Fighting Fraud (Fraud Act 2006 and Digital Fraud Committee Report)

Viscount Colville of Culross Excerpts

Friday 30th June 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I was a member of the Fraud Act 2006 and Digital Fraud Committee, and it was a great privilege to serve with the noble Baroness, Lady Morgan, who so ably chaired it.

The committee was driven by the massive increase in fraud. We discovered that scams are being delivered not only online but through text and messaging services, using ever more sophisticated technology. The new threat is coming from deepfake technology. Only a few weeks ago, a video appeared on Facebook that seemed to be a CNN report, with the CNN logo strapped across the base of the screen. Regional executives of a major bank appeared the video promoting what appeared to be one of their big new funds. They were followed by a succession of customers who said that they had made up to £50,000 each by investing in the fund. The user was then urged to click on a link that facilitated investment into the fund but needed the user’s bank details to do so. Once fraudsters have this information, they can impersonate the user to take out a loan, make a purchase or do any number of fraudulent financial transactions.

The deepfake fraud is just the most up-to-date example of ID fraud. This is one of the first scams to use deepfake technology. The bank executives’ images and voices had been captured from their previous appearances on television and in videos and manipulated to make them appear to be pushing the fund. The bank had a terrible time trying to stop the dissemination of this fraudulent content. It had to play a terrible game of whack-a-mole. As soon as was it was taken down from one Facebook group, it appeared on another. It also appeared in other parts of the internet and went viral on platforms and phone services. Deepfakes are just the latest generation of scams. They are so powerful because the visual medium is still seen as more trustworthy than others. The bank is so concerned that any future video appearances by executives will have to be stamped with a watermark on screen as a means of authentication, which it hopes will make future manipulation of their images more difficult.

The Online Safety Bill will put the onus on user-to-user services to prevent fraudulent content appearing on their platforms, but the growing practice of smishing—sending fraudulent messages to collect personal financial information through text and direct messages—is also worrying law enforcement officers. These scams are increasingly disseminated on SMS and MMS platforms, and so are out of scope of the Online Safety Bill. According to CIFAS, 2022 saw the highest-ever volume of identity fraud cases. They were up by nearly one-quarter from the previous year. Nearly all the cases related to mobile phone products.

In the committee hearings we heard evidence of how criminals are frighteningly ingenious at finding ways to capture a user’s ID, both online and on mobile phones. The fraudsters send messages which often seem innocent enough, such as completing a crossword puzzle or taking part in a survey, all of which involve the user giving away their personal financial details. I recently heard about a victim who received an SMS message giving details of an expected delivery from DHL. When they called the number, they were put through to a fraudulent call centre, which asked for money to be paid for customs duty in order to release the package through Customs and Excise. Fraudsters are even using ID impersonation to break the secure customer authentication service which was set up especially by the banks as a secondary source of verification. They do this by diverting the message which is meant to go to a customer’s number and then take control of it.

CIFAS told me that in the past 12 months, there has been a rise in cybercrime service platforms on the dark web. One of these sites is selling up to 30,000 fake profiles, which can be used to push fraud, at a time. The whole fraud ecosystem is incredibly sophisticated. There are specialist roles for each stage of the fraud. First, there is a fraudster specialising in stealing ID, then another who uses the information to open bank accounts and set up customer profiles, and finally there is a specialist who can siphon off the money to the criminal. It seems to me that the major way of dealing with this is to incentivise platforms and telecoms companies, which are the enablers, to crack down on fraudulent activity online. I wholeheartedly support the attempts by the noble Baroness, Morgan, to extend the “failure to prevent” law to cover more enterprises and more harms but, despite wins on Report on the Economic Crime and Corporate Transparency Bill this week, the Government still seem reluctant to adopt the ideas in her amendments.

I have already mentioned the Online Safety Bill, which leaves so many of the systems which deliver fraud out of scope. Like the noble Baroness, Lady Morgan, I would like to see telecoms companies being held to account. They have already taken some steps to reduce fraud. The committee heard evidence about BT’s spam shield, which is blocking spam messages to users. SIM farms, where a mass of phone numbers can be bought to be used to send fraudulent text messages to tens of thousands of customers, are now being clamped down on but, as the committee’s report states, these current approaches by the telecoms sector are uneven, with counterfraud policies being introduced inconsistently across the sector.

It seems to me that the enabler of the fraud ought to be held responsible, at least in part. The banks are paving the way. The Payment Systems Regulator is already changing the liability for banks whose customers have been involved in fraud. It has set out a path for introducing a 50:50 split between the issuing banks and the bank that accepts the funds on behalf of the fraudster. In July it will consult on the draft legal instruments to put reimbursement requirements in place. The following month, it will consult on the maximum level of reimbursement and guidance on customer gross negligence. By October it hopes to get the final legal instruments to Pay.UK. Early next year, these measures will come into force. The regulator will also demand transparency, the publication of data on how well banks are protecting customers from fraud and the promotion of intelligence sharing.

The telecom companies are also enablers. Either they can take part in a compensation scheme along the lines of the banks or they can, as paragraph 522 of this report suggests, be part of a

“regulatory strategy equivalent to the Online Safety Bill that is directly applicable to telecoms platforms and services”.

In their response to the report, the Government said that, despite progress being made by the industry, more could be done to protect the customers. Instead of supporting a duty to prevent fraud, they suggest that the operators join the voluntary telecoms fraud sector charter. The Government have spent much time ensuring that online platforms are mandated to protect users against fraud. In a world in which fraud is now being delivered increasingly through direct messaging and SMS, why is one sector being mandated to take action while another is allowed to take part in counterfraud action voluntarily?

Security Threat to UK-based Journalists

Viscount Colville of Culross Excerpts

Tuesday 21st February 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer of a made-for-television series about the war in Ukraine. Like other noble Lords, I am appalled to hear about the many kidnap and death threats against journalists in this country for holding the Iranian regime to account. I gather that there were many more than 15. They include journalists in the BBC Persian service, as the noble Baroness, Lady Bonham-Carter, said, who have also been sanctioned and their families in Iran threatened. What plans do the British Government have to continue to raise the issue at the United Nations Human Rights Council in order to bring together an international coalition to put pressure on the Iranian regime to stop these attacks?

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord’s question is really more for the Foreign, Commonwealth and Development Office, but I will make sure that it is reflected back to my colleagues in that department. I would imagine that extensive conversations and negotiations are ongoing on this subject.

Public Order Bill

Viscount Colville of Culross Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, if I had to choose between the two amendments, I would choose Amendment 127A. It is quite important to understand why it is the better version. It is because, as the noble Baroness, Lady Chakrabarti, said, it not only covers the way the police exercise their powers, which is the main target of Amendment 117, but extends to people who are observing the protest itself. That is a very important and significant extension. The way the protest is proceeding is all part of the background against which the other part of the amendment has to be judged, so the broadening in Amendment 127A is rather important.

Another point worth noting is that neither of these amendments uses the word “journalist” in the main text. That is important too: protection is extended to allow other people, for whatever reason, to carry out the exercises referred to. To narrow this down to journalists, which neither amendment seeks to do, would be a mistake. It has to broadened out in the way that both do.

As I have said, however, my main reason for intervening was to explain why I would choose Amendment 127A if I had to choose between the two amendments.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer making a television series on Ukraine.

I was very moved by the speech of my noble friend Lady Boycott and the dedication to journalism that she has shown. I support both Amendment 117 and Amendment 127A. As a television journalist who has reported on protests across the country and the world, I have experienced protesters being suspicious of journalists for fear that their footage would be used by the police to identify and arrest people at a later date. As a result, I have been attacked by protesters and my cameramen have had their cameras grabbed and attempts made to take the tapes or cards.

In many of these cases, particularly in this country, the police have been there to protect us journalists and allow us to do our work reporting on demonstrations, so I am appalled and surprised to hear from my noble friend Lady Boycott that, in recent years, the police in this country have been arresting journalists for doing their job: filming protests. I thought that ECHR Article 10 on the right to freedom of speech would be incentive enough for the police to leave them alone, but clearly not.

This amendment therefore seems necessary to protect journalists going about their business, reporting on protests and the disruptions that they may cause. The problem is that the powers in Clause 2 on locking on seem to be so broadly drawn. It is one thing to arrest people for locking on, but to arrest someone for carrying an object

“with the intention that it may be used”

in connection with that offence seems to give the police power that cannot be right in a democracy. I fear that the words will give them leeway to stop a journalist who is carrying a camera to film the lock-on. Surely even the threat of this happening cannot be allowed. It will have a chilling effect on free speech.

I understand that the police want to be able to arrest protesters who are locking on and filming themselves while doing it, but the wording in this amendment, that

“A constable may not exercise any police power for the principal purpose of preventing … reporting”,


may be an important protection for camera people and journalists covering protests. It protects bona fide journalists.

Clause 11, allowing

“stop and search without suspicion”

in an area near a protest seems to stand against everything I thought Conservatives represented. I always thought it was a driving force behind Conservatism that they wanted to take the state off the backs of individuals. This clause does the opposite. When I talk to people about the possibility of their being stopped without suspicion just because they unwittingly wandered near to a protest, they are aghast. When this possibility is extended to journalists being stopped for going about their business, the threat against free speech posed by this Bill is compounded.

The Government are usually eager to protect journalists and journalism. I suggest to the Minister that, by accepting this amendment he will be striking an important blow for freedom of speech, which is so sorely missing in much of the Bill.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, I had no intention of speaking on this amendment, but I feel I must, because my late husband, Philip Bassett, was an industrial journalist who covered many strikes, most significantly, I suppose, given what we are discussing, the miners’ strike, which the whole team of industrial journalists on the Financial Times covered. If this legislation stands the way the Government have drafted it, people like my late husband, and indeed the team with whom he worked, which included the very eminent journalist, John Lloyd, would have been open to prosecution. As it is, for their coverage of the miners’ strike they won journalist of the year.

Queen’s Speech

Viscount Colville of Culross Excerpts

Thursday 12th May 2022 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I rise to point out the essential contradiction in the Government’s media and digital legislation.

I welcome the Online Safety Bill and look forward to its arrival in this Chamber in the autumn. I am a great supporter of its emphasis on the duty of care to be placed on digital platforms to ensure that they dramatically reduce the dissemination of hate and disinformation online. This will help combat the polarisation and fracturing across our society that has been facilitated, and even generated, for a decade and a half by the platforms’ “attention economy” business model, which is designed to engage and enrage users.

However, the Government need to complement this legislation with massive support for the great institutions that not only combat polarisation with their universality of content but refute disinformation with a mandate to tell the truth: British public service broadcasters. Much of the media Bill and the Government’s Up Next broadcasting White Paper, however, will weaken these bulwarks of the battle for an open society in the digital age.

Like the authors of the Online Safety Bill, I hope it will be a world-beating piece of legislation—a model for other countries to follow. The Government’s acceptance of so many recommendations from the Joint Committee has improved it yet further. However, I fear it still holds a threat to free speech with the vague terms of the clause on

“priority content that … presents a material risk of significant harm to an appreciable number of adults”.

It allows the Secretary of State, in consultation with Ofcom, to use regulations to update the definition of harmful content. As the noble Lord, Lord Stevenson, said, this gives the Minister enormous power to control content that many people would see as offensive but may be part of the debate in a lively democracy. In the aggressive culture wars that divide the western world, it is important not to close down content just because it is offensive. Likewise, the carve-out for journalism is welcome, but it includes content

“generated for the purposes of journalism”.

This might need to be refined or it will allow all users to claim exemption as journalists. Perhaps a public interest defence could be included, as in the Defamation Act.

This legislation needs to go hand in hand with the rapid granting of statutory powers to the new Digital Markets Unit, so I am glad to read the Government’s response to A New Pro-Competition Regime for Digital Markets and the draft digital markets, competition and consumer Bill. The DMU was set up over a year ago after an excoriating report by the Digital Markets Taskforce, which found that the dominance of the big platforms had led to an appalling lack of competition in many digital markets.

The new draft legislation has excellent proposals to enforce binding codes of conduct on large platforms to prevent them crowding out competition. This will be crucial in breaking open the shocking monopolies in the digital advertising market, uncovered by the Digital Markets Taskforce, and will allow news publishers to be paid for their content, giving a much-needed boost to our national and regional legacy media. However, it is only draft legislation. The DMU needs to be empowered to fight for competition online as soon as possible. Every week delayed means that another digital start-up is stifled. Can the Minister tell the House when the Government intend to go beyond the draft Bill and introduce legislation?

These two pieces of legislation on the digital economy will go far in controlling polarisation and disinformation on the internet, but I fear that they are not reinforced by the Government’s media agenda. The Government claim that the reforms suggested for the BBC and Channel 4 in the Up Next White Paper and the media Bill will help make them fit for the digital age. Many of the reforms are welcome. The new prominence regime will ensure that PSB content is easy to find on designated platforms; it has long been called for by the industry. Equally welcome is the regulatory level playing field set out in the Bill for video-on-demand platforms. I look forward to supporting the Government in these important updates to the media regime.

However, I fear that many of the other reforms will damage the power and importance of publicly owned PSBs. The media Bill’s prime purpose is to privatise Channel 4. The central issue is its remit for programming content. The Minister for Digital Infrastructure, Julia Lopez, has promised that the channel’s programming under private owners will remain experimental and innovative and provide news and current affairs, which are central to the role of PSBs in the internet age.

Investigative journalism, however, is risky and expensive to produce. Programmes such as Channel 4’s “Dispatches” and “Unreported World”, as well as the hour-long news in prime time, must be preserved by the new owners. Noble Lords have only to look at the schedules of the commercial PSBs to see that shareholders’ demands mean that content is safe and guaranteed to reach a big audience. In the interest of universality, it is important that the core programming remit includes news and current affairs, shown on the main channel. I worry that, in offering

“our public service broadcasters more flexibility in terms of how they deliver their obligations”,

the White Paper will allow them to hive off public service programmes to obscure digital channels.

The Up Next White Paper will require the new owners to commission a minimal volume of programming from independent producers, especially in the regions and nations. As pointed out by the noble Baroness, Lady Bonham-Carter, there is a big danger that that remit will be reduced to make the channel more attractive to new buyers. As the noble Baroness also said, there has to be a remit for spending on training in the industry, which is crying out for skilled workers. How does this fit in with the Government’s levelling-up agenda?

Likewise, the Government say they are supporting the BBC, the essential mission of which is to provide universal, available and reliable information; yet, after 30% cuts over the last 10 years and a 2% freeze in the licence fee, this measure can only further damage the corporation’s core mission. The BBC is at a tipping point, where it just does not have the money to provide an eclectic enough range of content to be universal. I urge the Government to ensure that the BBC is put on the firmest financial footing, so that it remains a British beacon of reliable content in the rough seas of the internet. This country deserves an internet bound by a duty of care to its users and complemented by the PSB sector, which should be dedicated to giving reliable information and education to all the people of Britain and of the world.

Police, Crime, Sentencing and Courts Bill

Viscount Colville of Culross Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Coaker (Lab)]

Whatever: they will have been on various demonstrations. Whether they were on behalf of the Countryside Alliance or not, the principle would have been the same and noise would have been a part of them. Has democracy collapsed in the face of noisy protests over the last couple of centuries? It has not. At some of the protests that I have been on—and, I am sure, at those that many noble Lords have been on—the noise has been phenomenal. It has been part of the object of them. Never have any Government of any colour sought to ban protests on the basis of noise or to put conditions on the basis of noise.

Protests are noisy—whether it is local families protesting the closure of a leisure centre or a march in front of this Parliament, protests make noise. The more well attended a protest is, the more popular support an issue has, in general, the noisier it will be. These clauses do not restrict protests for being violent or out of control or for causing damage; these are peaceful protests, but they can be restricted because somebody, in someone’s mind, is too noisy. The clause provides that a protest can trigger these conditions if the noise generated might cause

“serious unease, alarm or distress”.

It is an exceptionally low and vague threshold, as many noble Lords pointed out in Committee.

The Government have sought to do something about that. They have recognised it and thought, “This is a bit of a problem; they are quite right about some of the vagueness of this and about some of the definitions”, so the Government have brought forward a series of amendments, which are in this group. Without reading this to noble Lords—because they can read it for themselves—we can look at proposed new subsection (2ZC) in government Amendment 116, I will just leave this open and hanging in the air. If that clarifies what “noisy” means in the context of a protest, when it talks about people connected to organisations in the vicinity,

“not being reasonably able, for a prolonged period of time, to carry on”

their activities, the courts are going to have a field day. That is the clarification; that is the way in which the Government seek to do something about it. Even the Government recognise that vagueness is a problem. They are trying to do something about vagueness with a clarification that is equally vague, but which allows them to say that they have tried to address the problems raised in Committee.

Of course, the Government always have to balance protests with the rights of people to go about their lawful business. Balance is always important, but the right to protest in this country has never, ever had to have a condition placed upon it that is about noise. It never has. The noise generated at protests that I have been on has been immense, but never have the Government turned round or panicked and said that they needed to impose conditions on that in some way in order to do something about the protests. These are very serious amendments that we have put forward. These are very serious debates that will take place from now on, on the existing clauses and then on the new clauses. They involve the fundamental right of people to protest. Making noise is a fundamental part of the freedom to protest properly in a democracy.

[Viscount Colville of Culross (CB)]

My Lords, I also put my name to Amendments 115 and 123, because I am still concerned about the Minister’s assurance in Committee on Clauses 56 and 57 that the threshold for the police to impose these conditions on noise would be very high. However, the threshold in Clause 56(3) that the noise caused by protesters could cause reasonably firm people to suffer serious unease seems subjective, and a low threshold. I fear that it will put the police in an invidious position.

I refer the House to the JCHR report recommendations on these clauses. It says:

“Using multiple terms that are open to wide interpretation, such as ‘intensity’ and ‘serious unease’, leaves an excessive degree of judgment in the hands of a police officer … It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.”


I urge your Lordships to support Amendments 115 and 123.

--- Later in debate ---

Moved by

[Viscount Colville of Culross]

133A: Clause 59, page 54, line 12, at end insert “unless permission for such obstruction has been given by the relevant person”

[Viscount Colville of Culross (CB)]

My Lords, I hope we are all refreshed after that break, particularly the Minister. I thank her for giving the time and energy to meet me last week to consider my objections to Clause 59.

I have brought Amendments 133A and 133B before the House because Clause 59 has been too tightly drawn. It will prohibit large, peaceful and well-organised demonstrations taking place in Parliament Square at any time, even at the weekend, if there was any danger that the weight of numbers would obstruct a vehicle going into Parliament or even, in the words of the clause, make

“the passage of a vehicle more difficult”.

Parliament Square is the temple of protest. It is where the people of this country have gathered for centuries to voice their opposition to government policies, hoping their concerns will penetrate the walls of Parliament. In 2002, more than 400,000 people attended the countryside march. In 2018 and 2019, millions came to the People’s Vote and Brexit day celebration marches, and the women’s march drew thousands to support women’s rights. All ended with massed but organised protests in Parliament Square, all of which, by dint of huge numbers, will have obstructed the vehicle entrances to Parliament. I ask your Lordships to imagine the fury on all sides of the country if these were banned in future.

This is the mother of parliaments, outside which voters should gather to speak truth to power and where we, the parliamentarians who make the law, should hear them loud and clear. At this time, when politicians are seen to be out of touch with the feelings of the people, it is unconscionable that the House should pass a law shielding us from hearing what they have to say. A new poll shows that 79% of people disapprove of a ban, and 75% of them are Conservative voters.

The problem is that Clause 59, as with so much of Part 3 on public order, has been drafted to deal with the headlines about Extinction Rebellion and Insulate Britain deliberately blocking roads and bridges across the country and deliberately obstructing access to Parliament. The drafters have not considered the effect of the clause on large, peaceful protests outside Parliament.

I feel sure that many noble Lords have held protests outside Parliament and understand that permission first needs to be obtained from the GLA and the police. As it stands, the clause will make it impossible for the GLA, which controls the garden at the centre of Parliament Square, to give permission for any protest to take place if there is a danger of obstruction to Parliament by large numbers of protesters. The clause expands the controlled area beyond the garden to the roads and pavements of Parliament Square and half way up Whitehall, to the entrance of Downing Street. When granting permission, the GLA will now have to consider whether numbers of protesters will spill off the garden on to the road. The GLA considers 5,000 people to be the capacity of the garden. Any more will block the roads around Parliament Square.

These amendments are aimed purely at the permissions process between the GLA, other responsible bodies and the organisers of a protest. They are based on the existing wording granting the use of amplifying equipment in the square. They will ensure that large, peaceful protests continue to take place outside Parliament. I know that noble Lords will be worried that the wording of my amendments appears to give permission to protesters to obstruct vehicles; this is not the case. The police will still be involved in the consent process, requiring protesters to move on if they are deliberately blocking entrances to Parliament. Proposed new subsection (6) in Amendment 133B reinforces this by allowing the responsible person to withdraw an authorisation for a protest if the conditions are not being observed.

The Government and the Joint Committee on Human Rights are concerned that the police do not have powers to move on demonstrators who deliberately block access to Parliament. Even if these amendments are accepted, the powers granted in Clause 59 will still be available for the police to exercise. I urge the Minister to accept my amendments to ensure that Clause 59 does not cause an unintended ban on protests in Parliament Square. I know from talking to her that she does not want to become the Minister who bans protests outside Parliament. I beg to move.

[Lord Paddick (LD)]

My Lords, we support all the non-government amendments in this group. In particular, we agree that, just as protesters can be given permission to use amplification equipment in the vicinity of Parliament under existing legislation, large demonstrations should be able to block roads temporarily, given the necessary permission. We will vote for Amendments 133A and 133B should the noble Viscount, Lord Colville of Culross, divide the House.

In Committee, I spoke at length on why we oppose this clause and support Amendment 137A. I refer noble Lords to the Official Report.

--- Later in debate ---

This House plays a vital role as a revising Chamber, but Amendments 134, 135 and 140 adopt rather a blunderbuss approach to these clauses, simply seeking to strike them wholesale from the Bill. Were these amendments to be agreed by noble Lords, the effect would be to send a signal that it was acceptable to prevent noble Lords accessing this place and that your Lordships’ House did not support well-argued recommendations from the Law Commission to simplify and clarify the law. I invite noble Lords to reject Amendments 134, 135 and 140 and support the government amendments. On Amendments 133A and 133B, I hope that I have been able to persuade the noble Viscount, Lord Colville, that it will still very much be possible for protests to take place in the vicinity of Parliament—as it should be—and that he will withdraw his amendment.

[Viscount Colville of Culross (CB)]

I thank those from all over the House who have supported this amendment. I hope the Minister will listen very carefully to the concerns of the noble Baroness, Lady Altmann, about the sort of example we are setting to the refugees from Hong Kong, for instance.

I have listened very carefully to the words of the Minister who claims that this clause will not cause any problems for giving permission for large protests on Parliament Square. The lawyers I have talked to have said that the GLA will, under the by-law, particularly since it is now having to look at this extended area around the garden, have to take into account the sheer numbers and the effect of those numbers on obstructing vehicles. If there are half a million people taking part in a protest, inevitably they are going to obstruct vehicles, whether they mean to or not—of course they are. The GLA, I suppose, could cordon off the whole garden so that protesters could not go on to it, but it would make a bit of a nonsense and I do not think that is what the people of this country would want. Therefore, I would still like this amendment to be part of the Bill and I therefore want to test the opinion of the House.

--- Later in debate ---

Moved by

[Viscount Colville of Culross]

133B: Clause 59, page 54, line 32, at end insert—
“(3A) After section 143 insert—“143A Authorisation (1) The responsible person for any land in the Palace of Westminster controlled area may authorise a person to carry out in accordance with this section an activity that will obstruct the passage of a vehicle of any description into or from the Parliamentary Estate while on or adjoining the Palace of Westminster controlled area.(2) An application for the authorisation must be made by or on behalf of the person (or persons) seeking the authorisation.(3) The responsible person may— (a) determine the form in which and the manner in which an application is to be made; (b) specify the information to be provided in connection with an application;(c) require a fee to be paid for determining the application.(4) If an application is made to a responsible person, the person must—(a) determine the application, and(b) give notice in writing to the applicant of the person’s decision within the period of 21 days beginning with the day the person receives the application.(5) The notice must specify—(a) the person or persons authorised (whether by name or description),(b) the nature of the activity that is to be permitted,(c) the period to which the authorisation applies, and(d) any conditions to which the authorisation is subject.(6) The responsible person may at any time withdraw an authorisation if the conditions to which it is subject are not being observed by giving notice in writing to the applicant.””

Police, Crime, Sentencing and Courts Bill

Viscount Colville of Culross Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I may be able to tone down some of the hyperbole. Let’s go back to first principles on what this Bill is about. I think we are all united in this country in support of our right to protest. That is a very precious right that we all feel strongly about. Nobody wants to put that at risk and nobody is trying to put that at risk.

In a world which is becoming more divided, with people having very strong, trenchant positions in the views they adopt, we are trying to ensure that it is possible for people to express their views in a way which does not undermine some of the other social norms in our society which allow us to disagree but be united at the same time. Over the last few years, we have seen a new fashion of protest which is carried out in a way that is unacceptable to other people in its disruption; whether they agree with the matter in question or not is almost irrelevant. We need to try—I believe this is what the Government are trying to do through this Bill—to make it possible for protests to continue in a way which does not divide society further.

I do not support the amendments, but I agree with one point, made earlier by the noble Lord, Lord Dubs. We have to be very careful on the issue of noise. It is impossible for people to protest silently and I will look to the Government for reassurance on that matter when the Minister comes to respond.

Let’s not forget what we are trying to do here: allow people to disagree in a way which does not divide us further. I worry that some of these amendments will perpetuate a division which we do not want to see happen in this country.

[Viscount Colville of Culross (CB)]

I rise to support Amendments 294 and 298 because I believe that Clauses 55 and 56, which introduce noise triggers for public demonstrations and assemblies, are fundamentally undemocratic and will have a detrimental effect on free speech in England and Wales. I apologise that I was not able to speak at Second Reading, but I was unable to attend the House on that day.

I have always thought of the Conservative Party as supporters of free speech, so I am disappointed that this Government seek to take that right away through these clauses. I repeat the quote from Jules Carey that the noble Lord, Lord Dubs, gave that this is

“an existential threat to the right to protest.”

Of course, these clauses are a response to the outrage at BLM, Extinction Rebellion and Insulate Britain protests which have been incredibly disruptive to the lives of thousands of people across the country and especially in London. But the blocking of highways was always illegal under the Highways Act and the existing triggers in the Public Order Act 1986 can be harnessed by the police to control the other protests. The House will debate the new draconian measures the Government plan to introduce later which, as was mentioned at the beginning of today’s Committee debate, seems to be a poor way to treat the House.

The introduction of noise as a criterion for the police limiting or stopping protests and assemblies seems to me an unnecessary and damaging extension of police powers. The factsheet for the Bill promises that the police will use the noise trigger only

“where it is deemed necessary and proportionate.”

But “proportionate” must be subjective as a threshold for the trigger.

Data Protection Bill [HL]

Viscount Colville of Culross Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I am going to deal with my concerns about how the Bill might affect journalism and free speech. I declare my interest as a series producer at ITN Productions.

In the fast-changing world of the digital revolution, it is beholden on noble Lords to be vigilant about the way in which our personal data is now so readily available to so many people to be processed in so many ways, more than many of us ever conceived. I am glad that the GDPR has been brought forward and that this Bill protects further the availability and use of personal information. However, I am concerned that these new privacy rights will be balanced with further limitations on the freedom of the press and the ability of journalists to carry out investigative journalism in the public interest, which I believe was one of the original aims of the Data Protection Act 1998.

At the moment, data protection legislation is being used to control unwelcome exposure of incriminating personal information by journalists. We have seen cases such as that of Prince Moulay v Elaph Publishing, in which the original case for defamation was thrown out as not libellous, only for the Prince to instigate proceedings for the incriminating information against him to be removed from the public sphere using data protection law, despite the intention of the original Act being that there should be an exemption for journalism.

I understand the sentiment behind the “right to be forgotten” clause. Of course, many people want their youthful indiscretions to be forgotten and, for most, it is important that they should be. This concept is based on the Costeja v Google Spain case, which stopped links being made to personal information in search results. However, the courts are now being tested to see whether the original information itself can be suppressed.

In the age of fake news, it has never been more important to be able to go back to source material to check original data against more recent updates and deletions. Noble Lords will have heard of click bait, where sites are specifically set up to shock with false information to attract eyeballs—as they call them in the industry—and make money from the resultant advertising. Noble Lords must not suppress the means to refute such fake news and ascertain the truth.

So I am very pleased that GDPR article 17 has an exemption for publication of data for free speech and the holding of archives in the public interest, further safeguarded in article 89. However, Clause 18, which indeed provides welcome protection for many archives held in the public interest—for instance, those for historical, scientific and statistical purposes—does give protection to cover media archives.

My concern is that past media articles are an important source for verifying information. They might hold reports of criminal convictions of the person or information about a politician’s past which, years later, when they are trying to stand for office, might prove embarrassing but informative for voters. Surely business people, voters and many others should have full access to the information in those archives, whether it is embarrassing or not. This information helps them to shape a fuller profile of the person whose reputation they are trying to assess.

In the digital age, there are millions of opinions, but refuting falsehoods or discovering the truth has never been more difficult. The only way to do that is through source material on trusted websites or archives, where the information has been mediated and checked. I suggest that websites holding archives of trusted media organisations should be protected by and covered in the Bill. The inherent public interest in such archives should be explicitly recognised, as provided in the GDPR.

I am pleased that there is an exemption for data processing for journalism in Schedule 2, part 5, paragraph 24. However, in sub-paragraph (2), there is concern that the exemption applies only when the processing of data is used for journalism. If this information, once it has been gathered for journalism, is subsequently used by the regulators or the police, the use of the word “only” will negate that exemption. I ask the Minister to look at that again.

I am also concerned about the extension of the powers of the ICO prior to publication to examine whether information is exempt from data protection provisions because it is being processed for journalism. GDPR article 6 contains an obligation to consult the Information Commissioner, but Clause 164 goes much further. It enhances the power of the ICO to examine the application of the exemptions for journalism prior to publication and unilaterally second-guess editorial decisions made in respect of the provisions in the Bill.

This means that if a journalist is investigating, for instance, people smugglers, involving undercover filming or subterfuge which is deemed to create a high risk to data subjects, the ICO can intervene prior to publication. The commissioner has the power to apply their objective view to the claim, which might overwrite and disregard the reasonable view of an editor. The ICO might, for example, call for the individual being investigated to be notified in advance that their data is being used, or that they should be given access to additional data being held about them as part of the journalistic investigation.

In my view, this is not even consistent with the terms of journalistic exemption. It would result in investigative journalism being delayed or even stopped until the ICO has examined it for compliance with part of the Act prior to publication. The provision could act as a form of censorship. The existing right of the editor to decide whether the story should go ahead in the public interest will therefore be eroded. I suggest that Clause 164 should be amended to ensure that investigative journalism is not chilled by the extension of powers of intervention by the ICO prior to publication.

Finally, I am concerned that there is no time limit on the right to sue in respect of information processed for special purposes, which continues to be retained or published in the media archive. Under the Defamation Act, that limitation was one year from the date of publication. Under this Bill, there is no limitation. Surely, if information is inaccurate, the complainant should sue within a specific period. The longer the case is delayed from the original publication date, the more difficult it is to refute the allegations. The journalist could move on, contact with the original source material might be lost, memories blurred and notes, even those held digitally, mislaid. Complainants must have the right to complain, but there must be a balance with the time period when that can be done. A failure to have a period of limitation will surely be a chilling effect on the publication of information.

I welcome this Bill as an important advance in protecting privacy in the digital age, but I am concerned that some of its provisions do not yet strike the right balance between privacy and free speech. I ask the Minister to take my concerns seriously.

Investigatory Powers Bill

Viscount Colville of Culross Excerpts

Monday 27th June 2016 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a producer at the BBC. I congratulate the Government on bringing this Bill before the House. Like most noble Lords I recognise that the security services need up-to-date powers in their technological battle against terrorism and criminality, and I am pleased that these extraordinary powers of surveillance will now have judicial control. I am sure that the interception of digital communications will help prevent much terrorism and that many criminals will be convicted using the evidence collected.

However, there is a whole area of information gathering which must be safeguarded by privilege. Noble Lords have spoken about the importance of privileged information between lawyers and their clients and between MPs and their constituents, so it is not surprising that as a journalist I want to put the case for extending the privilege of safeguarding journalists’ sources of information. I look forward very much to the debate in this House on defining what is serious journalism, and who and what information should come under journalistic privilege.

I appreciate that the Government inserted an amendment into the Bill in the other place requiring the judicial commissioner to have regard to the public interest consideration for requests to investigate communications data for a source of journalistic information, but I fear that this privilege is far too specific. It applies only to requests to search directly for “journalistic sources” and from only one power in this Bill: that of communications data. But there are many other powers in the Bill which could directly or indirectly identify a source. I should like the Bill to extend the public interest consideration for any request to access journalists’ data to cover other methods of surveillance, including the accessing of internet connection records and equipment interference, both of which could identify whistleblowers.

I very much appreciate the powers in the Police and Criminal Evidence Act 1984 which allowed notification to journalists and media organisations of requests to access journalists’ notebooks so that they can respond to those requests. I would like the Bill to mirror those powers in some way and to extend that notification to cover some warrants to access journalists’ data so that they and the media organisations can make representations to protect their sources. I know only too well from my own experience and that of colleagues how important it is to guarantee protection for sources when uncovering cases of wrongdoing. I am certain that in many cases we would not have the information unless the sources were convinced that they were safe from having their identity revealed to their bosses or other authorities when reporting cases of wrongdoing.

I have been speaking to a number of my colleagues who have been involved in extraordinary investigations whose publication has shocked the nation and led to changes in the law and policy, and huge reforms to the institutions that have been investigated. Two stand out for me: the “Panorama” investigations by my colleagues at the BBC into Winterbourne View care home and the Medway Secure Training Centre, both of which have been mentioned many time in your Lordships’ House.

Winterbourne View was a care home, commissioned by the NHS and managed by private providers, to care for adults with learning difficulties. The “Panorama” investigation revealed that a lack of leadership led to a regime of barbarity against the patients. I fear that, unless the programme had been broadcast, nothing would have happened to address this abuse. Margaret Flynn in her report on the home said:

“There is no evidence that the written complaints of patients were addressed … managers did not deal with unprofessional practices at Winterbourne View Hospital. Absconding patients, the concerns of their relatives, requests to be removed and escalating self-injurious behaviour were not perceived as evidence of failing service. The documented concerns of whistleblowers made no difference in an unnoticing environment”.

There were 29 contacts with the police and eight incidents of staff violence on patients were reported, with only one prosecution. The police now admit to over reliance on information from hospital management. For years, nothing was done to deal with the underlying abuse. In desperation, whistleblowers went to my colleagues at the BBC. One was later named, but others have not been to this day. Their determination to remain anonymous is not surprising, as they know that they would never work again in the industry if their names were released—but the information they gave meant that, finally, something was done to change the regime and safeguard the patients. During the “Panorama” investigation, whistleblowers were able to build up a relationship of trust with the journalists. That trust was predicated on the conviction that the authorities would not be able to identify who they were.

Likewise, whistleblowers were essential to uncovering the abuse of young men jailed at the Medway Secure Training Centre, run by a private company for the Ministry of Justice. An independent panel to investigate the centre has revealed that over seven years 35 written warnings about the regime at the centre were not acted on by the National Youth Justice Board. Once again, in desperation whistleblowers contacted my colleagues on “Panorama”. Some had previously gone to the authorities to complain and no action had been taken; others contacted the journalists directly. For most of them, and certainly the main whistleblower, whose name is still not known, the only basis on which they went to the journalist was the promise that nobody would ever be able to identify them. Their testimony and the subsequent secret filming revealed a regime of extreme barbarity against the young men at the centre, which brutalised them—the very opposite of what the centre was supposed to do. The mother of one inmate, Billy, said, “My boy is no angel, he is difficult, but this is going to make it worse”.

As a result of the Winterbourne View investigation and others into care and disability units across the country, the Care Quality Commission was reconfigured and the charge of corporate neglect entered our statutes. Safeguards for people in these units have been established across the country. As a result of the Medway exposures there have been parliamentary debates, at least 10 arrests, guards have been suspended and the unit director has resigned. G4S has announced that it is selling off its children’s services and the centre has been nationalised. These cases are proof of the extraordinary role that whistleblowers can play in revealing wrongdoing and changing our country’s landscape. As my colleague Joe Plomin, the journalist behind these stories, told me:

“We threaten the confidence with which whistleblowers contact me at our peril—how will we as journalists prevent the abuse of children or disabled people or others in future where all authorities including the police have allegedly failed, if whistleblowers feel unable to safely, securely contact us? Our democracy, all of our safety depends on people being able to speak to us where all else has failed”.

I ask your Lordships’ House to do everything possible to ensure that this Bill guarantees their secrecy and allows journalists to explain to the judge the public interest reason for that secrecy to be continued. This need is reinforced by the many occasions when the authorities, and especially the police, secretly obtained journalists’ records. The report of the Interception of Communications Commissioner’s Office in 2015 into the use of Chapter II of Part 1 of the Regulation of Investigatory Powers Act to identify journalistic sources showed that police had secretly obtained the phone records of 82 journalists over a three-year period to find confidential sources. It said:

“Generally speaking the police forces did not give the question of necessity, proportionality and collateral intrusion sufficient consideration. They focused on privacy considerations … and did not give due consideration to freedom of speech … The current Home Office Code of Practice (and the recently revised draft Code said to provide protection for sensitive professions) do not provide adequate safeguards to protect journalistic sources or prevent unnecessary or disproportionate intrusions”.

I, like all noble Lords, have the highest regard for our forces of law and order. I am sure that they will think that they have compelling reasons for investigating a journalist’s records, but I would like a judge to decide whether the reasons are in the public interest. It is important that the judge, deciding on a warrant for journalists’ data, should have to notify them so that they can at least put their case for the need for the absolute confidentiality of sources to be maintained.