Centenary of the Armistice

Brendan O'Hara Excerpts

Tuesday 6th November 2018 Commons Chamber

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

It is an honour to speak in this important debate. I pay tribute to all those speakers who have made such moving contributions today.

Let me start by making a special mention of the contribution made by the officers and men of the Argyll and Sutherland Highlanders. The regiment raised a total of 16 battalions and was awarded 68 battle honours in the first world war, including six Victoria Crosses. They came at a terrible price, though, with almost 7,000 Argyll and Sutherland Highlanders losing their lives between 1914 and 1918. Although the regiment recruited throughout west-central Scotland, I wish to single out the 8th Battalion, the Argyllshire, which was stationed in Dunoon and raised no fewer than eight companies from the towns and villages throughout Argyll. Of course, many others from Argyll and Bute joined other regiments or, indeed, other branches of the service. Their contributions are equally valued. As the Member who represents the submarine base at Faslane, I am pleased that the sacrifice made by those in the submarine service has already recognised in the debate.

I have no doubt whatsoever that come Sunday at 11 o’clock, there will not be a town or village in Argyll and Bute that will not stop and remember all those we have lost. As we have heard, every family has their own story to tell, and I wish to share with the House that of my grandfather, John O’Hara, who as a 17-year-old from the Calton district of Glasgow joined the Royal Army Service Corps in the autumn of 1916 and was sent to London to be trained as a transport driver. Having completed his basic training, however, he was spotted, singled out and seconded to the Machine Gun Corps, and then sent to Clipstone camp, near Mansfield, for basic training as a machine gunner.

In the summer of 1917, John O’Hara was sent to France, where he joined No. 13 Machine Gun Company, which was preparing for what would be known as the second battle of Passchendaele, in which he was injured when a bullet entered his shoulder and went through his hand. He was admitted to the military hospital in Flanders before being repatriated back to the UK. Every soldier who was sent back injured was accompanied by what was known as a soldier’s character reference. The report on machine gunner Private John O’Hara described him as being “sober, reliable and intelligent”. I like to think that that was the start of a long family tradition. Back in the UK, he was treated for his injuries at Old Park military hospital before being sent back to France in early 1918 to join the Machine Gun Corps of the 52nd Lowland Division.

For reasons which I have never managed to fathom, when he was back in France, John O’Hara was stationed at the town of Armentières and was part of a group tasked with salvaging sacred relics from the bomb-damaged church of St Vaast in the town. While they were working there, the celebrated Daily Mirror photographer turned official war photographer David McLellan happened by with his camera and took a series of photographs of my grandfather and his comrades at work both inside and outside the church.

The photograph of those otherwise anonymous Tommies, one of them my grandfather, standing to attention on the steps of the church, carrying the rescued wooden statues, has become very well known and, I think, rather poignant. It is one of the great images of the final days of the great war. I refer Members who have not seen the photograph or who do not know the story to the excellent article by Tom Parry in the Daily Mirror just last month, for which he recreated the photograph, with the villagers of Armentières on the steps of the church of St Vaast—on the exact spot—carrying the original statues rescued by my grandfather and his comrades exactly 100 years ago.

Thankfully, and rather obviously, my grandfather survived the last terrible months of the war, but I have always wondered what happened to his four comrades. What fate befell them in those last awful months?

My grandfather was discharged in October 1919, and in the years immediately following, he enrolled at Glasgow University, where he gained a medical degree. He worked as a general practitioner in the east end of Glasgow for many years and was for a while the official doctor to Celtic football club, which brings great pride to the family.

Ours is just one of the millions of stories that families across the UK have. We are in the fortunate position that ours also comes with a remarkable photographic record. So when I lay a wreath at the war memorial in Helensburgh on Sunday to remember all those who gave their lives, I will say thanks for my grandfather’s safe return, but I will spare a thought for his four comrades and hope that they, too, made it back home safely to their loved ones.

Data Protection Bill [Lords]

Brendan O'Hara Excerpts

Tuesday 15th May 2018 Commons Chamber

[Sir Peter Bottomley (Worthing West) (Con)]

I want briefly to say three things.

First, I have brought four successful libel actions against the media. I hope not to have to repeat that. There are many other times that I could have taken action, but chose not to.

Secondly, this House has to choose whether it wants to be Lord Ellenborough, a prosecutor, or William Hone. Their exchanges were well-illustrated in Ben Wilson’s history “The Laughter of Triumph”. In 1817 Hone was prosecuted for seditious blasphemy when he was actually exposing abuse. If given that simple choice, it is right for those in this House, and in the House of Lords, to defend the press—not to say they are in the last-chance saloon, but to back them to hold themselves to the standards they have voluntarily accepted.

Thirdly, I want to make one small point to my right hon. Friend the Secretary of State on the data protection issue. We must find a way for journalists under the IMPRESS code to have the same data protection rights as those under IPSO. I hope he will remark on that either today or very soon.

We must try to bear it in mind that not every journalist remains consistent. Some of us might today have received a letter from Sir Harold Evans, who was editor of The Sunday Times when Jonathan Aitken and I were the only Conservative MPs to say that John Biffen was wrong to allow the takeover of The Sunday Times to go ahead.

Harold Evans said at that time that he would supply me with information demonstrating that what we were saying was right, but three days later he went in with Rupert Murdoch and we heard no more from him until he wrote his own book saying how he did not really enjoy working with Rupert Murdoch. I would take consistency from many people, but I do not expect it of Sir Harold Evans.

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

Like many others, I read with interest the Government’s proposals published this morning in response to Lords amendment 62B, and I have to say that they are not entirely without merit. Indeed some of what is contained in the Government’s proposals around extending the power of the Information Commissioner is interesting and sensible and could even be considered appropriate. Had those proposals been contained in the original draft of the Data Protection Bill, or even had they been introduced as a Government amendment in Committee, I may have been convinced that they were genuinely held beliefs. However, at the risk of being cynical, I fear that for these proposals to appear now, at this very late stage, it is more about staving off a possible Back-Bench revolt than any great principled belief, because what is on offer is simply too little, too late. Therefore, as we did last week, the Scottish National party will today again give its full support to establishing the second part of the Leveson inquiry and will vote against the Government’s offered concessions this afternoon.

We have always said that individuals should be able to seek redress when they feel they have been the victim of press malpractice and that it benefits each and every one of us in this country to have a media that is both transparent and accountable. The Scottish National party is committed to ensuring that the practices which led to the initial Leveson inquiry never, ever happen again. As I said last week, we have insisted from the outset that if there is to be a second part of the Leveson inquiry the distinct legal context in Scotland must be taken into account and the devolved competences respected. In those circumstances we would be happy to support the setting up of Leveson 2. We are confident that the proposal that has come back from the other place has been fashioned in such a way as to address all of our concerns, and we fully support the setting up of the second part of the Leveson inquiry.

This afternoon, Members will have a second chance to do what we did not do last week: make good on the promise that this House gave to the people of the United Kingdom in 2012, when the then Prime Minister said of the second stage of the inquiry:

“That second stage cannot go ahead until the current criminal proceedings have concluded, but we remain committed to the inquiry as it was first established.”—[Official Report, 29 November 2012; Vol. 554, c. 446.]

Earlier today the Secretary of State said that much had changed in the behaviour and culture of the press since the phone-hacking scandal, but surely no reasonable person believes that the circumstances and behaviours of certain sections of the press have changed to such an extent that they need no longer be examined by this inquiry. Like the hon. Member for West Bromwich East (Tom Watson), I read the letter from Figen Murray this morning. If the Secretary of State and other Members feel that this inquiry is no longer relevant, I urge them to read that letter, because the treatment of her family by certain sections of the press following the death of her son Martyn in the Manchester Arena attack last May borders on the unbelievable.

Members need to be aware of how important this is: people in this country have to believe that we in this House are taking this issue seriously. I worry that sections of the press have not travelled as far as we would have wanted them to—and as certain Conservative Members believe they have—since 2012. The setting up of a second Leveson inquiry is not just important and necessary; it will also fulfil a solemn promise made to the people of the UK by their Government, and I urge Members across the House to do the right thing today and support the establishment of a second Leveson inquiry.

[Mr Duncan Smith]

I rise briefly to support my right hon. Friend the Secretary of State’s submission today from the Dispatch Box. I do not believe that moving to Leveson 2 would in any way resolve any particular problems. I have no idea, even after all the answers I have heard in the debates undertaken, what exactly it is that everyone expects Leveson 2 to produce that we do not already know. I suspect that in many cases it is about carrying on and grinding that wheel further and harder, and eventually almost getting even with the media.

I, like my right hon. Friend and most Members, have had cause to deal with the media over things that have been said or done incorrectly. I do not take that as the reason to pursue this beyond where it is at the moment. I agree with my right hon. Friend that self-regulation under the IPSO formula is infinitely better than anything that was in place before, particularly with the low-cost arbitration process of which he extolled the virtues. I would have thought that many of my right hon. and hon. Friends accepted that that was one of the last sticking points in terms of how the press regulate themselves.

Channel 4 Relocation

Brendan O'Hara Excerpts

Thursday 10th May 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Sir Graham. This is an important debate about one of the most exciting media developments that has happened in the UK in many years. As many others have done, I congratulate my hon. Friend the Member for Glasgow South (Stewart Malcolm McDonald) on securing this debate. I thank all hon. Members for their contributions in this well-informed and highly entertaining debate.

I wonder if hitherto Channel 4 had any idea just how popular it was. There is hardly a nation or region that has not extolled its virtue this afternoon. In many ways, however, this debate is an after-party. As us luvvies would say, we have retired to the green room. Those who were here bright and early this morning will know that the bidding war started at Digital, Culture, Media and Sport questions. No one should be surprised that the first shots in that war were fired by my hon. Friend the Member for Edinburgh North and Leith (Deidre Brock), who was of course backing Glasgow’s bid to be the home of Channel 4’s national headquarters. By the end of DCMS questions, supporters from Sheffield, Birmingham and Lichfield had made their pitches too. I believe there were others, but I suspect that many of those were hon. Members who had not a clue what was happening. They had walked into a bidding war and wanted to ensure that their constituency did not miss out on what was on offer.

As anyone will testify, I came to this debate as a fair and honourable man, and with a completely open mind. But having heard so many excellent speeches from hon. Members from different areas across the UK, I have decided to throw my not inconsiderable weight behind the Glasgow bid. Yes, I can see the shock on the faces in front of me, but I have been persuaded by the excellent contributions from my hon. Friends the Members for Glasgow South and for Glasgow Central (Alison Thewliss), and the hon. Member for Glasgow North East (Mr Sweeney). I endorse everything they said. If Channel 4 is seeking a new location, location, location, there is nowhere better suited than Glasgow.

As Stuart Cosgrove, the broadcaster and journalist chairing Glasgow’s bid, said:

“Glasgow is in tune with the values that are at the heart of Channel 4—diversity, equality, innovation with a bit of irreverence thrown in.”

He could have added to that if Channel 4 wants to relocate to a city that already boasts a thriving independent production and freelance sector; a city where both the national Government at Holyrood and local government in George Square are totally committed to supporting the film and television sector; and a city where there is a vast array of creative and cultural talent that is ready, willing and able to get to work, that city is Glasgow.

[Stephen Kerr]

(Stirling) (Con): Does the hon. Gentleman agree that it is the people of Glasgow who create that environment, which allows that degree of creativity?

[Brendan O'Hara]

I could not agree more. It does not happen often—let us call it a red-letter day—but I believe I am in agreement with the hon. Gentleman. As the leader of Glasgow City Council, Susan Aitken said, our city has

“a high concentration of skills, academic excellence and a highly qualified workforce.”

Although I am the proud representative of Argyll and Bute, I am a proud Glaswegian to my bootstraps. I absolutely agree with both Susan and Stuart. As someone who has spent the majority of their working life making television programmes for the Scottish, UK and international markets from Glasgow, I cannot think of a better place for a vibrant, exciting, innovative and daring broadcaster to set up its headquarters than Glasgow.

Although this is a bid for and on behalf of the city of Glasgow, it is in many ways Scotland’s bid. Scotland’s First Minister gave it her unequivocal backing, when she said:

“the unique character of Glasgow, multicultural, welcoming, hugely creative, and irreverent, is a great fit for Channel 4.”

In an almost unprecedented move, the leaders of all of Scotland’s political parties are united in support of this bid. If that were not enough to persuade Channel 4 to move to Glasgow, the fact that the city of Edinburgh is prepared to set aside ancient rivalries to support Glasgow’s bid should tell Channel 4 that there are now no limits to what it can achieve by setting up its national headquarters on the banks of the Clyde.

Glasgow fits all the criteria like a glove. It ticks all the boxes: population size, proximity to centres, and the level of physical and digital connectivity. Glasgow is already home to BBC Scotland and STV. It boasts of having the National Film and Television School hub, based at Pacific Quay. Channel 4 itself has had a presence in the city for many years.

[Mr Sweeney]

When it comes to journey times, there is a three-hour target. I can get from my flat in Glasgow to the door of my office in Westminster in three hours. Not only that, but we have a commitment from the Department for Transport that HS2 will deliver three-hour journey times by rail as well. Does the hon. Gentleman agree?

[Brendan O'Hara]

Anything that can speed up journey times to Glasgow has a beneficial effect for the whole of the United Kingdom. I am certain that Glasgow City Council would make the transition for Channel 4 as painless as it could possibly be for the company, its employees and their families—more painless than Phil and Kirstie could ever do. We have heard welcome contributions from the hon. Members for Birmingham, Northfield (Richard Burden), for Liverpool, Riverside (Mrs Ellman), for Barnsley Central (Dan Jarvis), for Leeds North West (Alex Sobel), for Cardiff South and Penarth (Stephen Doughty), for Batley and Spen (Tracy Brabin), for Keighley (John Grogan)—the Mayor of Sheffield just learned the old adage that the opposition may be in front of you, but you your enemies are most certainly behind you—for Glasgow North East and for York Central (Rachael Maskell). I imagine that if some enterprising producer is watching this debate, there is a fantastic new Phil and Kirstie series to be made, based on that list of people trying to get relocation, relocation, relocation to their town or city.

For me, the most important contributions have come from my hon. Friends the Members for Glasgow Central and for Glasgow South. My hon. Friend the Member for Glasgow Central was absolutely right when she said that Glasgow is indeed “pure gallus”. I believe it is that gallusness that sets it apart from any other bid. She was right to highlight the welcoming nature and cultural diversity of Glasgow. As the mover of the motion, my hon. Friend the Member for Glasgow South, said, we have Chinese, Pakistani, Indian and Caribbean communities, as well as an array of African communities and a multitude of our highly valued EU citizens, including—I just found this out today—our Lord Provost, who is Swedish-born. Glasgow has always had worldwide appeal, and that is reflected in the cultural diversity of our city. It is a major attraction to a broadcaster such as Channel 4.

In conclusion, I thank my hon. Friend for securing this debate and I thank all who took part. It has been well informed and hugely entertaining, a bit like “Channel 4 News”. As my SNP colleagues have said, we very much welcome Channel 4’s decision to move its national headquarters out of London. It is something that I have wanted to happen for a long time, both in my career as a television producer and latterly as a politician. Indeed, I raised the matter with David Abraham, the Channel 4 CEO, at his final appearance before the Digital, Culture, Media and Sport Committee last year. I spoke of the frustration that producers felt about having to come to London from Scotland, Wales, Northern Ireland, the north-west of England or wherever to pitch an idea to a London-based commissioner, who they just knew did not quite get it because he or she did not live in the same world. To move out of London can only be a good thing for Channel 4, for creative sectors across the UK and for those communities whose voices and stories are rarely heard.

Whichever city Channel 4 decides to move to, I guarantee that it will find no warmer welcome and no greater support from local and national Governments than it will receive in Glasgow, and it will not meet a more creative and multicultural community ready to make an outstanding success of the move than that of Glasgow.

Oral Answers to Questions

Brendan O'Hara Excerpts

Thursday 10th May 2018 Commons Chamber

[Matt Hancock]

I admire the hon. Gentleman’s modesty, because he merely asked for a place on the shortlist, as opposed to winning the decision. Of course, there will also be creative hubs for those cities to which Channel 4 does not move. I am sure that this afternoon’s Westminster Hall debate on this topic will be well subscribed, so that this debate can continue further.

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

Glasgow’s bid to be Channel 4’s HQ has gathered cross-party and, indeed, cross-city support, with Edinburgh prepared to set aside ancient rivalries. Does the Secretary of State agree that with that level of support, coupled with its ability to draw on production infrastructure and creative and cultural talent, Glasgow ticks all the boxes?

[Matt Hancock]

I love Glasgow. It is an amazing city that is really going places. I am delighted that there is so much enthusiasm from every corner of the House for the fulfilment of a Conservative party manifesto commitment.

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.

Leaving the EU: Tourism and the Creative Industries

Brendan O'Hara Excerpts

Tuesday 17th April 2018 Westminster Hall

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

It is, as always, a pleasure to serve under your chairmanship, Mr Bone.

I thank the hon. Member for Edinburgh West (Christine Jardine) for securing this important debate. As she said, tourism and the creative industries play a hugely significant part in the UK and Scottish economies. She is right to point out that Brexit could have hugely damaging consequences for both those sectors. It is incumbent on the UK Government to ensure that tourism and our creative industries are not damaged by Brexit.

My hon. Friend the Member for Perth and North Perthshire (Pete Wishart), who made an excellent speech, hit the nail on the head when he said the creative industries are like no other. They are fired by imagination, talent and invention, and they exist to be appreciated, enjoyed and transferred across audiences, without regard to frontiers or borders. I fear that he was right when he said that leaving the European Union will be an absolute disaster for our creative and tourism industries. As has been said often in the debate, my hon. Friend speaks not just from a wealth of political experience but as someone who enjoyed a highly successful career as a musician in two of Scotland’s finest bands—Runrig and Big Country—although his credentials are perhaps now in question as he is a member of MP4, along with the hon. Member for Cardiff West (Kevin Brennan). I suggest to both of them that they may want to get their European tour in sooner rather than later.

My hon. Friend and I, and indeed all SNP Members, desperately want Scotland to remain the inclusive, tolerant, outward-looking country that it is, and we are firmly of the opinion that that can best be done by protecting and maintaining our existing relationship with Europe. The free movement of people within the European Union—we have heard much about that today, including in the good contribution from the hon. Member for Islwyn (Chris Evans)—enriches the cultural life of everyone, not just in Scotland or the United Kingdom, but across the European continent. Anything that threatens that is, in my opinion, to be deeply regretted and is a backward and retrograde step.

Scotland’s creative community has benefited enormously from four decades of support and collaboration with our European partners. As well as culturally enriching us and bringing the welcome free movement of people, it has brought access to the European funding from which Scottish cultural and creative organisations have benefited over the past 40 years. It is entirely understandable that fear of losing access to that enormous pool of talent and vital pool of EU funding is causing huge concern in the creative sector. With restrictions likely to be placed on the free movement of people, including artists and performers, when asked before the EU referendum in 2016, 96% of members of the Creative Industries Federation stated that their preference was for the UK to remain in the European Union.

The latest figures released by the federation show that the concerns felt two years ago about Brexit are as strong as ever. In the most recent report, published in January, 80% of respondents said that they were not confident that Britain will maintain its leading global reputation post-Brexit—indeed, 21% said that a “no deal” outcome would make them consider moving part or all of their business out of the UK, and 40% said that a “no deal” outcome would be harmful to their ability to export. Grave concerns about the ability to continue to attract the best and brightest to work in the UK post-Brexit were laid out at the end of last year, with three quarters of firms surveyed saying that they employed EU nationals. A remarkable two thirds of those firms believed that they could not currently fill those posts with UK workers. Indeed, almost 60% of companies in the Creative Industries Federation survey said that they were already facing a skills shortage, even with current access to EU workers.

Those findings are not isolated examples of the grave concerns in the industry about Brexit. The significant skills shortages in the UK creative industries was also highlighted in a report by UK Music. As the hon. Member for Washington and Sunderland West (Mrs Hodgson) highlighted, when UK Music asked its members what impact the UK leaving the EU would have on them, only 2% thought that Brexit would have a positive impact on their chances of work, whereas 50% feared that leaving the EU would have a negative impact. Such findings are repeated across the sector. Equity, the trade union that represents more than 42,000 performers and creative workers, conducted a survey that showed that 46% of UK bids for European funding are accepted, making the UK second only to Germany. It also showed that the UK receives 24% of all European Research Council grants. The message coming loud and clear from our creative sector is that the UK benefits from being a full member of the European Union. There is consensus across our creative industries that Brexit will be very bad for business, and I urge the Government to listen, engage fully, and act on the well-founded concerns and well-documented reality facing our creative sector as we approach Brexit.

The hon. Member for Edinburgh West skilfully and rightly highlighted the link between tourism and the creative industries, and specifically the Edinburgh International Festival which, as she rightly said, is a gateway to the rest of Scotland and the UK, as hundreds of thousands of visitors disperse from Edinburgh to every corner of the country. Along with others, their presence has a massive impact on our hospitality sector. The hon. Member for Banff and Buchan (David Duguid) spoke about tourism in his constituency, which has 46 miles of coastline. I do not want to get into a debate or argument about whose coastline is bigger, but the coastline of Argyll and Bute is longer than the coastline of France. We know what we are talking about when it comes to having a coastline; we know what it is to have an important tourist industry.

Like much of Scotland, my constituency relies heavily on tourism, not just for the visitor pound, but for employment. We have some of the most breathtaking and unspoiled scenery anywhere in the world, and we are investing heavily in whisky tourism because massive numbers of European visitors come to Argyll and Bute every year to visit our vast range of distilleries. Indeed, whisky tourism is so great, and the whisky industry booming to such an extent, that no fewer than a dozen distilleries have opened across Scotland in the last few years and no fewer than 40 are in various stages of planning and construction, and hoping to come on stream in the next couple of decades. As we speak, tourism is booming. We in Argyll and Bute need those tourists to come, but I fear that Brexit will do nothing to help, and indeed will be hugely detrimental.

Just this week there was another significant investment in whisky tourism. That is welcome, but let us remember that there is hardly an hotel in Scotland that does not rely on the hard work of our EU nationals. Although it is not a patch on Argyll and Bute, Perth and North Perthshire is also a particularly beautiful part of the world, and my hon. Friend will be aware of the contribution made by the tourism industry and our highly valued EU nationals to the economy of his constituency. I commend him on his passionate defence of the digital single market, and I agree that the Prime Minister’s seeming delight at abandoning that vehicle for investment, harmonisation, collaboration and market development was bewildering to anyone who has ever engaged with the creative industries. I share the concerns of the right hon. Member for Wantage (Mr Vaizey) about leaving the digital single market, and I sincerely hope that his voice will be heard by those on his side of the House.

The UK’s creative and cultural industries have benefited greatly—economically, creatively, and culturally—from being part of the European Union for the past 40 years. Nothing will improve the arrangements that we currently enjoy as a member of the EU, and the Government must redouble their efforts to ensure that this world-class sector is not destroyed by Brexit. It is glaringly obvious that remaining a member of the single market at the very least is the best way to do that, so that this country is still able to attract and keep the creative talent that is vital to allow people in that industry to work, perform and exhibit in this country, free from unnecessary barriers. I look forward to hearing the Minister’s explanation for why leaving the single market could ever be good for the creative industries.

Oral Answers to Questions

Brendan O'Hara Excerpts

Thursday 22nd March 2018 Commons Chamber

[Matt Hancock]

On the contrary, the Data Protection Bill is entirely compliant with the GDPR. Indeed, it implements the GDPR in the UK.

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

I want to associate the Scottish National party with the Secretary of State’s comments remembering those who died last year and thanking those who keep us safe on a daily basis.

In the Data Protection Bill Committee this week, fears of achieving adequacy were raised time and again, including around immigration exemptions, as my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) mentioned. Given what has just happened to the UK fishing industry, the “Trust us, it will be okay” approach has failed spectacularly. What cast-iron guarantees has the Secretary of State received from the European Commission that there is nothing in the Data Protection Bill that could jeopardise achieving adequacy?

[Matt Hancock]

We are entirely aligned on what we want to achieve, which is a Data Protection Bill entirely consistent with the GDPR, and that is what is before the House at the moment. Some amendments that have been tabled would make it more difficult for adequacy to be achieved, not least by introducing absolutist language on rights, as opposed to the nuanced language in the Bill at the moment. I urge the whole House to support the Government in our aim of achieving adequacy with the EU.

Data Protection Bill [Lords] (Sixth sitting)

Brendan O'Hara Excerpts

Tuesday 20th March 2018 Public Bill Committees

[Margot James]

I was not planning to speak to this clause, but as it is relevant I will use the opportunity to give the right hon. Member for Birmingham, Hodge Hill further information. He asked about the code of conduct where the commissioner has a responsibility to publish the document about child-friendly regulation of websites. Clause 140 provides that the document can be published in a way the commissioner considers appropriate. Under clause 126, the Bill contains a duty to publish various codes of practice, including the age-appropriate design code. The Bill requires the commissioner to publish the age-appropriate design code within 18 months of Royal Assent, but as the matter is important and urgent, we will endeavour to do so sooner.

Question put and agreed to.

Clause 140 accordingly ordered to stand part of the Bill.

Clause 141 ordered to stand part of the Bill.

Clause 142

Inquiry into issues arising from data protection breaches committed by or on behalf of news publishers

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

I beg to move amendment 137, in clause 142, page 77, line 34, at end insert—

“(3) The Secretary of State must consult the Scottish Government and obtain its consent before establishing an inquiry under subsection (1).”

This amendment would ensure that before any inquiry was established, the UK Government must have consent from Scottish Government.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Clauses 168 and 169 stand part.

Government amendment 72.

Amendment 138, in clause 207, page 121, line 12, after “subsections” insert “(1A),”.

This amendment is a paving amendment for amendment 139.

Amendment 139, in clause 207, page 121, line 13, at end insert—

“(1A) Sections 168 and 169 extend to England and Wales only.”

This amendment would ensure that clauses 168 and 169 would only extend to England and Wales and not apply in Scotland.

[Brendan O'Hara]

Amendments 137, 138 and 139, which stand in my name and that of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East, were tabled because we believe that the Bill is incompatible with the devolution settlement, trampling roughshod over areas of wholly devolved competence. Whether by accident or design, the Lords amendments on Leveson—in particular on section 40—that seek to impose a one-size-fits-all Truro to Thurso solution are wholly inappropriate, as they fail to recognise or take cognisance of the fact that in press regulation and criminal justice, to name just two fields, it is the Scottish Parliament, not this place, that has legislative competence. The three amendments draw that distinction and defend the devolution settlement, removing any lingering doubts as to where the hitherto clear legislative boundaries, which have existed since 1998, lie.

Amendment 137 relates to any future inquiry on press standards, styled as Leveson 2. 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, and that it benefits each and every one of us to have media that are transparent and accountable. However, we have been equally clear that if there is to be a second part of the Leveson inquiry, the distinct legal context in Scotland must be taken into account. As press regulation and criminal justice are matters for the Scottish Parliament, it is that body that must be consulted about the scale and the scope of any future inquiry and how it will operate in Scotland. As long as the Scottish Government were consulted and the distinct Scottish legal system taken into account, we would be happy to support efforts to establish a second part of a Leveson inquiry because any reasonable person would agree that the terms of reference for that part of the inquiry have not yet been met.

It is unfortunate that we have had to table the amendments. It is not unreasonable to expect the House of Lords to know that press regulation and all the associated issues of the culture, practice and ethics of the press would fall under the devolved competence. A blanket UK-wide amendment would only negatively affect areas of devolved competence. We are disappointed that the amendments were necessary in the first place, but we sincerely hope that Members in all parts of the Committee support our attempts to respect the devolution settlement.

Amendment 139 would ensure that clauses 168 and 169 would extend only to England and Wales and would not apply in Scotland. Again, this is simply a case of our having to tidy up after the Lords. I want to put on record that there is no excuse for what we regard as lazy and entirely inappropriate amendments from the other place. By accident or design, those amendments take no cognisance whatsoever of which powers are devolved and which are reserved. For the future benefit of their lordships, let me say again what I have said on numerous occasions. Although data protection may well be an area of competence reserved to this place, press regulation and criminal justice are wholly devolved to the Scottish Parliament and have been for the past 20 years. If the Bill is not amended, the power of this Parliament will be extended into areas that are solely the preserve of the Scottish Parliament. I believe that will set a very dangerous precedent.

Not only does the Bill drive a coach and horses through the devolution settlement, but I would question why the House of Lords thought it in any way appropriate to apply section 40 of the Crime and Courts Act 2013 to the whole of the United Kingdom, because there is no such piece of legislation as the Crime and Courts Act in Scotland. It simply does not exist. Furthermore, the whole concept of exemplary damages, as I understand is being proposed, is not even recognised and has no equivalent in Scots law. If the Bill were passed unamended, it would force the Scottish Government to pass a legislative consent motion—something they have said they have no intention of doing because, as I said, press regulation and criminal justice are wholly devolved to the Scottish Parliament.

It is simply unacceptable for the UK Parliament to decide what should happen in Scotland with regard to press regulation; that is a job for the Scottish Parliament. The Scottish Government have made it clear that, although they are not opposed to press regulation and are having ongoing discussions with the Scottish media about how best to implement an independent press regulation system, it is for Holyrood to decide on a course of action, not to have it decided for them by Westminster. I fully expect the Government to seek to remove clauses 168 and 169 and the Opposition to seek to restore them on Report. I hope that, when the Labour Opposition do that on Report, they will ensure that what they bring back to the Floor of the House of Commons is compatible with the devolution settlement and that the proposed new clause will exclude Scotland from the section 40 legislation.

It is not enough for the Government to say that they understand and sympathise. I urge the Minister to accept our amendments because they preserve and protect the devolution settlement, which has worked well for the past 20 years in terms of press regulation and criminal justice. I ask the Minister and in particular Conservative Members representing Scottish constituencies to respect the devolution settlement and accept that what came back from the House of Lords flies in the face of the long-established devolution settlement. I ask them to accept that it is wholly inappropriate and inconsistent with Scots law and, therefore, support our amendments.

[Liam Byrne]

I want to say a few words in defence of the clause and touch on the amendments the Government have proposed. The substance of the clause is an attempt to ensure that we activate the second half of the Leveson inquiry, to look into allegations of collusion between the police and members of the fourth estate.

It is worth reminding ourselves of the absolute horror with which we all looked at the revelations about News International’s malpractice. The idea that individuals from national newspapers could hack phones of pretty much anybody in the country, including most notoriously the phone of poor Milly Dowler, sell that information and turn it into front-page newspaper stories, absolutely shocked us. Serious questions were asked about the way the police investigation was conducted. That is why the House united not just to begin the Leveson inquiry, but to propose a second part to look into the question of police collusion. That element was not possible at the time because of the cases that were coming to court, both civil and criminal. The solution proposed by Mr Cameron, the then Prime Minister, which I believe was supported by the present Secretary of State for Digital, Culture, Media and Sport, was that there should be a second half of the Leveson inquiry. Mr Cameron said:

“One of the things that the victims have been most concerned about is that part 2 of the investigation should go ahead—because of the concerns about that first police investigation and about improper relationships between journalists and police officers. It is right that it should go ahead, and that is fully our intention.”—[Official Report, 29 November 2012; Vol. 554, c. 458.]

--- Later in debate ---

[Margot James]

Currently, IMPRESS is the only regulator recognised under the royal charter. I cannot speak for the press. There was a heated debate when the legislation went through Parliament. The press decided as one not to join what they perceived as a state-backed regulator. IPSO now does the job, albeit the Financial Times and The Guardian alone among the broadsheets have not joined IPSO.

The media landscape has changed. As I noted earlier, high-quality journalism is under threat from the rise of clickbait and fake news, from difficulties in generating revenue online to replace the revenue that used to flow from printed sources, and from the dramatic, continued rise of largely unregulated social media. If implemented, section 40 could impose further financial burdens on publishers, particularly at local level—200 local papers have closed in the last decade.

On top of that, the amendments made in the other place undermine our Scotland and Northern Ireland devolution settlements—that point was ably made by the hon. Member for Argyll and Bute. The proposed new clauses seek to legislate on a UK-wide basis despite press regulation being a reserved matter for the devolved Administrations, which brings me to amendments 137, 138 and 139 in the name of the hon. Gentleman.

The Government are sympathetic to the hon. Gentleman’s arguments for reasons I have set out. We will nevertheless push instead for the removal of those clauses from the Bill in their entirety. Similarly, while we agree with the sentiment of amendment 137, which seeks to require the Government to obtain the Scottish Government’s consent before establishing an inquiry under clause 142, we note that there is already a consultation requirement to that effect in the Inquiries Act 2005. Such an amendment is therefore unnecessary.

To conclude, high-quality news provision is vital to our society and democracy. I know there is shared interest across the House in safeguarding its future, and the Government are passionate about and working to deliver it. We believe that the clauses would work against those aims and cut across the work we are doing to help strengthen the future of high-quality journalism, and will therefore oppose their continued inclusion in the Bill.

[Brendan O'Hara]

I take on board what the Government say and appreciate that they have accepted the principle of the amendment, but I still intend to push it to the vote. It is essential that the devolution settlement is protected in as broad and deep a way as possible. I understand that they would seek to remove the entire clause, but if the clause is passed and de-amended, it has serious consequences for the devolution settlement. For that reason we will be pushing it to the vote.

Question put, That the amendment be made.

Data Protection Bill [ Lords ] (Third sitting)

Brendan O'Hara Excerpts

Thursday 15th March 2018 Public Bill Committees

If the Government are serious about taking on the double asymmetry—the asymmetry between the humble individual and the gigantic tech giants, and that between a single case and thousands of people having their data breached—they will accept the amendments. They were drawn up and tested very carefully. We sought expert legal counsel to get them right. We are grateful to the House for the fact that they have been framed nice and clearly. I urge Ministers not to fail this basic test of judgment as to whether they are serious about protecting our data rights, and to accept the amendments.

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

It is a pleasure to serve under your chairmanship this afternoon, Mr Streeter.

I support amendment 154. We strongly recommend that if the Government are, as they claim to be, serious about providing the best possible data protection regime to achieve the gold standard that they often talk about for UK citizens, they should look again at the issue of collective redress and make provision for suitably qualified non-profit organisations to pursue data protection infringements and breaches of their own accord, as provided for by the GDPR.

The right hon. Member for Birmingham, Hodge Hill rightly said that the amendments would allow representative bodies to bring such cases, but would also allow individuals to opt out. Currently there is not a level playing field. If the Bill is not amended, the already uneven playing field will become impossibly uneven for individuals whose rights are breached or infringed—probably by a tech giant.

Collective redress was one of the most controversial and hotly debated issues when the Bill was in the House of Lords. The Government resisted all attempts to change it there. There have been slight amendments since then, and an understanding has been reached, but I feel that what the Government propose does not go nearly far enough to address the concerns expressed by Scottish National party and Labour Members.

Anna Fielder, a former chair of Privacy International, wrote:

“Weak enforcement provisions were one of the widely acknowledged reasons why the current data protection laws, in the UK and elsewhere in Europe, were no longer fit for purpose in the big data age. As a result, it has been more convenient for organisations collecting and processing personal information to break the law and pay up if found out, than to observe the law — as profits made from people’s personal information vastly outweighed even the most punitive of fines.”

That is the situation we are in, and it is incumbent on legislators to level the playing field—not to make it even more uneven. However, as the Bill currently stands, it only enables individuals to request that such suitably qualified non-profit organisations take up cases on their behalf, rather than allowing the organisations themselves to highlight where they believe a breach of data protection law has occurred.

All too often, as has been pointed out on numerous occasions, individuals are the last people to know that their data has been unlawfully and in many cases illegally used. They depend on suitably qualified non-profit organisations, which are there to conduct independent research and investigations, to inform them that that is the case. Indeed, there was a very striking example recently in Germany, where the consumer federation took one of the tech giants to court over a number of platform breaches of current German data protection law, and it won. However, there are numerous examples across the world of organisations and groups highlighting bad or illegal practices that would hitherto probably have gone unnoticed here.

Privacy International recently published a report on the use and possible abuse of personal data connected to the rental car market. Which? has carried out research on online toys that are widely available in this country, which could pose serious child safety risks. The Norwegian consumer council has done similar work on toys, as well as exposing unlawful practices by health and dating apps.

Across the world, there are groups that do collective redress work very successfully in Belgium, Italy, Portugal, Spain, Sweden, Canada and Australia. I urge the Government to reconsider the matter and to see the great consumer benefits and protections that would come from accepting amendment 154. It would give not-for-profit organisations the right to launch complaints with a supervisory authority, as well as seeking judicial remedy, when it considered that the rights of a data subject under the GDPR had been breached.

I repeat that at the moment we have an uneven playing field. If the Bill goes through unamended it will become an impossible playing field for consumers, so I urge the Government to accept the amendment.

[Darren Jones]

I promise not to speak at every opportunity today, Mr Streeter; I am conscious that it is a Thursday and that Members have constituencies to get to, but on this point I will just add my support to the amendment tabled by my right hon. Friend the Member for Birmingham, Hodge Hill.

The Bill puts us in a position that we should not have been in in the first place. The Government’s original view was that they were not going to implement article 80 of the GDPR; they have now gone one step in that direction, and I support the aim that we go the whole hog.

I recognise from my work previous to being an MP that a lot of tech companies are not evil; they want to do the right thing and go about being successful as businesses. It was partly my job in the past to look at these areas of law on behalf of companies, and to work with campaigning groups, regulators and others. It was about being an internal voice to make sure that there was the correct balance within businesses between considering consumers and being pro-business. This amendment would help to facilitate that conversation, because if bodies such as Which? that are private enforcers on behalf of consumers had these legal rights, then of course there would be an obligation on businesses to have ongoing dialogue and relationships. They would have to make sure that consumers’ concerns were at the forefront and that they were doing things in the right way.

The balance to be struck is really important. The Information Commissioner’s Office, for example, has lost quite a lot of staff to other companies recently. The Minister’s Department had to increase the salary bands for ICO staff to try to keep them there. In other sectors of the regulated economy, having private enforcers on behalf of consumers as a collective group works perfectly well for existing regulators.

In the telecommunications sector, in which I have worked in the past, there is Ofcom, which regulates the telecom sector, but there is also Which?, working as a private enforcer under the Consumer Rights Act 2015, which can act on behalf of consumers as a group. That works perfectly well and as my right hon. Friend said, private enforcers will not just start bringing these super-complaints every week, because the risk would be too high. They will only bring these super-complaints when they have failed in their dialogue and have no choice.

--- Later in debate ---

[Margot James]

As I said, the GDPR represents significant change. We believe we should test the effectiveness of the new enforcement scheme before we make further changes of the kind the right hon. Gentleman is suggesting. The Morrisons case was effective. The collective redress mechanism—group litigation orders—was used and was effective. The Information Commission will have new powers under the Bill to force companies to take action when there has been a breach of data.

There are other problems with amendment 154. First, like the right hon. Member for Birmingham, Hodge Hill, we are concerned about children’s rights. We would be concerned if a child’s fundamental data rights were weighed up and stripped away by a court without parents or legal guardians having had the opportunity to make the decision to seek redress themselves or seek the help of a preferred non-profit organisation. Once that judgment has been finalised, there will be no recourse for the child or the parent. They will become mere observers, which is unacceptable and makes a travesty of the rights they are entitled to enforce on their own account.

Secondly, we must remember that the non-profit organisations referred to in the amendment are, by definition, active in the field of data subjects’ rights. Although many will no doubt have data subjects’ interests at heart, some may have a professional interest in achieving a different outcome—for example, chasing headlines to promote their own organisation. That is why it is essential that data subjects are capable of choosing the organisation that is right for them or deciding not to partake in a claim that an organisation has advertised. The amendment would also allow an individual to bring a collective claim on behalf of other data subjects without their consent.

[Brendan O'Hara]

Does the Minister not accept, as I said earlier, that individuals are often the last people to know that their data has been breached and their rights have been infringed? For collective rights in hugely complicated areas, there must be a presumption that those rights are protected, and the Bill does not do that. I do not believe it reflects the principle that individuals are often the last people to know, and that they are the ones who need protecting.

[Margot James]

The Information Commissioner has powers to force companies to notify data subjects of any breach of data, and there is a legal requirement on companies so to do.

The amendment would allow an individual to bring a collective claim on behalf of other data subjects without their consent. We oppose it because it does not give people the protection of knowing that the entity controlling their claim is a non-profit organisation with a noble purpose in mind. I am pleased to say that, as I outlined this morning, the Government’s position was supported in the other place by the Opposition Front Benchers and the noble Baroness Kidron.

--- Later in debate ---

[The Chair]

I think the amendments are to clause 27 of the Bill.

[Brendan O'Hara]

I rise to speak to amendment 161 and amendments 162 to 169.

[The Chair]

That is the next clause.

[Brendan O'Hara]

My apologies.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

It is a pleasure to serve under your chairmanship, Mr Streeter. Clause 26 creates an exemption for certain provisions in the Bill only if that exemption is required for the purpose of safeguarding national security or for defence purposes. Where processing does not meet these tests, the exemption cannot apply. It is possible to exempt from most but not all the data protection principles the rights of data subjects, certain obligations on data controllers and processors, and various enforcement provisions, where required to safeguard national security or for defence purposes. In relation to national security, the exemption mirrors the existing national security exemption provided for in section 28 of the 1998 Act. The statutory framework has long recognised that the proportionate exemptions from the data protection principles and the rights of data subjects are necessary to protect national security. The Bill does not alter that position.

The exemption for defence purposes is intended to ensure the continued protection, security and capability of our armed forces and of the civilian staff who support them—not just their combat effectiveness, to use the outdated language of the 1998 Act. In drafting this legislation, we concluded that this existing exemption was too narrow and no longer adequately captured the wide range of vital activities that are undertaken by the Ministry of Defence and its partners. We have seen that all too obviously in the last two weeks.

--- Later in debate ---

For an interference with rights to be in accordance with law, it must include safeguards against arbitrary interference. We contest that the provisions regarding national security certificates fall short of that requirement. These clauses, unamended, would leave the Government wide open to legal challenge. We hope that the Minister will see the merit of our amendments and correct the Bill at this stage.

[Brendan O'Hara]

It may come as no surprise that I rise to speak in support of amendments 161 to 169. They are intended to challenge the Government’s plan to introduce a national security certification regime that will allow the restriction of and exemptions from a wide range of fundamental rights on the basis of national security and defence. Although it is absolutely right that, as a country, the UK has the ability to act in its own national security interest, I and many others are worried that the scale and scope of what is proposed in the Bill goes much further than the 1998 Act by widening the national security definition to include a further and, I would suggest, undefined range of defence purposes.

The Minister gave three or four examples earlier, but stressed that it was not an exhaustive list. Given the broad and indefinite nature of those national security exemptions, we are concerned that they do not meet the test of being both necessary and proportionate. How much confidence can we have that an individual’s fundamental rights will be best protected when the exemptions will be signed off by a Government Minister with little or no judicial oversight? It is also concerning that there appears to have been little or no attention to the harmful impact of exempting vast amounts of information from data protection safeguards by relying upon national security certificates.

As we heard earlier, the list of rights that are exempted, set out in clause 26, includes the right to be informed when data is being collected, the right to find out when personal data is being processed and the right to object to automated decision making. Those exemptions are to be exercised by a certificate, which, as I say, will be signed by a Minister, who will certify that an exemption from those rights and obligations is necessary for the purpose of safeguarding national security.

That means that, as the Bill is currently drafted, people’s rights could be removed by a politician without any form of judicial oversight. That cannot be right. We would argue most strongly that there has to be judicial oversight of any such decision, to prevent the removal of individual data protection rights from being permitted purely at the say-so of a Government Minister. I ask the Minister, how do the Government define national security and defence purposes in the context of the Bill? I certainly was not satisfied with the explanation we heard earlier on. I believe that these undefined terms are unnecessarily open-ended and broad, and open to vague interpretation. They could very well result in the removal of an individual’s rights unnecessarily. The lack of a clear definition of national security and defence purposes also means that people will be unable to foresee or understand when their rights will be overridden by the application of these exemptions. Surely that is incompatible with an individual citizen’s fundamental rights.

These exemptions, on the surface, are not limited to the UK’s intelligence and security services. As we heard when debating part 2 of the Bill, which deals with general processing, they broadly permit public authorities, and even private corporations on occasion, to invoke national security and defence as a reason to cast aside privacy rights. Can the Minister explain if, how, and under what circumstances a public authority or private company could invoke national security and defence as a reason to cast aside privacy rights?

That brings me to necessity and proportionality, which are fundamental principles when looking at exemptions from data protection, and which will be examined extremely closely by the European Commission and its legal team when it decides on the UK’s suitability for adequacy after Brexit. The principles of necessity and proportionality are enshrined in the European convention on human rights. A Minister must take them into account when they consider restricting or limiting an individual’s rights, such as those under article 8, the right to privacy.

As the Bill stands, no conditions or tests are imposed on a Minister’s decision to withdraw an individual’s personal data protection rights by issuing a national security certificate. There is no limitation on how a national security certificate should run or how long it should operate for. There is no obligation to review the ongoing necessity of having a live certificate. In effect, a certificate is open-ended and indefinite. My concern is that that may allow the state to use a certificate for activities for which it was not considered relevant or appropriate by the Minister when it was first issued or signed.

That loophole cannot be considered proportionate or necessary. The certificates have to be time-limited. That does not mean that once a certificate has expired it cannot be re-certified, but it would ensure that certificates that are no longer necessary or that have been used beyond their original remit do not continue indefinitely. Perhaps the Minister could explain why she thinks such a system could not work, and why it would not be in the best interest of the state and of protecting an individual’s rights.

As with everything we do, including everything we have done in this area in the past couple of years, the Bill has to be seen against the backdrop of Brexit. Not only do we have to comply with the GDPR, but we have to do so in a way that means the United Kingdom will achieve the vital, much sought after adequacy decision from the European Commission. We also have to keep our laws consistent with EU law to maintain that adequacy status. I fear that the widespread use of exemptions and, perhaps more worryingly, the undefined range of defence purposes could deal a severe blow to the UK achieving an adequacy decision from the European Commission.

Can the Minister tell me whether the Government have been given cast-iron guarantees that the new and undefined range of defence purposes will be consistent with EU law, to allow us not just to achieve adequacy but to maintain adequacy post Brexit?

[The Chair]

I will call the Minister to respond, but before she responds to that point, she wishes to correct the record in relation to a previous point, which I am happy to permit.

Data Protection Bill [ Lords ] (Morning sitting)

Brendan O'Hara Excerpts

Thursday 15th March 2018 Public Bill Committees

If the Government are serious about taking on the double asymmetry—the asymmetry between the humble individual and the gigantic tech giants, and that between a single case and thousands of people having their data breached—they will accept the amendments. They were drawn up and tested very carefully. We sought expert legal counsel to get them right. We are grateful to the House for the fact that they have been framed nice clearly. I urge Ministers not to fail this basic test of judgment as to whether they are serious about protecting our data rights, and to accept the amendments.

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

It is a pleasure to serve under your chairmanship this afternoon, Mr Streeter.

I support amendment 154. We strongly recommend that if the Government are, as they claim to be, serious about providing the best possible data protection regime to achieve the gold standard that they often talk about for UK citizens, they should look again at the issue of collective redress and make provision for suitably qualified non-profit organisations to pursue data protection infringements and breaches of their own accord, as provided for by the GDPR.

The right hon. Member for Birmingham, Hodge Hill rightly said that the amendments would allow representative bodies to bring such cases, but would also allow individuals to opt out. Currently there is not a level playing field. If the Bill is not amended, the already uneven playing field will become impossibly uneven for individuals whose rights are breached or infringed—probably by a tech giant.

Collective redress was one of the most controversial and hotly debated issues when the Bill was in the House of Lords. The Government resisted all attempts to change it there. There have been slight amendments since then, and an understanding has been reached, but I feel that what the Government propose does not go nearly far enough to address the concerns expressed by Scottish National party and Labour Members.

Anna Fielder, a former chair of Privacy International, wrote:

“Weak enforcement provisions were one of the widely acknowledged reasons why the current data protection laws, in the UK and elsewhere in Europe, were no longer fit for purpose in the big data age. As a result, it has been more convenient for organisations collecting and processing personal information to break the law and pay up if found out, than to observe the law — as profits made from people’s personal information vastly outweighed even the most punitive of fines.”

That is the situation we are in, and it is incumbent on legislators to level the playing field—not to make it even more uneven. However, as the Bill currently stands, it only enables individuals to request that such suitably qualified non-profit organisations take up cases on their behalf, rather than allowing the organisations themselves to highlight where they believe a breach of data protection law has occurred.

All too often, as has been pointed out on numerous occasions, individuals are the last people to know that their data has been unlawfully and in many cases illegally used. They depend on suitably qualified non-profit organisations, which are there to conduct independent research and investigations, to inform them that that is the case. Indeed, there was a very striking example recently in Germany, where the consumer federation took one of the tech giants to court over a number of platform breaches of current German data protection law, and it won. However, there are numerous examples across the world of organisations and groups highlighting bad or illegal practices that would hitherto probably have gone unnoticed here.

Privacy International recently published a report on the use and possible abuse of personal data connected to the rental car market. Which? has carried out research on online toys that are widely available in this country, which could pose serious child safety risks. The Norwegian consumer council has done similar work on toys, as well as exposing unlawful practices by health and dating apps.

Across the world, there are groups that do collective redress work very successfully in Belgium, Italy, Portugal, Spain, Sweden, Canada and Australia. I urge the Government to reconsider the matter and to see the great consumer benefits and protections that would come from accepting amendment 154. It would give not-for-profit organisations the right to launch complaints with a supervisory authority, as well as seeking judicial remedy, when it considered that the rights of a data subject under the GDPR had been breached.

I repeat that at the moment we have an uneven playing field. If the Bill goes through unamended it will become an impossible playing field for consumers, so I urge the Government to accept the amendment.

[Darren Jones]

I promise not to speak at every opportunity today, Mr Streeter; I am conscious that it is a Thursday and that Members have constituencies to get to, but on this point I will just add my support to the amendment tabled by my right hon. Friend the Member for Birmingham, Hodge Hill.

The Bill puts us in a position that we should not have been in in the first place. The Government’s original view was that they were not going to implement article 80 of the GDPR; they have now gone one step in that direction, and I support the aim that we go the whole hog.

I recognise from my work previous to being an MP that a lot of tech companies are not evil; they want to do the right thing and go about being successful as businesses. It was partly my job in the past to look at these areas of law on behalf of companies, and to work with campaigning groups, regulators and others. It was about being an internal voice to make sure that there was the correct balance within businesses was correct between considering consumers and being pro-business. This amendment would help to facilitate that conversation, because if bodies such as Which? that are private enforcers on behalf of consumers had these legal rights, then of course there would be an obligation on businesses to have ongoing dialogue and relationships. They would have to make sure that consumers’ concerns were at the forefront and that they were doing things in the right way.

The balance to be struck is really important. The Information Commissioner’s Office, for example, has lost quite a lot of staff to other companies recently. The Minister’s Department had to increase the salary bands for ICO staff to try to keep them there. In other sectors of the regulated economy, having private enforcers on behalf of consumers as a collective group works perfectly well for existing regulators.

In the telecommunications sector, in which I have worked in the past, there is Ofcom, which regulates the telecom sector, but there is also Which?, working as a private enforcer under the Consumer Rights Act 2015, which can act on behalf of consumers as a group. That works perfectly well and as my right hon. Friend said, private enforcers will not just start bringing these super-complaints every week, because the risk would be too high. They will only bring these super-complaints when they have failed in their dialogue and have no choice.

--- Later in debate ---

[Margot James]

As I said, the GDPR represents significant change. We believe we should test the effectiveness of the new enforcement scheme before we make further changes of the kind the right hon. Gentleman is suggesting. The Morrisons case was effective. The collective redress mechanism—group litigation orders—was used and was effective. The Information Commission will have new powers under the Bill to force companies to take action when there has been a breach of data.

There are other problems with amendment 154. First, like the right hon. Member for Birmingham, Hodge Hill, we are concerned about children’s rights. We would be concerned if a child’s fundamental data rights were weighed up and stripped away by a court without parents or legal guardians having had the opportunity to make the decision to seek redress themselves or seek the help of a preferred non-profit organisation. Once that judgment has been finalised, there will be no recourse for the child or the parent. They will become mere observers, which is unacceptable and makes a travesty of the rights they are entitled to enforce on their own account.

Secondly, we must remember that the non-profit organisations referred to in the amendment are, by definition, active in the field of data subjects’ rights. Although many will no doubt have data subjects’ interests at heart, some may have a professional interest in achieving a different outcome—for example, chasing headlines to promote their own organisation. That is why it is essential that data subjects are capable of choosing the organisation that is right for them or deciding not to partake in a claim that an organisation has advertised. The amendment would also allow an individual to bring a collective claim on behalf of other data subjects without their consent.

[Brendan O'Hara]

Does the Minister not accept, as I said earlier, that individuals are often the last people to know that their data has been breached and their rights have been infringed? For collective rights in hugely complicated areas, there must be a presumption that those rights are protected, and the Bill does not do that. I do not believe it reflects the principle that individuals are often the last people to know, and that they are the ones who need protecting.

[Margot James]

The Information Commissioner has powers to force companies to notify data subjects of any breach of data, and there is a legal requirement on companies so to do.

The amendment would allow an individual to bring a collective claim on behalf of other data subjects without their consent. We oppose it because it does not give people the protection of knowing that the entity controlling their claim is a non-profit organisation with a noble purpose in mind. I am pleased to say that, as I outlined this morning, the Government’s position was supported in the other place by the Opposition Front Benchers and the noble Baroness Kidron.

--- Later in debate ---

[The Chair]

I think the amendments are to clause 27 of the Bill.

[Brendan O'Hara]

I rise to speak to amendment 161 and amendments 162 to 169.

[The Chair]

That is the next clause.

[Brendan O'Hara]

My apologies.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

It is a pleasure to serve under your chairmanship, Mr Streeter. Clause 26 creates an exemption for certain provisions in the Bill only if that exemption is required for the purpose of safeguarding national security or for defence purposes. Where processing does not meet these tests, the exemption cannot apply. It is possible to exempt from most but not all the data protection principles the rights of data subjects, certain obligations on data controllers and processors, and various enforcement provisions, where required to safeguard national security or for defence purposes. In relation to national security, the exemption mirrors the existing national security exemption provided for in section 28 of the 1998 Act. The statutory framework has long recognised that the proportionate exemptions from the data protection principles and the rights of data subjects are necessary to protect national security. The Bill does not alter that position.

The exemption for defence purposes is intended to ensure the continued protection, security and capability of our armed forces and of the civilian staff who support them—not just their combat effectiveness, to use the outdated language of the 1998 Act. In drafting this legislation, we concluded that this existing exemption was too narrow and no longer adequately captured the wide range of vital activities that are undertaken by the Ministry of Defence and its partners. We have seen that all too obviously in the last two weeks.

--- Later in debate ---

For an interference with rights to be in accordance with law, it must include safeguards against arbitrary interference. We contest that the provisions regarding national security certificates fall short of that requirement. These clauses, unamended, would leave the Government wide open to legal challenge. We hope that the Minister will see the merit of our amendments and correct the Bill at this stage.

[Brendan O'Hara]

It may come as no surprise that I rise to speak in support of amendments 161 to 169. They are intended to challenge the Government’s plan to introduce a national security certification regime that will allow the restriction of and exemptions from a wide range of fundamental rights on the basis of national security and defence. Although it is absolutely right that, as a country, the UK has the ability to act in its own national security interest, I and many others are worried that the scale and scope of what is proposed in the Bill goes much further than the 1998 Act by widening the national security definition to include a further and, I would suggest, undefined range of defence purposes.

The Minister gave three or four examples earlier, but stressed that it was not an exhaustive list. Given the broad and indefinite nature of those national security exemptions, we are concerned that they do not meet the test of being both necessary and proportionate. How much confidence can we have that an individual’s fundamental rights will be best protected when the exemptions will be signed off by a Government Minister with little or no judicial oversight? It is also concerning that there appears to have been little or no attention to the harmful impact of exempting vast amounts of information from data protection safeguards by relying upon national security certificates.

As we heard earlier, the list of rights that are exempted, set out in clause 26, includes the right to be informed when data is being collected, the right to find out when personal data is being processed and the right to object to automated decision making. Those exemptions are to be exercised by a certificate, which, as I say, will be signed by a Minister, who will certify that an exemption from those rights and obligations is necessary for the purpose of safeguarding national security.

That means that, as the Bill is currently drafted, people’s rights could be removed by a politician without any form of judicial oversight. That cannot be right. We would argue most strongly that there has to be judicial oversight of any such decision, to prevent the removal of individual data protection rights from being permitted purely at the say-so of a Government Minister. I ask the Minister, how do the Government define national security and defence purposes in the context of the Bill? I certainly was not satisfied with the explanation we heard earlier on. I believe that these undefined terms are unnecessarily open-ended and broad, and open to vague interpretation. They could very well result in the removal of an individual’s rights unnecessarily. The lack of a clear definition of national security and defence purposes also means that people will be unable to foresee or understand when their rights will be overridden by the application of these exemptions. Surely that is incompatible with an individual citizen’s fundamental rights.

These exemptions, on the surface, are not limited to the UK’s intelligence and security services. As we heard when debating part 2 of the Bill, which deals with general processing, they broadly permit public authorities, and even private corporations on occasion, to invoke national security and defence as a reason to cast aside privacy rights. Can the Minister explain if, how, and under what circumstances a public authority or private company could invoke national security and defence as a reason to cast aside privacy rights?

That brings me to necessity and proportionality, which are fundamental principles when looking at exemptions from data protection, and which will be examined extremely closely by the European Commission and its legal team when it decides on the UK’s suitability for adequacy after Brexit. The principles of necessity and proportionality are enshrined in the European convention on human rights. A Minister must take them into account when they consider restricting or limiting an individual’s rights, such as those under article 8, the right to privacy.

As the Bill stands, no conditions or tests are imposed on a Minister’s decision to withdraw an individual’s personal data protection rights by issuing a national security certificate. There is no limitation on how a national security certificate should run or how long it should operate for. There is no obligation to review the ongoing necessity of having a live certificate. In effect, a certificate is open-ended and indefinite. My concern is that that may allow the state to use a certificate for activities for which it was not considered relevant or appropriate by the Minister when it was first issued or signed.

That loophole cannot be considered proportionate or necessary. The certificates have to be time-limited. That does not mean that once a certificate has expired it cannot be re-certified, but it would ensure that certificates that are no longer necessary or that have been used beyond their original remit do not continue indefinitely. Perhaps the Minister could explain why she thinks such a system could not work, and why it would not be in the best interest of the state and of protecting an individual’s rights.

As with everything we do, including everything we have done in this area in the past couple of years, the Bill has to be seen against the backdrop of Brexit. Not only do we have to comply with the GDPR, but we have to do so in a way that means the United Kingdom will achieve the vital, much sought after adequacy decision from the European Commission. We also have to keep our laws consistent with EU law to maintain that adequacy status. I fear that the widespread use of exemptions and, perhaps more worryingly, the undefined range of defence purposes could deal a severe blow to the UK achieving an adequacy decision from the European Commission.

Can the Minister tell me whether the Government have been given cast-iron guarantees that the new and undefined range of defence purposes will be consistent with EU law, to allow us not just to achieve adequacy but to maintain adequacy post Brexit?

[The Chair]

I will call the Minister to respond, but before she responds to that point, she wishes to correct the record in relation to a previous point, which I am happy to permit.