Huawei

Lord Paddick Excerpts

Thursday 25th April 2019 Lords Chamber

[Lord Ashton of Hyde]

The noble Lord is exactly right. As I said, this is not just about one country. The National Security Council looks at all these issues. The problem with a global network such as the internet is that threats can come from any country, and they may originate in one but attack through another. It is complicated. In this country, we have one of the best organisations to deal with this: the National Cyber Security Centre in GCHQ. The main thing to stress is that our security is pre-eminent, but we have to strike a balance with new and emerging economies and how we deal with them—and not just with regard to cybersecurity.

[Lord Paddick (LD)]

My Lords, the security of the UK is greatly enhanced by its membership of the Five Eyes group of countries, almost all of which are very concerned that Chinese tech companies are required by law to co-operate with Chinese security agencies. Five Eyes countries will continue to share sensitive intelligence with the UK only if they have trust and confidence in our security services. What assessment have the Government made of the damage caused by the alleged leak from the National Security Council—both the fact that there has been a leak and the content of the alleged leak?

[Lord Ashton of Hyde]

To pick up on the noble Lord’s first point, I do not place a huge amount of importance on the Chinese law that he referred to, which requires companies to co-operate with the Government. If anyone thought beforehand that that law did not exist, they were unwise. On his point about security and the leak, I can only re-emphasise that when security matters are discussed at government level, they should be kept confidential. There is an assessment of that going on at No. 10 at the moment, but I have no details of it because it has not been completed.

Online Pornography (Commercial Basis) Regulations 2018

Lord Paddick Excerpts

Tuesday 11th December 2018 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I first apologise to the House that I missed the first two minutes of the Minister’s contribution. I would like to make some comments. Some have already been said and I hope that by repeating them, it will not lessen their impact. I am pleased to join other noble Lords in supporting the Government on bringing these regulations and the guidance before the House to implement age verification. However, I have some questions about implementation.

First, I note that the regulations apply to all pornographic websites that charge a fee or, if access is free, where there is benefit in some other way from pornographic content, perhaps through advertising. In cases of the latter, at least one-third of the site’s content must be pornographic for it to be required to provide AV, unless the website specifically markets itself as providing pornographic content, in which case AV requirements apply regardless of how much pornographic material is made available. This arrangement has caused Sub-Committee B of the House of Lords Secondary Legislation Scrutiny Committee to ask two key questions, which I put to the Minister today. First, how will the BBFC measure pornographic content on a free website so that it can come to a determination that one-third of the content is pornographic? Secondly, how will we protect children from pornography on free websites where less than a third of the content on the site is pornographic?

It seems to me that, in introducing this legislation, the Government have very properly recognised that it is not appropriate for children to stumble upon online pornography; they should be protected from this material through age verification. Having conceded this point, however, what justification can there be not to protect children from accidentally stumbling across pornography on a free site where 30% of the content is pornographic? Is there not a sense in which children are more likely to stumble accidentally on pornographic content located on websites with other content than on a site that is completely focused on providing pornography?

Turning to the guidance document, I note that page 9 suggests that age verification may not need to be conducted every time someone visits a website. Does this mean that if a child uses a computer that has previously been age verified by a parent, they will automatically be able to access adult sites without any further checks to establish that the computer is being used by an adult? What protections will be applied to prevent this happening? Moving on to page 7 of the guidance, I note that a website found to be in breach of the age-verification requirements will be given a “prompt timeframe for compliance”. However, what does “prompt” mean in practice? Will a website be required to rectify the deficiency within a day, a week or a month, or maybe longer? I hope the Minister will be able to make that clearer.

One of the enforcement mechanisms that has caused some questions is the ability to issue fines. At Second Reading of the Digital Economy Bill, almost two years ago to the day, I raised some practical questions about how fines would work in practice, as many of the sites are based overseas. I remind your Lordships that, when that Bill was in Committee in the other place, the Government said that it was possible in some circumstances to fine sites in other jurisdictions. They said:

“We want to be able to fine non-UK residents—difficult as that is—and there are international mechanisms for doing so. They do not necessarily reach every country in the world, but they reach a large number of countries. For instance, Visa and other payment providers are already engaged in making sure that we will be able to follow this illegal activity across borders”.—[Official Report, Commons, Digital Economy Bill Committee, 20/10/16; col. 217.]


I tabled some probing amendments in Committee here on 2 February 2017 about the use of fines, which I was then concerned would have “limited utility”. I can conclude only that the Government have come to the same view, as they are not proposing to bring those parts of the Act into effect. However, given that at the time of the Bill the Government were adamant that the ability to fine was needed, I hope there will be an analysis of the effectiveness of the other enforcement mechanisms going forward and that, if there is a gap that could be met by fines, the Government will bring the fining provisions into effect and designate a regulator to collect the fines—something the BBFC is not designated to do.

Finally, I echo what other noble Lords have said about non-photographic child sex abuse images, which it is illegal to possess under the Coroners and Justice Act 2009, and all but the most violent pornography, which it is illegal to supply under the Video Recordings Act. As I said at the time, I believe that a terrible mistake was made in moving amendments to prevent the regulator blocking this illegal content. I am pleased that Section 29 of the Act requires a review of the Part 3 definitions 12 to 18 months after the implementation of that part, which could make good this shortfall. This delay, however, is too long. I call on the Government to address this shortfall in the new year by making time for the Digital Economy Act amendment Bill proposed by the noble Baroness, Lady Howe. It is a very short Bill, the substance of which is all in a single clause. Crucially, however, that clause addresses all the presenting issues. I very much hope that the Government will seize this opportunity.

[Lord Paddick (LD)]

My Lords, I have some concerns about the regulations before us, although I have to say that the Government are trying to do something that is very difficult, if not impossible, which is to regulate the internet. I am perhaps not as enthusiastic as my noble friend Lady Benjamin on this.

These regulations do not adequately protect children from pornography or, to use the Minister’s words in his introduction, they are not the complete answer. No system of age verification can do that as, as other noble Lords have said, pornography is available on sites other than commercial pornography sites and the potential controlling measures could not in reality be used for those other sites. Asking UK internet service providers to block Tumblr and Twitter is not a runner in the real world, and these are free-to-use services, so asking financial institutions not to take payments for non-compliant sites would not work either.

In fact, using a virtual private network to appear to be in a country that does not have age verification is a free and easy way to get around any age-verification process. As the noble Lord and my noble friend said, we are the first country to try this and therefore there are plenty of countries that one can pretend to be in in order to get round the system.

Age verification without statutory guidelines to protect the privacy of adults seeking to access legal pornographic material on the internet is a significant threat to people’s privacy but, having said that, the arrangements that the British Board of Film Classification has made around a voluntary code, where certification is given to companies providing age verification to give people some confidence that their privacy will be protected, is a second-best but welcome measure.

These measures, in addition to creating the risks to privacy and failing to thwart curious and determined young people, are of use in preventing children accidentally stumbling across pornography, as my noble friend Lady Benjamin said, but only on commercial porn websites. Does the Minister feel that this could as easily be achieved by making it mandatory for websites that contain pornography, whether one-third or more of the website, to have “Adult only” warnings before the browser of the internet can access pornographic images as opposed to an age-verification system?

The other use of these regulations is an attempt to restrict access to extreme pornography, which is a bit like Brexit—it is not enough for some and goes too far for others, as the noble Baroness, Lady Howe of Idlicote, indicated. I am not sure that, as some have suggested, age verification limits access to educational LGBT+ resources; I am not sure that commercial porn sites contain such beneficial information. As I have said before and will say again, what is really needed is compulsory, age-appropriate, inclusive sex and relationship education for all children, including telling even very young children what they should do if they encounter online pornography—that is, to turn off the computer immediately and inform a parent or guardian—as that is unfortunately something that will inevitably happen despite these regulations.

My overall message is that we should not delude ourselves that these measures are going to be wholly effective in preventing children viewing online pornography or that they will adequately protect the privacy of adults seeking to access legal material on commercial porn websites and that as a result we should be careful that we do not lull ourselves into a false sense of security just by passing these measures.

Data Protection Bill [HL]

Lord Paddick Excerpts

Monday 14th May 2018 Lords Chamber

I am in favour of the amendment moved by the noble Baroness, Lady Hollins, and I think we all should be. It addresses really unsatisfactory conduct, which will be properly dealt with only if there is an inquiry and the police are held to account.

[Lord Paddick]

My Lords, I should declare a few interests. The first is that I was the victim of a kiss and tell story in a Sunday tabloid newspaper: front page and eight inside pages. I was also, separately, the victim of phone hacking. Thirdly, I joined the noble Lord, Lord Prescott, in his civil action under the Human Rights Act. Fourthly, I am a former senior police officer.

Briefly, on the contribution of the noble Lord, Lord Pannick, and the rather rosy picture he has of civil actions being taken by victims of phone hacking, and referencing what the noble Lord, Lord Black, said about the reality of what goes on outside, my reality was that yes, I had lawyers working on a conditional fee agreement—no win, no fee. I was told at the beginning of the process that I could get insurance against losing. Three months into the action, when tens of thousands of pounds had been spent by both sets of lawyers, it was established that I could not get insurance against losing. If I had stopped the action at that point, I would have had to pay the costs not only of the newspapers’ lawyers but my lawyers, because a conditional fee agreement works only if you go through with the action and then lose. Unfortunately, it is very difficult for ordinary people to take on newspapers through the courts in the way that the noble Lord, Lord Pannick, presented it to the House earlier.

I say to the noble Lord, Lord Cormack, that, yes, the other place considered a previous amendment that we put to them. This is a different amendment. It addresses many of the concerns expressed in the other place, and the other place should have the opportunity to consider this amendment.

The noble Baroness, Lady Cavendish of Little Venice, and the noble Lord, Lord Black of Brentwood, both talked about the enormous burdens on major newspaper groups. We need to consider the enormous burdens placed on innocent victims of the media.

[Lord Puttnam]

My Lords, the noble Baroness, Lady Cavendish, made the point that there were few journalists here. As far as I know, the noble Baroness, Lady Kidron, and I are the only remaining film-makers—and I think that we do know how to edit. I would very much like to support the amendment perfectly set out by the noble Baroness, Lady Hollins. It should not be necessary to say this in your Lordships’ House but, once again, I reiterate that I am the proud son of a journalist and would die in a ditch to protect a responsible and fearless free press. But freedom of any sort brings its own responsibilities, and the greatest of these is the sustaining of trust. This short debate is all about trust.

The Minister in another place said he was being “forward-looking”. I am sure that I speak for many in this House when I suggest that the most forward-looking ambition that we share is the possibility that we might, over time, regain the trust of the people of this country in the quality and integrity of Parliament. As I see it, this ambition trumps all others—and to judge by recent coverage in our national press we are not coming from a particularly good place in that respect.

On the evidence of the past 20 years or so, much of the national press takes the position that its role in society is so important that Parliament needs to get over itself, and understand that in the real world you cannot make omelettes without breaking eggs. The view that it appears to advance is that, to remain sustainable, injustice, distortion, deception, abuse and even at times criminality are the price that society is required to pay for a robust, unfettered press. What if the Church took a similar position with regard to misconduct in its own ranks, or our judges argued that an acceptance of illegal practice in the collection of evidence was a necessary price to pay in the pursuit of justice? At the height of the financial crisis we came close to being persuaded by the banks that their reckless behaviour was justified by the pressures placed on them by their shareholders. I would argue, as has been very well put many times during the passage of this Bill, that society cannot afford the luxury of entirely unconstrained freedoms—not in the law, the Church, the financial sector, social media and even the press.

The reasons why Leveson 2 is necessary were well explained by the noble Baroness, Lady Hollins, in setting out her amendment. Personally, I have not the slightest doubt that such a review would reveal an extensive and entirely improper set of relationships between the press, politicians and the police, with the very real possibility that significant cases of actual obstruction of justice would come to light. It seems just possible that, in making that suggestion, I have stumbled across the real reason for the Government’s desire to scrap this second and, to my mind, more important inquiry.

I have just two specific questions to put to the Minister. First, having checked, I can find no record of the former Prime Minister having expressed a view on the unprecedented repudiation of his commitment to Parliament, let alone the breach of his well-publicised personal promises to the victims of press abuse. Has he been asked about, and has he indeed endorsed, the recent decision by the Secretary of State? Is Mr Cameron prepared to meet the victims to explain what factors or new revelations encouraged him to change his mind on this matter—if he has? Possibly the Minister, or even the media, might choose to inquire. Further, does the Minister feel that the precedent set by the decision to scrap Leveson 2 is likely to enhance or diminish the likelihood of overcoming the challenge I referred to at the outset—the ambition of all responsible politicians to develop greater public belief in the honesty and integrity of Parliament in general and of the Government that he serves in particular?

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Paddick (LD)]

Equal prominence!

[Lord Keen of Elie]

All things are relative.

I appreciate that a great deal of passion has been exhibited, and indeed the noble Lord, Lord McNally, talked about a passionate and balanced debate; it has been both. It has certainly been balanced when we consider the contributions made on all sides of the House. However, I would seek to touch on one or two points that have been raised. The noble Baroness, Lady Hollins, raised the question of Northern Ireland. To clarify in respect of that matter, the commitment made last week did not relate to the Cairncross review; it related to the review that would be carried out pursuant to Commons Amendment 109, in particular paragraph 4 which refers to a review that will take into account all parts of the United Kingdom and will ensure that there is an independent named reviewer for Northern Ireland. I hope that that covers the point.

My noble friend Lord Attlee raised certain issues with regard to VAT. He is right about VAT on e-publications, which are classified as electronic services. EU VAT law specifically excludes such services from the reduced rate of VAT. Further consideration of that matter is beyond my pay grade and is one for Her Majesty’s Treasury in due course, so I shall not elaborate upon that. As regards the repeal of Section 40, the Government are committed to doing that at an appropriate time on the basis of appropriate legislation, so the noble Lord, Lord McNally, can anticipate that coming forward in due course.

I shall move on to certain points that were raised by the noble Lord, Lord Prescott. On the royal charter, the Press Recognition Panel, which was set up by the charter, remains a feature of our regulatory landscape so there is no need to intrude upon the charter or to consult further on it at the present time. On his reference to the Sunday Times and the allegations regarding John Ford, that was a matter of self-incrimination as far as I can see in respect of criminal acts that took place before 2011; they are not recent events. On the position regarding Ireland, the press may sign up to the Press Council of Ireland, but they are not obliged to do so, in order to secure the benefits of being members of that council. They may approach that by a different regulatory regime, provided that it has suitable terms, so I do not consider that we can go immediately to that.

Reference was made by the noble Lord, Lord Kerslake, to the Manchester Arena review. I appreciate his direct involvement in that, and of course we recognise that for the victims and their families, dealing with the media at such a time can be very distressing. In fact, the Government have recently published guidance for victims and their families on handling media attention in the aftermath of similar events, but diverse reports with regard to the media have come out of that. As the noble Lord observed, only one complaint was made to IPSO regarding the conduct of the regulated media at Manchester, and on 24 April 2018 at a meeting of the National Police Chiefs’ Council on media engagement, the senior press officer at Greater Manchester Police observed that after the Manchester Arena bombing, the media had been exceptional and had treated everyone involved with the utmost respect. In her view, the only qualification was in respect of certain international outlets and social media which had caused families problems. There are clearly diverse views—

Data Protection Bill [HL]

Lord Paddick Excerpts

3rd reading (Hansard): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Wednesday 17th January 2018 Lords Chamber

[Lord Swinfen (Con)]

My Lords, can the Minister tell the House at what age the United Nations considers that a child ceases to be a child?

[Lord Paddick (LD)]

My Lords, Clause 124(4)(b) refers to the United Nations Convention on the Rights of the Child, which defines a child as a person under the age of 18, so we can assume that that is the working principle. Clause 124, introduced at a previous stage by an amendment from the noble Baroness, Lady Kidron, talks about age-appropriate design, and so presumably that means appropriate at different ages—for example, safeguards for those aged 12 will be different from those for people aged 16 and 18. Bearing in mind the United Nations convention definition, will the Minister confirm that that is the working principle for this Bill?

[Lord Stevenson of Balmacara]

My Lords, I do not wish to detain the House. I thank the noble Baroness for raising the point; clarity is always important, as we have learned, and she is right to put her finger on it. However, the point made by the noble Lord, Lord Paddick, is correct.

We run the risk in this Bill of pouring fuel on an already raging fire: the more we try to focus on children as a group, the more we demonise and make difficult the Bill’s attempts—through an amendment we all supported on Report—to raise our sights and find a way of expressing how all people are dealt with in terms of internet access, with particular reference to those with developmental or other support needs to whom the word “child” could well be applied. But that does not mean that we want the more generic approach to fail because it did not mention vulnerable adults, the elderly who may be struggling with internet issues, those with special needs or others. These groups all need to be considered in the right way, and I am sure that, in time, “age appropriate” may not be the most appropriate way of dealing with it. It does get us to a particular point, however. It was a historic decision that we took on Report to do it this way, but we need to have an eye on the much wider case for a better understanding of under what conditions and with what impact those of us who wish to use the internet can do so safely and securely.

Data Protection Bill [HL]

Lord Paddick Excerpts

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

Tabled by

[Lord Paddick]

118A: After Clause 125, in subsection (4), after “if” insert “and for so long as”

[Lord Paddick (LD)]

My Lords, we are very grateful to the Government for introducing Amendment 118. We still believe that they could and should have gone further. Taking the example of the Investigatory Powers Act 2016—the fact that Ministers are unable to authorise interception without oversight by an independent judicial commissioner of that decision—we wonder why that sort of oversight could not be applied to these certificates as well. Clearly, we are grateful to the Government for going as far as they have done. We are just disappointed that they did not go as far as we wanted.

[Lord Stevenson of Balmacara]

My Lords, my noble friend Lord Kennedy is not available at the moment. He is occupied with a personal matter and has asked me to say that he supports the words of the Minister. She has listened to concerns. It is very welcome that she has done so and we agree with the amendment.

--- Later in debate ---

[Baroness Kennedy of The Shaws (Lab)]

My Lords, it is such a relief to hear the noble Lord, Lord Pannick, admit to the House, as he did at the beginning of his speech, that he sometimes loses a case. In fact, even as a meagre lawyer, I enjoyed success over him on an occasion in the European Court of Justice. However, it is disingenuous of the noble Lord to say that we should wait to hear whether the Government intend to do anything about Leveson part 2. We know that that is not the intention of government. The dragging of feet on all this has made it very clear that the Government do not want to fall out with their friends in the press or to lose the editorial support they get from sections of the press. We should be very clear that it is not likely to happen with the current Government.

I have great sympathy for the noble Baroness, Lady Hollins, and what she is saying, because I share the concern that not all these lessons have been learned. There are ways in which we already see reluctance by those who are now seen as having authority to hold the press to account to take action. Therefore, I do not share the concern that this amendment is unlawful. I do not believe that premise is true and I think that it will be tested in the courts. The noble Lord, Lord Pannick, who often represents the press, may end up representing newspapers as opposed to individuals who have suffered transgressions. I support the amendment of the noble Baroness, Lady Hollins, as I have seen too much of this bad behaviour going on.

Unlike the noble Lord, Lord Pannick, I am a criminal lawyer and I have seen the ways in which the police have leaked information. I am afraid that I have also seen bad behaviour on the part of police officers in divulging information to the press. Concerns have often been raised that there may be what used to be called “a drink in it” for subverting the proper processes by which high standards are maintained. Therefore, I do not share the confidence of the noble Lord, Lord Pannick, that everything will be fine as the measure runs through. I still feel that the press has lessons to learn. I hope that we listened to what the noble Baroness, Lady Hollins, had to say.

[Lord Paddick]

My Lords, I declare an interest. When I was a commander in the Metropolitan Police service, my personal details—this was in breach of data protection—were secured by Mulcaire, the private detective employed by a newspaper. This was discovered by the Metropolitan Police in 2002, but I was not told about it until 2010, when the Guardian alerted my lawyers to the fact that this had taken place. However, in the course of what subsequently transpired, I was shown an internal memorandum of the Metropolitan Police service, which showed that in 2002 it was aware that my phone and that of the then Deputy Prime Minister had been hacked into, and it never informed me of that. Therefore, noble Lords will understand that I should declare that personal interest.

However, I want to tell the following story to the House. I went with the family of Milly Dowler to see the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition to talk about the family’s experience. Noble Lords will recall that Milly Dowler went missing, was kidnapped and murdered, and that her family kept trying to call her mobile telephone. However, the phone relayed the message that the voicemail box for that number was full. Therefore, the family was losing hope that she might still be alive. Then they tried to phone again and found that some of the messages had been listened to. That gave them hope that she might still be alive. However, it transpired that there was room in that mailbox because journalists had hacked into her voicemail and had listened to some of the messages.

On the evening before the first of those meetings with the then Deputy Prime Minister, Nick Clegg, Milly Dowler’s father was telephoned by Surrey Police to tell him and the family that Surrey Police knew in 2002 that journalists had hacked into Milly Dowler’s voicemail, thereby allowing further messages to be left, as the journalists involved had called the police incident room to tell them that they had illegally hacked into the voicemail. However, it was not until nine years later and the imminent meeting with the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition, that the police felt obliged to tell the Dowler family that they knew from the outset that her phone had been hacked into. They did not offer any explanation for not having taken any action in relation to that illegal hacking into that phone.

These are the sorts of issues involved. This is not just about the conduct of the media. The aim of part 2 of Leveson is to examine the relationship between the police and the media and between politicians and the media, not simply the conduct of the media themselves. That is why we need part 2 of Leveson, and that is why I support Amendment 127A.

[Viscount Hailsham]

My Lords, I will speak briefly, both to the proposed new clause in the amendment moved by the noble Baroness and the proposed new clause moved by my noble friend.

I am against the suggestion that we should have an inquiry. I share the view of the noble Lord, Lord Pannick, that we know enough already. The facts have been canvassed time and time again, in inquiry, in criminal cases and in civil cases, and the time has now come for policy. We do not need new facts—we need a policy decision, and that is essentially a matter for government and Parliament. If we call for a further inquiry, the policy decisions will be postponed. A further point is that, if the proposed new clause is carried, the pressure will be on a judge-led inquiry. In the generality, I am against judge-led inquiries when they address matters of major general policy. Judges are good at identifying facts and deficiencies in existing legislation, but they are not well placed to address general policy issues.

Data Protection Bill [HL]

Lord Paddick Excerpts

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

[Lord Paddick (LD)]

My Lords, I did not intend to speak on these amendments, although we support them from these Benches, but I have to take issue with what the noble Lord, Lord Pannick, said—I think, quoting the noble Lord, Lord Black, from the previous debate—about how we do not need any of this stuff because people can sue the newspapers and achieve redress through those means.

When I was a commander in the Metropolitan Police Service, I was subjected to a kiss and tell story on the front page and eight inside pages of a tabloid newspaper. The story was a mixture of lies and intimate details of my private life and my relationship with somebody I loved and lived with for three and a half years. We broke up in acrimonious circumstances and subsequently he was paid £100,000 by the tabloid newspaper to tell these lies and intimate details of my private life. Thankfully, a group of solicitors and barristers agreed to a conditional fee agreement to pursue the newspaper. However, half way through the preliminaries leading up to the court case, it became apparent that I was unable to secure insurance against losing. Therefore, I was faced with a situation where if I pulled out of the action I would have to pay both sides’ costs—the newspaper’s costs and my own side’s costs because the conditional fee agreement would happen only if the case went to court and I lost—and could have lost my home.

The point is that there are many ordinary people, less high-profile than even I was at that time, who cannot get conditional fee agreements. They do not have the means to sue newspapers. Certainly, I would not recommend anybody going through the stress that I was put through by that newspaper and its lawyers, who tried every trick in the book to try to get us to fold before the court case happened. As it happens, two weeks before the case was due to be heard, they agreed to settle, although they claimed that it was not on the grounds of a breach of privacy but because everything that had been printed in the newspaper was untrue.

For noble Lords to say that there are sufficient safeguards at the moment for ordinary people to take the newspapers to court is, in my respectful submission, completely untrue.

[Lord Pannick]

I am very sorry to hear about the noble Lord’s personal experience and of course I accept everything he says. But will he accept that hundreds of people have brought legal proceedings against national newspaper groups for their wrongful, unlawful action in accessing personal data—for example, by listening to their mobile telephone calls—and publishing articles in consequence of that, and they have recovered very substantial damages, and rightly so, against those newspapers?

[Lord Paddick]

I completely accept what the noble Lord says but there are many hundreds, if not thousands, of other ordinary people who have not been able to claim redress for the wrongs that have been meted out to them by the press.

[Lord Berkeley of Knighton]

This is not simply about money; it is what it does to your reputation. That is much more important than money.

[Lord Paddick]

I am grateful for the noble Lord’s intervention. Obviously, despite the fact that we won the court case in the end and that there was a small apology in the said newspaper—I think it was on page 6—I was not able to recover the serious damage done to my reputation. I am grateful to be standing here in the House today to address noble Lords on this issue, but there are many people whose reputations have not recovered.

[Lord Blencathra]

Perhaps I may give the noble Lord some information which he may not have been aware of, as he may have left the Met by then. The reason that maybe up to 100 people were able to sue on the hacking was because their names appeared in the Mulcaire diaries, and the Met team kindly went and told every single person who had possibly been hacked, “They’re after you. You’re in Mulcaire’s diaries and you may care to contact some lawyers. Here are some lawyers who are doing a group action. If you join that, there is no great risk to yourself—you will be in there with a lot of others. The lawyers will be there on a no-win no-fee basis and you’re perfectly safe to do it”. That is why most of those people were able to go together in a joint action, but the thousands of individuals do not have a hope.

Video Games: Domestic Violence and Child Abuse

Lord Paddick Excerpts

Wednesday 6th December 2017 Lords Chamber

[Lord Ashton of Hyde]

I do not agree with the noble Baroness and I see no evidence that this body is not doing its job. It classified the age for 146 out of 498 video games in 2016 as 18, meaning that only adults should be allowed to watch them and that it is a criminal offence to allow other people below that age to do so.

[Lord Paddick (LD)]

My Lords, does the Minister not agree that any depiction of child abuse is likely to normalise that behaviour, not just in the minds of children who are less likely to report it, but also in those of potential perpetrators? Does he not agree that if no video game has ever been banned, something really needs to be done about this so-called independent body that is supposed to be taking action?

Data Protection Bill [HL]

Lord Paddick Excerpts

Committee: 5th sitting (Hansard): House of Lords
Monday 20th November 2017 Lords Chamber

Moved by

[Lord Paddick]

153: After Clause 114, insert the following new Clause—
“Function of the Commissioner to maintain a register of data controllers
(1) The Commissioner must maintain a register of all data controllers.(2) Subject to subsection (3), personal data must not be processed unless an entry in respect of the data controller is included in the register maintained by the Commissioner under subsection (1).(3) Subsections (1) and (2) do not apply in relation to any processing whose sole purpose is the maintenance of a public register.”

[Lord Paddick (LD)]

My Lords, I will speak to Amendment 153 in my name and that of my noble friend Lord Clement-Jones. Section 17(1) of the Data Protection Act 1998 states that personal data must not be processed unless an entry in respect of the data controller is included in the register maintained by the Information Commissioner. Effectively, processing personal data without registering and without paying a fee is, at the moment, a strict liability criminal offence. This ensures that all data controllers are aware of their most basic obligations and that a central register of who is processing personal data is maintained. It also provides a simple means of collecting notification fee income.

We have been made acutely aware during the debates on the passage of the Bill of the increased responsibilities that will be placed on the Information Commissioner and the need for her to have additional resources. This is one way of ensuring that she has those resources, provided she is able to keep the fees raised and does not have to hand over large amounts of those fees to the Treasury.

This is an important protection for data subjects, and the Government have asserted that they are strengthening the law to protect data subjects. If the requirement to register is removed, as will happen without this amendment, this will weaken those protections. In addition to protections provided by registration and the increased awareness of the other requirements around data protection as a result of registering, it allows for the Proceeds of Crime Act to be used to confiscate money generated by the unlawful processing of personal data by those who are not registered. This would be lost if this amendment is not adopted.

The amendment seeks to maintain the current position by requiring the Information Commissioner to register all data controllers. However, unlike the current requirement for more detailed information, the amendment requires that the data controller provides only the minimum of information—such as his name and address; if he has nominated a representative for the purposes of the Act, their name and address; and the principal activity or activities undertaken by the data controller.

The Minister may wish to pray in aid article 57(3) of the GDPR, which states:

“The performance of the tasks of each supervisory authority shall be free of charge for the data subject and, where applicable, for the data protection officer”.


We argue that this is a notification fee, not a task performed by the Information Commissioner, and a fee that would be levied on the data controller and not the data protection officer. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I shall speak to Amendment 153ZA in my name and that of my noble friend Lord Kennedy of Southwark. I support the amendment tabled by the noble Lords, Lord Clement-Jones and Lord Paddick, which is important. We look forward to hearing what the Minister says in response.

Our amendment is in two halves. The first probes the question of what happens in cases where the data controller relies on derogations or limitations provided for under the GDPR that have been brought, directly or indirectly, into UK law through the existence of the GDPR after 25 May 2018 or through secondary legislation, whichever is appropriate. It asks whether there is a need for a bit more guidance on the commissioner’s duties, in that she may wish to look at the proportionality of such reliance by the data controller—in other words, whether it is appropriate relative to the overall aims and objectives placed on the data by the data controller—and whether it is appropriate under the GDPR or its subsequent limitation or derogation. It also asks whether adequate systems are in place to make sure the rights of data subjects are safeguarded. This may seem to be gold-plating, but it is important to understand better how the mechanics of this works in practice. These are very important issues.

The second part returns to an issue we touched on earlier in Committee, but about which there is still concern. We have again had representations on this issue. The amendment is framed as a probing amendment, but it comes back to familiar territory: what will happen in later stages of the life of the Bill as we leave the EU and are required to make sure our own legislative arrangements are in place? At present, the GDPR has an extraterritorial application so that even when companies are not established in the EU they are bound by the GDPR where they offer goods or services to EU citizens or monitor their behaviour. As well as requiring that lawful processing of data is not excessive, data controllers are required to keep data secure.

So far, so good. The important point is that under the GDPR at present—there is no derogation on this—it is necessary for such companies to make sure they have what is called a representative in the EU. This would be a physical office or body, staffed so that where EU citizens wish to take up issues that affect them, such as whether the data is being properly controlled or whether it has been processed legally, contact can be made directly. But under the Bill as I understand it, and I would be grateful if the Minister could confirm what exactly the situation is, after the applied GDPR comes in the requirement for a company to make sure it has a representative in the UK—in the GDPR, it is for a company to have a representative in the EU—will be dropped. If that is right, even if the operating company is well-respected for its data protection laws or is in good standing as far as the EU is concerned, any individual based in the UK would obviously have much more difficulty if there is no representative, such as in a situation with different foreign laws, where an individual would probably rely on an intermediary who may not see non-nationals as a sufficiently high priority. If things do not work out, the individual may have to have recourse to law in a foreign court. This will make it very difficult to enforce new rights.

Is it right that the Government will not require foreign companies operating in the UK after Brexit to have a representative? If it is, how will they get round these problems? I look forward to hearing what the Minister says on these points.

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[Lord Stevenson of Balmacara]

My Lords, I want to come back to an issue relating to the situation post Brexit: companies operating in the UK, for which a representative will not be required. I listened to the Minister very carefully and I understand what he is saying, but I take it that, post Brexit, he is basically relying on the force of the Information Commissioner’s personality and her ability to maintain her current relationships and build on them. As such, when taking issues abroad, individuals in the UK will not have any statutory provision, as they currently do, but will have to rely on the informal mechanisms the Minister mentioned and their own resources. He has failed to answer the question whether that is a good situation to be in as we progress through the Bill, but I will read what he said more carefully and come back to him later.

[Lord Paddick]

My Lords, I thank the noble Baroness, Lady O’Neill of Bengarve, for her contribution—we will look at that should we bring back the amendment on Report. I also thank the noble Lord, Lord Stevenson of Balmacara, for his support for the amendment.

The Minister said that provision in the 1998 Act requiring all data controllers to be registered was an important part of data protection, yet his argument for not continuing with that seemed to be that it would be difficult to maintain a register with the numbers now involved. Either the register is an important contribution to data protection or it is not. In any event, we should bear in mind that a charge could be levied. The Minister suggested that a register would not be a proportionate use of the Information Commissioner’s resources, but those resources could significantly increase. If the existing law were enforced, it is estimated that an additional £1 billion in income would be possible.

On a detailed central register, I said when introducing the amendment that the detail suggested would be far less than is currently the case. However, we will reflect on what the Minister said. For the moment, I beg leave to withdraw the amendment.

Amendment 153 withdrawn.

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[Lord Ashton of Hyde]

My Lords, I thank the noble Lord for introducing his amendments, which touch on the fees that the Information Commissioner will be able to charge under the new regime. Noble Lords will recall that we discussed similar issues during the passage earlier this year of what became the Digital Economy Act. Perhaps I may start with some of the general points made by the noble Lord and then go on to address his specific amendments. I agree absolutely that this is a bigger issue than just the amendments; it is the question of how the Information Commissioner, to whom we have given these very important duties, will be able to sustain an effective service. I can assure the noble Lord that we are aware of and understand the specific problem he outlined about staff. In fact, I was present at a meeting three or four weeks ago at which we discussed that exact subject. Part of the issue to deal with that will, I hope, be addressed in the near future, in ways that I cannot talk about tonight.

On the noble Lord’s general question as to whether it is an adequate system, we believe that the suggested system is flexible enough to deal with the requirements of the Information Commissioner. We realise that increased burdens will be placed on her; at the moment, I believe that her office has not raised its fees for 18 years. Of course, the number of data controllers has risen, so the rate applies to a greater number of people. We will lay some statutory instruments that will deal with the fees for the Information Commissioner in the near future, so I am sure that we will come back to that.

On the specific amendments the noble Lord has tabled, Clause 129 permits the Information Commissioner to charge a “reasonable fee” when providing services to data controllers and other persons who are not data subjects or data protection officers. This is intended to cover, for example, the cost to the commissioner of providing bespoke training for a data controller. Amendment 161E would place a requirement on the commissioner to publish guidance on what constitutes a “reasonable fee” within three months of Royal Assent. We agree that data controllers and others should know what charges they should expect to pay before they incur them. However, the Government’s view is that this is already provided for through Clause 131, which requires that the commissioner produce and publish guidance about any fees that she proposes to charge for services under Clause 129. As there is already a requirement for the commissioner to publish guidance in advance of setting any fees, the Government do not consider a particular deadline necessary.

Amendment 161F would remove Clause 132(2) completely. I am concerned that the amendment would create ambiguity in an area where clarity is desirable. Clause 132 makes provision for a general charging regime in the absence of a compulsory notification regime like that provided in the 1998 Act. Clause 132(2) clarifies that the regime could require a data controller to pay a charge regardless of whether the Information Commissioner had provided, or would provide, a “service” to that controller. This maintains the approach that is currently in force under the 1998 Act—namely, that most data controllers are required to pay a fee to the commissioner whether or not a service is provided to them—and is intended to meet the costs of regulatory oversight.

The consultation on the new charging regime recently closed and the Government intend, as I said, to bring forward regulations setting out the proposed fees under the new regime early in the new year. No final decision has yet been taken in relation to those fees, but, as I committed to during the passage of what became the Digital Economy Act, charges will continue to be based on the principle of full cost recovery and, in line with the current model, fee levels will be determined by the size and turnover of an organisation but will also take account of the volume of personal data being processed by the organisation. That partly addresses the point made by the noble Lord.

Amendment 161G addresses a concern raised by the Delegated Powers and Regulatory Reform Committee that the fees regime established by Clause 132 should not raise excess funds beyond what is required to cover the costs of running the Information Commissioner’s Office. I must confess to a sense of déjà vu; we debated a very similar amendment in the Digital Economy Act. The Government are considering their response to the committee’s report, but they remain concerned that there should be sufficient flexibility within the new fees regime to cover the additional functions that the commissioner will be taking on under the new regime and any other changes that may be dictated by operational experience, once the new regime has bedded in. Indeed, if anything, the merit of having some limited flexibility in this regard is even clearer now than it was in March when we debated the Digital Economy Act.

I confirm once again that charges will be on the basis of full cost recovery. We take on board the point made by the noble Lord, Lord Stevenson, that the commissioner must be able to make sufficient charges to undertake and fulfil the requirements that we are asking of her.

Finally, on Amendment 161H, I can reassure the noble Lord that the Information Commissioner already prepares an annual financial statement, in accordance with paragraph 11 of Schedule 12 to the Bill, which is laid before Parliament. In addition, there may be occasions where the Secretary of State needs up-to-date information on the commissioner’s expenses mid-year—in order, for example, to set a fees regime that neither under-recovers nor over-recovers those costs. That is why Clause 132(5) is constructed as it is.

I hope that I have addressed the noble Lord’s concerns both in general and in particular and that he will feel able not to press his amendments.

[Lord Paddick]

My Lords, I do not know whether I am getting confused here. The Minister referred to Clause 132(2), about the power for the Information Commissioner to require data controllers to pay a charge regardless of whether the commissioner has provided, or proposes to provide, a service to the controller. How can that be done if there is to be no requirement for data controllers to register with her?

[Lord Ashton of Hyde]

There is a duty for data controllers to pay a charge to the Information Commissioner in the same way as there is a duty today for data controllers to register with the Information Commissioner. The duty applies in both circumstances. In some cases, some data controllers do not register with the Information Commissioner—they are wrong not to do so, but they do not. In the same way, it is possible that some data controllers may not pay the charge that they should. In both cases, in today’s regime and that proposed, there is a duty on data controllers to perform the correct function that they are meant to perform. Controllers do not all register with the Information Commissioner today, although they should, and may not pay their charges. Under the new regime, they should, and an enforcement penalty is able to be levied if they do not.