we are outside the EU, particularly in a no-deal scenario.

I will extend that to cover my perennial theme of consultation. No issue affects businesses and individuals across the country more than data. Indeed, we went through the whole GDPR exercise precisely because this is so central to our individual and community life. The fact that there has been no consultation at all on this regulation seems truly indefensible, so I hope that the Minister will say why that has been the case. The noble Lord, Lord McNally, said that data is now the new oil. He is absolutely right; it is as important to the functioning of our economy and our society as energy—it is a form of energy—and there clearly should have been consultation. Can the Minister say why there was no consultation? I assume that he will tell us again that there was no time, which begs the question of why we are going through this no-deal process at all if there is not time to conduct the normal processes of government in respect of it.

As ever, there is a bizarre twist to the statement on consultation. Paragraph 10 of the Explanatory Memorandum states:

“The government has not consulted publicly on this instrument”.


I presume that that means that they have consulted privately, and the House needs to know who has been consulted privately. The only body mentioned in paragraph 10 is the Information Commissioner’s Office, with which, it states, the regulation has been developed in consultation. Who else has been consulted privately and what were the selection criteria? Since the regulation was published, there have been representations. What representations have been made to the Minister’s department and what was their content?

The noble Baroness, Lady Ludford, also raised the issue of trying to assess the impact. Again we have doublespeak in respect of the regulations. We are told that their literal interpretation means that there is no further impact over and above the operation of existing European law. However, that is after, in the words of the White Queen in Alice in Wonderland, you have believed six impossible things before breakfast. Paragraph 12, entitled, “Impact”, states:

“There is no, or no significant, impact on business, charities or voluntary bodies arising from this instrument”,


but concludes:

“Data flows from the EEA to the UK may be restricted post-exit, but that is as a consequence of the UK leaving the EU, not as a result of this instrument”.


It is impossible to separate the instrument from the fact that we are leaving the EU. The noble Baroness put her finger on a very important point, which is that if we leave the EU with a deal on the basis recommended by the Prime Minister, the impact might be radically different from that envisaged under the instrument, for two reasons. First, there will be a transition period in which nothing changes but, secondly, the political declaration heralds negotiations on a whole set of issues, including trade and data flows, which might well lead to our continuing in the existing GDPR regime. So the last sentence of paragraph 12 is not true. It is not true to say that the issue of data flows and the regulation of data is dependent on the UK leaving the EU, not as a result of the instrument. There is a crucial difference between leaving the EU with a deal—in particular, with a deal that maintains the status quo—and without a deal.

When the noble Lord, Lord McNally, cited one of his expensive lawyers, who had suggested that there may be additional complexity—

[Lord McNally]

Oh!

[Lord Adonis]

I was not suggesting that they were his personal expensive lawyers, just expensive lawyers who have chosen to brief him; I know that he could not possibly afford expensive lawyers. When he said that it depends on what happens as time goes on, he put his finger on a very important point. The whole point of no deal, with a separate regime under our ICO, is that we could quite quickly find ourselves diverging, and as we diverge, that will quickly impose burdens over and above those that would apply even if we left the EU with a deal.

I am also not sure it is true to say that there would be no burdens as a result of the regulations even at the outset. I am a lay man in this business, and trying to understand what is going on is very difficult, particularly because there has been no consultation and we do not have the opportunity to assess what people who are expert and directly affected have said. The reason I intervened on the Minister in his opening remarks is that, having been a company director who has had to deal with the implementation of the GDPR, I know that having a representative dealing with data matters inside the EEA is very important. Many companies have offshored a lot of their data-control activities, and the requirement of the GDPR that they must have a representative inside the EEA—which I think is the correct thing to do—is a definite burden. It means that companies not only have to employ additional individuals but have to set up additional offices, in essence, to cope with those flows in many cases, particularly if they are dealing with significant data-handling exercises which are outside the EEA at the moment. This happens all the time with call centres in India; many companies are in this territory.

My understanding of what the Minister said in our earlier exchange is that if we leave with no deal and therefore must set up our own UK data-monitoring regime immediately, there will be a requirement for every company operating outside the EEA—which must, under the GDPR, have a representative inside the EEA—to have a representative in the United Kingdom. I would be grateful if the Minister could confirm that because if it is true, that is an immediate and potentially significant burden.

The other important point is that people need to understand that these arrangements are reciprocal. One reason why we as a country have such a good services industry is that a lot of companies based in the UK do substantial business in the EEA and beyond. That is great. My assumption, although it is not spelled out in the Explanatory Memorandum, is that in a no-deal scenario, data controllers who are based in the UK but do substantial business in the EEA will be required by the European Union to have representatives in the European Union over and above their data controllers in the UK; these are not currently needed. I would be grateful if the Minister could address that point. This flows logically from the new regime being set up. I would be astonished if that is not the case because I do not think that the European Union would regard having a data controller in the United Kingdom as meeting its standards of data adequacy. I would be grateful if the Minister could confirm that.

On that point, it is apparent that this immediately imposes a burden, potentially a significant one, on every company that handles data in the European Union or the EEA, as opposed to just in the UK. That represents a substantial proportion of our companies. If we had had an impact assessment, as the noble Baroness, Lady Ludford, suggested, this issue would have been brought out and we would know its effect. If there had been public consultation, we would know, but there has been none—and we have had no impact assessment. To my surprise, the Select Committees of this House that oversee instruments and put them to us have not raised these issues, which seem substantial and should have been raised before these instruments came to this House.

--- Later in debate ---

[Lord Adonis]

I have to say that this for me is a black box. Because of my other duties I have not been able to spend time analysing what is going on in Sub-Committees A and B, but this is very important because hundreds of these instruments are coming to us.

I turn to the issue of there being no consultation, which my noble friend Lord Rooker referred to. I have been going on about it for weeks. This has been true of every single no-deal instrument that has come to your Lordships. It is deeply and profoundly unsatisfactory. In my view this ought to have been flagged up for each of these instruments from the beginning and ought to have been a reason for them not to come before the House. How can we possibly conduct the proper business of the nation in terms of changing the law when we do not have any public consultation with any of the sectors that are affected by these instruments? We are dependent on the expensive lawyers of the noble Lord, Lord McNally, even to spell out the most basic features of these regulations—which, first, will not be apparent to those of us who are lay people and, secondly, which those people who are affected have had no opportunity to present except through the agency of expensive lawyers who seek to make a living. Of course, the expensive lawyers referred to by the noble Lord, Lord McNally, will now advertise their wares to companies, telling them what the impact of these things is going to be because they did not have a chance to engage with them earlier and make their views known, particularly if they start being adversely affected.

[Lord McNally]

My Lords, I never described them as expensive lawyers—otherwise they might never write to me again. I said that they were distinguished lawyers.

--- Later in debate ---

[Lord Adonis]

My Lords, I do not think that it is possible for my blood pressure to be higher on these matters. However, I hope that the blood pressure of the House is high, because we are supposed to be legislating on behalf of the country, and the proceedings of your Lordships in respect of these no-deal statutory instruments are an absolute farce. I do not think that the procedures of the House are working well. The fact is that the two chairs of our relevant sub-committees cannot even agree on a letter to send to the Treasury in respect of the handling of consultation. The fact that it is about six months after we started getting the initial flow of statutory instruments on this matter coming to the House is in itself deeply unsatisfactory and is not a good commentary on the way our parliamentary proceedings are working. Moreover, the fact is that what we get are bromides from the Government that there is no change, based on there being no impact assessments, no consultation and a complete misreading of what the situation is in any event, because it involves a denial of all of the negative consequences that will flow from leaving the European Union, which of course is the underlying fact that they should be grappling with in the first place when conducting consultations and impact assessments. It is deeply unsatisfactory.

The right thing for this House to do would be to reject these instruments. We should not be a party to such an abuse of our constitutional procedures as is taking place with these no-deal instruments. What we will be faced with, though—I feel this pressure myself—is that we could crash out of the European Union in an unconscionable act of misgovernment in the course of five weeks’ time, so we have to do our level best to ensure at least that there is a statute book in place for that eventuality. But I and other noble Lords want to put on the record that the situation we are faced with, and which gets worse with every debate that flushes out more facts about what is actually happening, is a complete abuse of our constitutional procedures.

[Lord McNally]

That last point is very important. Somebody pointed out the other day that one day there will be a full judicial inquiry into how this process has been carried through. Ministers and civil servants should be aware that one day there will be accountability for the way this has been done.

[Lord Adonis]

The noble Lord is right, but I do not think that that day is far off; I think it will come soon. Let us be clear: we are not talking about a natural disaster. As a Minister, I often had to deal with those. When there are ash clouds and volcanoes erupt, you have to take very difficult and extreme decisions at short notice. Here we are talking about an act which the Government are inflicting on the country, with no external agency whatever. Not only that, but the Government could this afternoon terminate the situation we are faced with, in respect of these no-deal regulations, by the Prime Minister announcing that she is not proceeding with no deal and that she will, on behalf of the United Kingdom, submit a request to extend Article 50—or, as we now know she can do from the judgments of the European court, rescind it unilaterally. This will be a big matter for the public inquiry that the noble Lord, Lord McNally, is referring to. All the consequences of this no-deal situation are caused by the Government, and the remedy for them is entirely at the disposal of the Government. It is our absolute duty to point this out all the way through this process, so that at least some of us in the parliamentary system can point to the fact that we did our level best not to take the nation to the edge of the cliff where we are now at.

Coming back to this instrument, it is totally unacceptable that we are dealing with such an important set of regulations relating to the fundamental issue of data and data protection and there has been neither an impact assessment nor any public consultation.

--- Later in debate ---

I have to reject the description of this by the noble Lord, Lord McNally, as a farce. The GDPR—I think every noble Lord knows this, whether or not they were involved in the Act—was extremely high in the public’s consciousness, not always positively. However, what we have ended up with because of that is a data protection regime that is the same as the EU’s.

[Lord McNally]

I withdraw the word “farce”. However, while the Minister is putting great emphasis on the good fit between what he is proposing and the GDPR, the reason why that good fit exists, as I said in my remarks, is that the GDPR itself was massively influenced by British officials, who played a major role in its construction. What he is gliding over in his assurances is that if, as is likely, there are changes in the European GDPR in future then we will be coming, like the Norwegians, only to listen and accept—because, make no mistake, if there are changes in future, it will be massively in Britain’s interest to accept them. This is the loss of sovereignty that the whole process is trying to glide over. We will not have the same influence on data protection in future as we have had in the GDPR itself, which is why the fit is so comfortable at the moment.

[Baroness Ludford]

Forgive me, but I would like to follow up on that. I really think the Minister is overselling what is in paragraph 9 of the political declaration. Last June, the Government issued a technical note about wanting a legally binding data protection agreement, and I described that earlier as a “Brexit in name only” kind of arrangement. They wanted that because there are,

“benefits that a standard Adequacy Decision cannot provide”.

Except for one sentence in paragraph 10 that talks about arrangements for appropriate co-operation between regulators, paragraph 9 is about a standard adequacy decision—no less but certainly no more. It talks about the European Commission recognising,

“a third country’s data protection standards as providing an adequate level of protection”.

It is not what the Government hoped for last June. I do not understand why the Government are trying to pretend. We can all read paragraph 9 once we have googled it and reminded ourselves, so to say that it is more than an adequacy assessment process is simply not true.

Ofcom: RT News Channel

Lord McNally Excerpts

Monday 28th January 2019 Lords Chamber

[Lord Ashton of Hyde]

I do not want to talk specifically about RT for the reasons I mentioned. Ofcom has sanctions which can include fines, suspension or revocation of a licence if Ofcom deems that suitable.

[Lord McNally (LD)]

My Lords, is the Minister aware that Ofcom licenses many hundreds of broadcasters in London? This is a good example of what the noble Lord, Lord Howell, often refers to as Britain’s soft power. Is it not very important that we leave Ofcom to the job it was given with the powers it was given? The idea that some kind of political or government pressure was involved does not set a good precedent with regard to closing radio or television stations. We should let RT make its case to Ofcom, let Ofcom use its powers and then see what happens.

[Lord Ashton of Hyde]

I completely agree with the noble Lord. That is why I said in my initial Answer that it is right for Ofcom to make decisions without government interference.

Gaming Machines and Social Responsibility

Lord McNally Excerpts

Thursday 17th May 2018 Lords Chamber

[Lord Ashton of Hyde]

I am sure that the Secretary of State would agree with that. The difference here is that it was a very popular decision, which always makes it easier.

[Lord McNally (LD)]

My Lords, will the Minister take a more sober judgment? In 2005 this House, and Parliament as a whole, thought that it had done a magnificent thing in stopping the advent of super-casinos. It was the euphoria of stopping them that allowed for the introduction of gambling machines to go through almost unnoticed. There is a danger in the euphoria here also. I think that the noble Lord, Lord Campbell-Savours, and others are right. It is the growth of online gambling and the changes in technology that afford it that will give us the next problem. I urge that the research and analysis into online gambling is carried out with rigour and it is not simply left to the industry to self-regulate, clever as it may be with its artificial intelligence and its algorithms. Independent research is needed, which can advise government in the future, otherwise this problem will come back in another form.

[Lord Ashton of Hyde]

I take that point. I am absolutely not suggesting that today’s announcement is the end of it. We will be very specific: the Gambling Commission is looking at requiring operators to set limits on customer spending until affordability checks have been concluded and at bringing forward stricter licence requirements for gambling companies to interact with vulnerable customers. This is not something that we are just letting them get on with; it is being required of them. If a company were to break such stricter licence requirements, it could lose its licence. There would be very serious sanctions if a company did it wrong. The Gambling Commission is also examining proposals to prohibit reverse withdrawals and the use of credit cards for online gambling. We will continue to pay close attention to the operators’ progress in using behavioural data to identify problem gamblers. We are not just sitting back and saying that this is it. We are monitoring it. The Gambling Commission continues to monitor it and is putting in stricter conditions.