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, 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.

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.

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.

Data Protection Bill [HL]

Lord McNally Excerpts

Monday 14th May 2018 Lords Chamber

[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.

[Lord McNally (LD)]

My Lords, as the noble Lord, Lord Grade, said, this has been a passionate and, actually, very balanced debate. A number of noble Lords have expressed concern about the amendment before us and have, sort of, made a case against it.

When the noble Lord, Lord Black, came in, struggling on his crutches, I did think: is there no end to which this man will not go to get sympathy from this House? I wish him a speedy recovery.

When introducing the debate, the Minister said first that these amendments have no place in the Bill because it is about data protection and then began to dazzle us with the number of government amendments that pertain to the media. Of course it is perfectly sensible that this matter should be in the Bill.

By the way, I say to the noble Baroness, Lady Cavendish, that I did not say I object to journalists; I object to journalists at the Times. She mentioned the growing power of the ICO in all this, which is something that the press should think hard about. The press have been so busy trying to avoid having a proper regulator for themselves that they find themselves well and truly regulated by a powerful ICO. Where the ICO does not regulate the press, the courts may with some of the judgments that are coming down the track.

As always, the perorations against, as with the noble Lord, Lord Hunt, have been about freedom and liberty, as though we on this side are not as passionate in our defence of those. Today’s debate has produced the usual press stories that crop up when either House debates the issue. They always either rubbish one or other of the more popular proponents of reform or carry, as did the Evening Standard just before the Commons debate, such headlines as that from the Commons Culture Minister, Margot James: “We will lose freedom of the press if MPs back new curbs”. It is my belief that the real defenders of press freedom are not the Ministers scrambling to close Leveson down but those of us who want to see a press that is respected and trusted, as well as free.

When the Commons debated our amendment, Mr Jacob Rees-Mogg, the new Erskine May, said rather imperiously that Parliament had every right to renege on promises made by a predecessor. Of course, he is right—we know that, Jacob. However, it is also a long and honourable convention that there is a continuity of responsibility from one Parliament and one Government to another. We saw it last week when the Prime Minister gave a full and unequivocal apology to the Libyan family for Britain’s part in their rendition and subsequent torture, although it did not happen on her watch. The long tradition of continuity of responsibility means that a promise given by one Prime Minister and one Parliament is unlikely to be abandoned by another. There is a double matter of honour when the promise in question was made by a Prime Minister of the party now in power. David Cameron gave such commitments, and the amendment from the noble Baroness, Lady Hollins, gives the House of Commons a way of redeeming that promise while taking into account the passage of time since it was made.

I often find that, when I am indignant having read in the newspaper or seen on TV some summing up or sentence by a judge, my lawyer friends will say, “Ah, but the judge who has heard all the evidence is the best placed to make a balanced judgment on the matter”. In this case, we have the balanced judgment of Sir Brian Leveson himself. Let us remember, after the speeches of the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, that Sir Brian had all the information they had to make their speeches but came to a different conclusion: that it should go on. As I said when the Leveson letter first came up, here is the third most senior judge in the land taking six pages in a very carefully argued letter to give his views on the inquiry on which he spent a year of his life. Some noble and learned Lords in the House should have a little modesty when challenging his judgment because it is absolutely clear that Leveson 2 should go ahead. The noble and learned Lord, Lord Falconer, has already quoted from the letter, so I will not waste time.

The amendment before us is proportionate to the task at hand in addressing issues not yet adequately addressed. It redeems a solemn promise made by our Prime Minister and our Parliament. Jodie Ginsberg, the CEO of Index on Censorship, when briefing against these proposals before the Commons debate, said that she wanted,

“a free, vibrant, independent and troublesome media”.

So do I, and so does the proposer of the amendment. The biggest threat to a free, vibrant, independent and troublesome media is one so held in public contempt because of corrupt and illegal practices that few defenders will come to its aid if press freedom is really threatened.

I say to the noble Baroness, Lady Cavendish, that, when the Leveson inquiry exposed sins and criminality, the Government of the day could at that time have done anything they liked to the press. What they did was make a strong attempt to create something as far from political control as possible—I was one of the privy counsellors who signed the royal charter. It is absolutely false to claim that the attempt was to create a state-controlled press. That was never on the table and it is not on the table now.

The noble Earl, Lord Attlee, who has been brave in carrying through on Section 40, has said that we will not press it beyond tonight. I am interested to see which bit of legislation will include its repeal and how that will be favoured when it comes back to us. I say to the Minister: this is not the end of Section 40.

Tonight, we are looking for something more. As the noble Baroness, Lady Hollins, and the noble Lord, Lord Kerslake, have shown, we are looking at something for the victims. The noble Baroness, Lady Cavendish, should note that it is also something for journalists who need protection from being bullied into illegal acts by their employers. Most of all, it is for our own self-respect in keeping a promise made. I urge support for this amendment.

[Lord Stevenson of Balmacara]

My Lords, we are 90 minutes in and we have heard lots of familiar tropes rehashed and replayed, but have we achieved very much in this debate? While sitting here I have been wondering how on earth one brings together the two very different sides that are emerging in this debate. I whispered to my colleagues on my right and left asking for help and support, and all I got was, “You need the judgment of Solomon on this”, and I do not have that. However, we are going to ask noble Lords to vote on this issue, and so I want us to think very hard about what we have been doing here.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I am grateful for all those comments. It is nice that in the last group I will handle on it—touch wood—I leave the Bill in a glow of good will. I am particularly pleased that I can agree with the noble Lord, Lord McNally, and that we have been able to respond to some of the concerns and points raised in this House. In many ways, the Bill has been an object lesson of discussion on a very technical Bill. We have made progress. I certainly acknowledge and am very grateful for the support and co-operation I have had from both opposition Front Benches.

[Lord McNally]

As a little footnote, which might give encouragement to others, I first raised the Thomson Reuters matter because it sponsored a conference at the Guildhall well over a year ago about the coming of the GDPR. I went along to find out about it. I and the other Benches raised this from that. It has now ended up in the Bill. It is an encouragement to companies that sometimes think that legislation is a mysterious place that, by taking little bit of effort to put the case and extend it, they can have real influence.

[Lord Ashton of Hyde]

I am grateful to the noble Lord. That brings me nicely to the point made by the noble Lord, Lord Pannick, about arbitrators. The noble Lords, Lord Clement-Jones and Lord Stevenson, mentioned the importance of arbitration to the economy of this country. I am only too well aware of it from my background in insurance. London has a very well-respected legal system, but the arbitration system is linked to that. We certainly would not wish in any way to hinder it. Contrary to what the noble Lord, Lord McNally, did, the people who brought this up seemed to do so at the last minute. I slightly wonder how they managed to miss this trick, if it is so obvious, for the two years that the GDPR has been in place, let alone—

Social Media: News

Lord McNally Excerpts

Thursday 11th January 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, the summing up of a debate such as this is always difficult and today it is almost impossible. I will not mention all the contributions—as I say, that would be impossible. I will mention three. I am delighted to be following the noble Baroness, Lady Lane-Fox. As she knows, I am one of her groupies in that I have looked to her for advice on this area since I was a Minister and she was part of an advisory group, which I confess I referred to in my private office as “Geeks Anonymous”. I am also thankful to the noble Baroness, Lady Kidron. I said after her amendment that hers was a parliamentary triumph and a game-changer. I believe that the Kidron amendment will be referred to time and again in the years to come as having changed the weather in how we approach this. Finally, the noble Lord, Lord Puttnam, has been my mentor and friend on these issues for 20 years and I am grateful that he has intervened again today. As for the rest of you, all I can possibly do is amend a saying beloved of our American friends: there has not been so much wisdom concentrated in one place since Thomas Jefferson dined alone.

My own mentor, Jim Callaghan, used to like to say, “A lie can be halfway around the world before truth has got its boots on”. Jim used to say that in the 1970s: now, of course, it is in nanoseconds, or whatever is the flash of light in terms of information. How our societies come to terms with what has been termed the fourth industrial revolution, the data revolution or whatever, will be one of the great challenges. Matthew Parris, who entered the Commons in the same 1979 intake as I did, wrote in the Times on 30 December:

“The internet is a jungle that can’t be tamed. It would be impossible to censor social media so we might as well embrace fake news and learn to ignore the insults”.


I admire Matthew Parris, both in his political career and as a journalist, but it is a thought with which I profoundly disagree. It is the task of this generation to bring the new technologies within the rule of law and of democratic accountability. Of course, I agree with the noble Baroness, Lady Harding, that we need to get the balance right and to make a proper judgment about benefits and real harm, but I also agree with her that saying no politely is not enough of a response for these social media giants.

I think that in many ways we are in the same position as politicians who had to face the massive changes of the industrial revolution, and in the United States the massive growth of corporations. The political systems showed the ability to tackle the big trusts, the monopolies and the health and safety, hours of work and all the rest. We must not preach a feeling of doom about this: they are not beyond our control, but when I say control, it is that light touch. When I was the Minister working on the general directive which is at the core of the Bill that was debated in the House yesterday, the British position was constantly to have light-touch regulation. We were mostly opposed by countries which only but recently had experience of a Stasi, or the power of an intrusive state, so I understand the balances and the discussions.

In many ways, some of the agonising in this debate today is always there in a liberal democracy—small “l”, small “d”. In liberal democracies, we agonise about what the limits of free speech are, and if we put limits on it, we worry about why we do so. In that respect, as I hinted in the debate yesterday, I am closer to the noble Lord, Lord Black, than might be imagined. I really am worried that these big companies can, as it were, asset-strip the communications industry in a way that undermines the ecology of all communication. I cannot remember which of the White Papers it was from some time during the 1980s or 1990s that talked about diversity, quality and choice as the aim of policy, as far as communications in its widest sense goes. I still believe that is important and that to have that diversity, quality and choice, we must make sure that our print media are not dramatically undermined. I took to heart what the news media associations said on how these new technology companies are undermining and weakening them.

I have also had the briefing, as most of those taking part probably have, from ITV, Channel 4 and Sky about the impact on them. Of particular interest, and an old concern of mine, is the BBC. If our communications ecology is under threat from these companies, it is more important than ever that we continue to support the BBC and the other public service broadcasters in the job that they do. We need to be careful that they are not undermined by what these tech companies are doing. This is not only in the provision of news but in the undermining of these companies in providing an underpinning of our cultural values, in the programmes they commission and the work they do. Ofcom has to take on its new responsibilities by not only regulating or oversighting the BBC but by defending it against unfair attacks. In this new age, a BBC dedicated to inform, educate and reform is more needed than ever.

I agree entirely with the point made by the noble Lord, Lord Puttnam, about education. Again, it is good that we have had this overlap between the Data Protection Bill, which we debated yesterday, and this debate. We are talking about getting ourselves ready for this transformation. I also agree with the noble Lord, Lord Inglewood, that it is as big a change as the invention of the printing press. It is a complete challenge to almost every sector of our society and if our democratic institutions are to be able to survive the assault that this era of rapid change brings to us, we will have to be ready. I will cite again that when the Education Act 1870 was passed, it was said that they had to educate their masters. Well, now we have to educate our population—not just our children but us all.

We have also got to educate ourselves. I was invited to a round table as an expert on the digital economy. I said that I am not an expert but a politician trying to learn about what this involves for our society. I strongly support the suggestion made by the noble Baroness, Lady Kidron, of an ad hoc committee of this House. I know that is not a ministerial responsibility. This debate is not an end in itself. It is part of a process of getting ourselves prepared and ready for some of the challenges that new technologies are going to bring to Parliament and to our society.

Data Protection Bill [HL]

Lord McNally Excerpts

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

[Lord Finkelstein (Con)]

My Lords, I first declare my interest as a Times columnist. Perhaps I may also start by thanking the noble Baroness, Lady Hollins, for the opportunity to listen to what she had to say, which it was impossible to do without regarding it as moving and passionate and a cause for reflection. It would be an insult to free debate if I did not say to the noble Baroness that listening to her has made a deep impression on me. I thank her for what she had to say.

I am afraid that I do not agree with the remedy being proposed by the noble Baroness. Perhaps I could propose a minor procedural innovation, which is that before people go through the Division Lobbies and vote for a further inquiry, they might be required to provide evidence that they have read all of the previous one. It ran to 2,000 pages, with 115 pages on data protection, which people may not have come across because they started on page 997. The noble Lord, Lord Paddick, suggested that a second inquiry which delved into the relationship between politicians among others and the press was a good idea. That inquiry was also conducted by Leveson. I know that because I was in it. It was set out in the third volume, and not many people who were not working in the legal departments of newspapers mentioned it to me.

I understand the comment from the noble Lord, Lord Lipsey, about the Times’ comments this morning. It is the normal habit of columnists to say, “I didn’t write the headline”, but in this case I am happy to stand behind it. Of course I understand that nothing would occur less to noble friends and noble Lords than to attack free speech—nobody thinks that that is what they are doing, and de jure they can claim that it is not what they are doing—but please do not have the impression that, de facto, it makes no difference to the free publication of criticism and newspapers if we have yet another inquiry. I know that it is not what the motivation is, but it is effectively harassment to continue to ask the same questions and have inquiries into the same issues. We have heard many moving examples that are covered by two things. They were either raised by the Leveson inquiry or they are capable of being dealt with by criminal, political or arbitration solutions. The idea of having another inquiry therefore justifies how the Times put it this morning.

[Lord McNally (LD)]

My Lords, I am not a lawyer or journalist. If I was to describe myself as anything it is a jobbing politician. But each and every one of us in this House has to make their decision as a jobbing politician. Quite frankly, and with the utmost possible respect—I know that is what you always say when you are about to be rude—having listened to the lawyers, my head spins. That is why, in the end, we have to make a political judgment.

The truth is, we are where we are because the press that the noble Lord, Lord Black, speaks for—I make no criticism of that—decided that they would not co-operate. We could have had a working system backed by a royal charter from the beginning. Those of good will on all sides could have made that effective. It was the decision of the noble Lord and his friends not to make it work. Everything we have had since then flows from that determination that they would not make the legislation, which passed through both Houses with massive majorities, work. That is why we are in the position we are in now.

We then have to add to that the fact that, sadly, the Conservatives decided to go back on the pledge that the Prime Minister of the day made to the victims that they would have the full second inquiry. They put it into their manifesto, which, noble Lords may have noticed, did not get the approval that they would then claim as a strength in this House.

The position we have now is that the consultation is in the works. Lord Leveson, who must be a glutton for punishment, has said that he wants to look at not only the conclusions, but the submissions and will make positions of his own. What worries me is that, unless we do something tonight to send this matter forward to the other place, it will be taken out of the hands of Parliament. It is a rough old way of doing it, but by passing this amendment it will go to the Commons at a time when the Commons will be cognisant of the amendment as an opinion of the House of Lords, the outcome of the consultation and the opinions of Lord Leveson. That strengthens the position of Matt Hancock, the new Secretary of State—an appointment I very much welcome—but we all know how it works: Ministers in the department may be very willing to give assurances that we will have an inquiry somewhere down the line, but then they will get a call from No. 10 saying, “You can’t: you won’t do this”. We have to strengthen the hand of Ministers who want to carry this through to a proper and honourable conclusion.

We have again heard all the usual arguments. There is no threat of state control of the press. I say to the noble Lord, Finkelstein, to look again at that headline and see whether he is still proud of it. Another Lord Attlee once said he only read one newspaper, the Times, and that was for the cricket scores. I am not sure he would trust the cricket scores these days.

One pertinent item of briefing noble Lords will have had, and to which a number of Members have alluded, was in the rather shrill briefing paper from the News Media Association, which says that,

“the industry faces acute challenge from global digital platforms which reap commercial rewards from the news industry’s investments, yet invest nothing in news content themselves and are treated as mere conduits, with freedom from the responsibilities and liabilities of publishers”.

As the noble and learned Lord said, that is the real challenge to the press. The noble Lord is diverting and losing friends by this obstinate refusal to build the strength that would come from royal charter-approved press regulation. I know that he worked with the PCC, but this is not a 10-year problem. For the last 30 years, we have had this problem that press regulation by itself has never carried credibility. It did not carry it in his day, which is why they got rid of it. If I can remember rightly, they got rid of the one before that in the midst of a scandal. They will probably get rid of IPSO when the next scandal comes along, because it will not work.

I suggest that we strengthen the hands of Ministers by passing these amendments to make sure that, when it goes to the Commons, there is an opportunity in the light of all the facts to make a fully informed decision. I was one of the Ministers who signed the royal charter. I can assure the House that for both Conservative and Liberal Democrat Ministers—we were in full consultation with the Opposition at that time—the one thing we wanted to avoid was any sniff or smell of state regulation. The real intention was to protect the press, not just the press owners. My belief is that, if they had followed through on the royal charter and had a proper regulator, it would protect individual journalists. I always remember during another scandal a very senior member of the Times had just rewritten their regulations yet again. I said, “What if the Daily Mail scooped you on something that you decided was prevented by your new charter?” He said, “Rupert would fire me”. It is that that we want to protect individual journalists and their integrity from.

This would be a step forward. It would keep the political debate going in the place where it needs to be made—the House of Commons. We should make sure that we vote as politicians, thinking about the reality of it. All my life in politics I have made judgments on things by looking around and seeing who was smiling. If noble Lords defeat these amendments, those who will be smiling are those who have done most damage to the press by what they did while in charge of the press. Those who will be in despair are those individual citizens who have not seen their privacy or civil liberties protected. The House would feel ashamed of itself.

Data Protection Bill [HL]

Lord McNally Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Lord Finkelstein (Con)]

My Lords—

[Lord McNally (LD)]

We need to get to the Front Benches soon. I am sorry but I think the Times newspaper has had quite a good run tonight.

[Noble Lords]

Oh!

[Lord McNally]

We have heard from journalists, we have heard from lawyers—come on.

Before we hear from the Front Benches, I want to say that it would be perfectly good to have this debate and listen to all these distinguished speakers if we were looking at a few tweaks to the 1998 Act, which otherwise had run perfectly smoothly, and if in the 20 years since then we had seen nothing to perturb us about how the law was working. The truth is that we are operating against the background of Lord Leveson’s report. I have the greatest respect for the noble and learned Lord, Lord Brown, my noble friend Lord Lester and the noble Lord, Lord Pannick, as all three of them know, but I also have the greatest respect for Lord Leveson. I saw him week after week in one of the most public examinations of how the law was working that we have ever seen in this country. It revealed abuse on an industrial scale by many of the people who have spoken about their profession tonight.

--- Later in debate ---

[Viscount Hailsham]

Does the noble Lord accept that the amendment he supports will tilt the argument against free speech and chill the ability of the press to publish?

[Lord McNally]

No. The amendment I have put forward is exactly the finding of Leveson—that what was wrong in the 1998 Act was an imbalance the wrong way. That is what Leveson found and suggested that Parliament put right. There may be many other ways of putting it right, but to say that what Leveson did was somehow to be totally ignored ignores not only Leveson itself but the findings and support of both Houses of Parliament. Since Leveson and the setting up of the royal charter—I was the Minister involved with that—nobody could have tried more than that set of Ministers to find a solution that was as far away from state regulation as we could possibly find.

[Lord Low of Dalston]

I—

[Lord McNally]

I am trying to wind up, but carry on.

[Lord Low of Dalston]

The noble Lord said that Leveson found that the press had abused its position and looked to Parliament to put it right. Would the noble Lord not agree that Parliament has put it right with Section 40 of the Crime and Courts Act 2013, but that the Government have not given effect to that provision?

[Lord McNally]

I am grateful for that accurate intervention. The noble Lord, Lord Berkeley, asks from a sedentary position what the answer is. The noble Lord, Lord Low, is right: the Government have not gone ahead with Section 40. The Government have sat on their hands.

All I will say in conclusion is that the media can roll out all their lawyers and journalists, and they can write their editorials suggesting that we are attacking press freedom: they know it is rubbish and not true. Unless the Government deal with the real hurt, problem and exposed faults of the media, this will continue. A sensible, smart Government—one advised by the noble and learned Lord, Lord Keen—would deal with these problems now rather than let it drag on into 2018, as it will. We will vote for the amendment.

[Lord Finkelstein]

I hope the noble Lord, Lord McNally, will forgive me, but I feel his comments require response. I recall at a university meeting when we had to discuss rules for debate, one student started a speech with, “I’m a liberal, but I’m against free speech”. I notice we have a very large turnout of both small “l” and big “L” liberals in the House, which usually suggests we are about to ban something. I am very sorry to be on the other side from the noble Lord, Lord McNally, who has been my inspiration and mentor for many years, but I have to disagree with him on this.

First, the proponents of these various amendments argue that these changes are not an attack on free speech but, in practice, they are. They tilt the balance against investigative journalism, scrutiny of the powerful and legitimate inquiry. The high bar introduced of necessity would have a chilling effect for anyone who has worked on practical investigations. What will happen is not so much that the law will be used, but that it will never be used because investigations will not take place.

Secondly, the proponents say that this is not about state regulation of the media, but it is. It will be done in two ways. The Information Commissioner will end up with so much power that he or she will become a press regulator whether or not he or she wishes to. That would be the impact of Amendment 55. At the same time, newspapers will be pulled against their will into Impress, which has been the burden of several remarks in this debate. That is also an aim of Amendment 55. It is simply nonsense to say that all that is being sought is voluntary self-regulation when the failure to volunteer or regulate in a state-approved way and be licensed by a state body is backed up by repeated attempts to penalise and punish, as these amendments would do.

Thirdly, the proponents say that all we will be doing is controlling behaviour, not content. I am afraid that this is wilfully naive. Impress has been named as a regulator. That choice by the panel is instructive. The behaviour of the staff and board of Impress, the body the panel has approved, shows quite clearly the agenda being followed. Its chief executive has been sharing views such as:

“John Lewis is bringing its name into disrepute by advertising in a Neo-Fascist rag”,


and:

“I do like @StopFundingHate’s campaign to defund racist media”.


This means it cannot claim to be the independent regulator the noble Lord, Lord Low, talked about. This is apparently acceptable as charter-approved behaviour, yet some noble Lords are critical that national newspapers are suspicious of the charter and fear Impress.

My fourth point is very important because the noble Lord, Lord McNally, said this in Committee. I respected it and listened to it. He said that newspapers have “got away with it”. This is not the case. People went to jail, newspapers closed and the regulatory system changed utterly. Those of us working in the industry all know and agree that there has to be change. Anyone who thinks that there has not been has not read a newspaper or been in a newspaper office since the scandal broke. I respect and understand the pressure for change, but you have to take “yes” for an answer.

Finally, there is a suggestion that the public are crying out for further regulation and more inquiries. People who advance this argument must have been in different constituencies from me. The attempt to hijack Bills to bully the press into compliance is a diversion from the public interest and there is no public pressure for it. Of course, it is right to insist on high standards of behaviour, but to introduce amendments designed to help powerful people keep secrets and to make free publication harder is an odd position for liberals. All I ask is that we do not remove protections in Britain enjoyed by Europeans. Normally, this rallying cry is very effective in this House. Let us hope that it is today.

Data Protection Bill [HL]

Lord McNally Excerpts

Monday 11th December 2017 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, I thank the noble Baroness, Lady Kidron, for moving these amendments with such incredible clarity that I was able to understand what they were saying. My question follows on from the point made by the noble Baroness, Lady Howe, about how these amendments would be enforced. As the noble Baroness, Lady Jay of Paddington, said in Committee, all these issues arise in an international context. How will the international dimension work with regard to these amendments? I would be concerned if we were to impose rules in this country which might create divergence from the GDPR and hence make it more difficult to achieve the eventual accommodations with the European Union that would allow us to continue to do business with it in the longer term. There is an international dimension to all this and I do not understand how it would work with regard to these amendments.

[Lord McNally (LD)]

My Lords, not for the first time in her distinguished career in this House, the noble Baroness, Lady Howe, has asked some pertinent questions, the answers to which I look forward to. First, however, I pay tribute to the noble Baroness, Lady Kidron. It is quite often difficult for a parliamentarian to know whether they have made a difference; we all get swept up in the tide of things. However, I have looked at the Bill as it has moved through both the other place and here, and without her intervention, her perseverance and her articulate exposition of the case, we would not be where we are today. She should take great credit for that.

In some respects, there is a sense of déjà vu. I am glad to see the noble Lord, Lord Puttnam, in his place; I was on his committee 15 years ago which looked at the Communications Act and the implications of what were then new technologies. However, looking back, the truth is that we had only an inkling of the tsunami of technology that was about to hit us and how we would control it. There are some things that we might have done during the passage of that Bill to anticipate some problems that we did not do. However, it is always difficult to know the future. Indeed, of all the things I have had a bit to do with, the creation of Ofcom is one that I take great pride in. For all its problems, Ofcom has proved itself a most effective regulator, and these days it seems that it is asked to do more and more.

That brings us to what is being suggested with the ICO. It is extremely important that the ICO is given the resources, the teeth and the political support to carry out the robust tasks that we are now charging it with. That was not thought of for the ICO when it was first created. We are therefore creating new responsibilities, and we have to will the ends in that respect.

One of the good things about the amendments in the name of the noble Baroness, Lady Kidron, is that this is beginning slightly to impinge on the tech companies—they cannot exist in a kind of Wild West, where anything goes. I think I said at an earlier stage that when I hear people say, “Oh well, the internet is beyond political control and the rule of law”, every fibre of my being as a parliamentarian says, “Oh no it’s not, and we’ll show you that it’s not”. This is a step towards making it clear to the tech companies that they have to step up to the plate and start developing a sense of corporate social responsibility, particularly in the area of the care of children.