Data Protection Bill [Lords]

Brendan O'Hara Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 9th May 2018 Commons Chamber

[Bill Wiggin]

No, it is not, because it is designed to ensure that victims get access to justice. My hon. Friend will find the local papers that may come under section 40 are owned by large companies. The exemption is designed for the charitable sector, which I will come to in just a moment.

One myth is that The Guardian would not be covered. The Daily Mail claimed that The Guardian would be exempt from the section 40 provisions, which is not true. The Guardian would not be covered by condition A, which is necessary to protect the not-for-profit publications that cannot afford cost-shifting—that is the sector my hon. Friend is interested in protecting. The Guardian would be covered because it declares dividends to its members, so it would not be exempted as the Daily Mail suggested.

The next myth about section 40 is that newspapers would have to sign up to IMPRESS, which again is simply not true. The press are at liberty to create their own regulator, which would simply have to fulfil all 29 of Leveson’s criteria in order to become approved. Becoming approved does not require any sort of Government or political approval. It is entirely independent, and there is nothing to stop IPSO applying to become an approved regulator, except that it does not want to provide the low-cost access to justice that is so necessary. IPSO is a press protector, not a press regulator. I say that because it has introduced what it calls a compulsory low-cost arbitration scheme, but that is not right. IPSO’s scheme is voluntary, and the Financial Times, MailOnline and other newspapers not regulated by IPSO have not signed up. Newspapers may leave the scheme whenever they choose. Although I am delighted that IPSO has admitted that low-cost arbitration is necessary, to add to the express view of both Houses and the recommendation of Lord Leveson, this version of it is not right.

If we choose not to vote for section 40 today, we will once again be trusting the newspapers to reform themselves. They say we should trust them and that IPSO is reforming, coincidentally at exactly the same time as we vote on this important new clause. The newspapers have shown again and again that they cannot be trusted, and we must vote to ensure that all victims have access to low-cost justice, which is so necessary. Lord Leveson, both Houses of Parliament and, now, IPSO have all agreed this is necessary. Section 40 has been on the statute book for five years, and it is now time it was commenced.

[Brendan O'Hara (Argyll and Bute) (SNP)]

Time is tight, so I will be brief. I rise to speak in support of new clause 18 because the Scottish National party has been clear throughout that all individuals should be able to seek redress when they feel they have been the victim of press malpractice. It benefits each and every one of us to have a media that is both transparent and accountable.

The Scottish National party is committed to ensuring that the practices that led to the Leveson inquiry never happen again. We have been equally clear, however, that if there is to be a second part of the Leveson inquiry, the distinct Scottish legal context must be taken into account and the Scottish Government must be consulted on the scope and scale of any future inquiry.

Both my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) and I raised that on Second Reading and again in Committee, and we put on record our dismay at the wholly inappropriate, indeed lazy, amendments made in the other place that sought to impose a blanket, one-size-fits-all, Truro-to-Thurso policy without any cognisance of the devolution settlement or of the fact that matters of press regulation and criminal justice are wholly devolved to the Parliament in Holyrood. I do not think it unreasonable to expect the House of Lords to know that both criminal justice and press regulation, and all the associated issues of the culture, practice and ethics of the press, fall under devolved competence, and that any blanket UK-wide proposal could only negatively impact on devolution.

Scottish National party Members have said repeatedly that, as long as the Scottish Government are consulted and the Scottish legal system is taken into account, we would be happy to support a Leveson inquiry.

[Liam Byrne]

I am following the hon. Gentleman’s argument closely. He is right to say that we need to ensure the sins of the past are not repeated, which is why we need new clause 20. Can he confirm whether his party’s position is to support new clause 20 today or, as I have heard, to abstain on it?

[Brendan O'Hara]

The right hon. Gentleman may push that to the vote, but new clause 20 seeks to impose on Scotland a system of press regulation from Westminster, even though this is wholly devolved. I appreciate the work that he and others in Hacked Off have tried to do to square that circle, but it has not been squared. Therefore, we cannot support a system of press regulation that will be imposed from Westminster on Holyrood. That is why I am so pleased that new clause 18 is presented in such a way that it takes on board all of our concerns. I am extremely grateful for the efforts made by the right hon. Member for Doncaster North (Edward Miliband) in fashioning the new clause in a way that allows the second part of the Leveson inquiry to take place while recognising the devolution settlement and the distinct position in Scotland. I commend the passion with which he put across his argument this afternoon.

There will be some who will say that part 2 of Leveson is now out of date—indeed, the Secretary of State said as much when he announced his plans to scrap it. People are right to say that much has changed since 2011, which was before Brexit or the fake news agenda dominated the newspapers, but we need to ask ourselves how much has really changed since the height of the phone hacking scandal. The Government are convinced that a step change has taken place, but I question whether it really has. The Secretary of State has pointed out that the world has changed, but these concerns are as relevant now as they were then.

We have seen how social media is now part and parcel of everyday life. Surely the time is right, with this second part of Leveson, to investigate the role of social media companies—Facebook, Twitter and others—in spreading fake news and disinformation. I would like to think that this inquiry would look to build on the outstanding work being done by the hon. Member for Folkestone and Hythe (Damian Collins) and his Select Committee in pursuing fake news and the spread of disinformation.

On behalf of the Scottish National party, I am delighted to have added my name to new clause 18 because I believe any reasonable person would agree that the terms of reference for this part of the Leveson inquiry have not yet been met.

[Mr Rees-Mogg]

The freedom of the press is so overwhelmingly precious that we should preserve it even if sometimes the press upsets us. It is amazing how many people who have had run-ins with the press have suddenly found that they think it should be more tightly regulated. Fascinatingly, the Daily Mail carried out a survey of their lordships House and discovered that more than a third of those who voted to shackle the press had been embarrassed by the press. May I therefore pay all the greater tribute to my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) for his impressive speech? He has suffered at the hands of the press, yet he recognises that the value of the free press is one of the great jewels in the crown of our constitutional settlement. But it is a jewel that has become tarnished because of actions taken by us; in four years, we have fallen in the rank of free nations from 30th to 40th, so that now we are behind Trinidad and Tobago, and, perhaps most insultingly, even below the French in freedom of the press. The clauses before us today should fill us with shame because they go to the heart of what we should believe in, in terms of our liberties, our freedoms and the rule of law.

New clause 18 seeks to have double jeopardy. Why did Leveson 2 not go ahead in the first place? It was because of a fear that trials could be made unfair by an inquiry going ahead at the same time. But those trials have now gone ahead and juries have returned verdicts. Interestingly, what verdicts did they return? It was not the ones the establishment expected. By and large, the journalists were found not guilty—not guilty of misusing any public office—but the police who gave them information were found guilty.

Was that not proper justice at work? The receiving of information as a journalist is your job, but the giving of information as a policeman is against the law. They have had justice, they have had the inquiry and they have been through the process, but now people want to put those found innocent through it again. They want to call them in front of a tribunal, to put them on oath, to put them in the stocks, and to let them be quizzed, questioned and interrogated so that the freedom of the press can be undermined and pressurised by those who have sometimes had the sharp lash of the press’s tongue against them. It reeks of self-interest.

--- Later in debate ---

[Damian Collins]

The right hon. Gentleman is absolutely right and that throws up two really important points.

The first point is that the Information Commissioner is also currently investigating this, which links to the right hon. Gentleman’s point about where the money comes from and who the data controllers are in these campaigns. Although Facebook is saying that it will in future change its guidelines so that people running political ads must have their identity and location verified, we know that it is very easy for bad actors to fake those things. It would be pretty easy for anyone in the House to set up a Facebook page or account using a dummy email address they have created that is not linked to a real person, but is a fake account. This is not necessarily as robust as it seems, so we need to know who is running these ads and what their motivation is for doing so.

Secondly, the Information Commissioner is also looking at the holding of political data. It is already an offence for people to harvest and collect data about people’s political opinions or to target them using it without their consent, and it is an offence for organisations that are not registered political parties even to hold such data. If political consultancies are scraping data off social media sites such as Facebook, combining it with other data that helps them to target voters and micro-targeting them with messaging during a political campaign or at any time, there is a question as to whether that is legal now, let alone under the protection of GDPR.

As a country and a society, we have been on a journey over the past few months and we now understand much more readily how much data is collected about us, how that data is used and how vulnerable that data can be to bad actors. Many Facebook users would not have understood that Facebook not only keeps information about what they do on Facebook, but gathers evidence about what non-Facebook users do on the internet and about what Facebook users do on other sites around the internet. It cannot even tell us what proportion of internet sites around the world it gathers such data from. Developers who create games and tools that people use on Facebook harvest data about those users, and it is then largely outside the control of Facebook and there is little it can do to monitor what happens to it. It can end up in the hands of a discredited and disgraced company like Cambridge Analytica.

These are serious issues. The Bill goes a long way towards providing the sort of enforcement powers we need to act against the bad actors, but they will not stop and neither will we. No doubt there will be further challenges in the future that will require a response from this House.

[Brendan O'Hara]

I will be very brief, Madam Deputy Speaker, because we are incredibly tight for time.

There is so much in the Bill that I would like to talk about, such as effective immigration control, delegated powers and collective redress, not to mention the achievement of adequacy, but I will concentrate on amendment 5, which appears in my name and those of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) and the hon. Member for Brighton, Pavilion (Caroline Lucas).

The amendment seeks to provide protection for individuals where automated decision making could have an adverse impact on their fundamental rights. It would require that, where human rights are or could be impacted by automated decisions, ultimately, there will always be a human decision maker at the end of the process. It would instil that vital protection of human rights in respect of the general processing of personal data. We believe strongly that automated decision making without human intervention should be subject to strict limitations to promote fairness, transparency and accountability, and to prevent discrimination. As it stands, the Bill provides insufficient safeguards.

I am talking about decisions that are made without human oversight, but that can have long-term, serious consequences for an individual’s health or financial, employment, residential or legal status. As it stands, the Bill will allow law enforcement agencies to make purely automated decisions. That is fraught with danger and we believe it to be at odds not just with the Data Protection Act 1998, but with article 22 of the GDPR, which gives individuals the right not to be subject to a purely automated decision. We understand that there is provision within the GDPR for states to opt out, but that opt-out does not apply if the data subject’s rights, freedoms or legitimate interests are undermined.

I urge the House to support amendment 5 and to make it explicit in the Bill that, where automated processing that could have long-term consequences for an individual’s health or financial, employment or legal status is carried out, a human being will have to decide whether it is reasonable and appropriate to continue. Not only will that human intervention provide transparency and accountability; it will ensure that the state does not infringe an individual’s fundamental rights and privacy—issues that are often subjective and are beyond the scope of an algorithm. We shall press the amendment to the vote this evening.

[Margot James]

rose—

[Brendan O'Hara]

I would give way, Minister, but I am very pushed for time.

I would like to voice my support and that of the SNP for amendment 15 on effective immigration control. We believe that the exemption is fundamentally wrong, disproportionate and grossly unfair, and we call on the Government to stop it.

[Colin Clark (Gordon) (Con)]

I am conscious of the time, Madam Deputy Speaker, so I will not take too long.

This country is committed to remaining a global leader on data protection. The fundamental principle behind the Bill is to bring our data protection and information laws up to speed in the digital age. If we are to keep pace with technology and restore accountability in this area, we need a strong Information Commissioner’s Office. I am therefore pleased that the Government have brought forward new clauses 13 and 14. Remarkably, 11.5% of global data flows through the UK. It is vital that the UK plays a key role in ensuring compliance.