Data Protection Bill [Lords]

Debate between Brendan O'Hara and Liam Byrne

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

[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.

Data Protection Bill [Lords] (Sixth sitting)

Debate between Brendan O'Hara and Liam Byrne

Tuesday 20th March 2018 Public Bill Committees

[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.]

Data Protection Bill [ Lords ] (Second sitting)

Debate between Brendan O'Hara and Liam Byrne

Tuesday 13th March 2018 Public Bill Committees

[Liam Byrne]

I beg to move amendment 156, in schedule 2, page 136, line 30, leave out paragraph 4.

This amendment would remove immigration from the exemptions from the GDPR.

We are trying to provide some careful and considered constraints on the exemptions that the Government are asking for, in particular the exemptions that Ministers seek for the purposes of immigration control.

The Bill has been drafted essentially to enable the Home Office to do two things: win cases and create a hostile environment for those who are here illegally, where it has no capacity to trace and deport individuals. In conducting its work, the Home Office draws on a wide range of private providers, from G4S to Cifas. They have a mixed record, including on data protection. The carve-out that the Government seek for immigration purposes has caused widespread concern. It has drawn concern from the other place, the Information Commissioner and the Joint Committee on Human Rights.

The Minister will try to assure us by saying there are safeguards wrapped around the exemption and that there are limits on the way it can be used, but those limits are drawn so vaguely and broadly that they are not safeguards at all. They have been drafted to apply where matters are likely to prejudice immigration control. Who gets to judge the likelihood of prejudicing immigration control is not terrifically clear. In my Home Office days, we used to call that carte blanche.

Through the powers and exemptions in the Bill, the Home Office seeks to collect data for one purpose and then use it without informed consent. Where the rubber hits the road is that, crucially, the effect will be to ensure that subject access requests are basically put beyond the scope of someone seeking information that they might be able to use either in representations that we all might make to Ministers or, more importantly, in an immigration tribunal.

I want to sound a warning note to the Minister, as I hinted on Second Reading. I was brought into the Home Office as a Minister in 2006 and, after a glorious fortnight as Minister for Police and Counter-terrorism, I was moved by my boss John Reid to become Immigration Minister, where I was asked to conduct the biggest shake-up of our immigration system for 40 years.

I created the UK Border Agency; I took UK visas out of the Foreign Office; I took Customs out of the Treasury. We created a Border Agency that could run a biometric visa programme abroad, checking fingerprints against police national computers before anyone got on a train, plane or boat to our country. We introduced much stronger controls at the border, increasing those nice new blue signs, creating smart uniforms for immigration officials, and we increased immigration policing by around £100 million a year

I said earlier that to err is human but it takes a computer really to foul things up. That is a lesson that I learned with some force during my time at the Home Office. The dedicated, fantastic officials in the Home Office and the extraordinary officers who work in what was the UK Border Agency—it has since been revised a couple of times—do an amazing job. They are dramatically underfunded by the Treasury. They have been underfunded by the Treasury under this Government and, in my view, we did not get enough out of the Treasury in my day.

However, they are human and make mistakes. That is why we have such a complicated immigration tribunal system, where people can take their complaints to a first tier tribunal but very often need to seek a judicial review down the line. The challenge is that, if the Home Office wants to create a process and an administration for making the right decision, which can be defended in a tribunal and in a judicial review case, that process must be robust. When we streamlined the immigration tribunal system, we realised that we had to change, improve and strengthen the way that we took decisions in the Home Office because too many were made in a way that was not JR-proof. We were losing JRs and therefore denying justice to those who brought a legitimate claim against the Crown.

There were occasions when I lost cases because of information that was disclosed to the applicant through a subject access review. SARs are one of the most powerful instruments by which anybody in this country, whether a citizen or someone applying to become a citizen, or applying for a legal right to remain, can acquire information that is crucial to the delivery of justice. Many of us are incredibly sympathetic to the job that the Home Office does. Many of us will want a tougher regime in policing immigration, in particular illegal immigration, but I suspect every member of the Committee is also interested in the good conduct of justice and administrative justice. As someone who served in the Home Office for two years, I had to take some very difficult decisions, including to release subject access request information that I absolutely did not want to go into the public domain. Sometimes it was right to release that information because it helped ensure that justice was done in the courts of this land.

The Minister has some very strong safeguards in the Bill. There are strong safeguards that create exemptions for her where the interest is in crime prevention, such as, for example, illegal immigration. However, the power that the provision seeks, at which we take aim in our amendments, is a step too far and risks the most terrible injustices. It risks the courts being fouled up and our being challenged in all sorts of places, including the European Court of Human Rights in the years to come. It is an unwise provision. If I were a Home Office official, I would have tried it on—I would have tried to get it through my Minister and through the Houses of Parliament, but it is unwise and a step too far. I hope the Minister will accept the amendment and delete the provisions.

[Brendan O'Hara]

I will speak in favour of amendment 156. On Second Reading, I said that I would raise this matter again in Committee and I make no apologies for doing so. We regard this new exemption as extremely concerning. It permits the Government to collect and hold data for the purposes of what they describe as “effective immigration”.

It also concerns me that nowhere in the Bill does there seem to be a legal definition of effective immigration control. I am worried that “effective immigration control” is highly subjective and highly politicised. It exposes individuals, weakens their rights and makes them vulnerable to whatever change in the political tide happens to come along next. This broad-ranging exemption is fundamentally unfair. It is open to abuse and runs contrary to safeguarding basic human rights. I believe that the UK’s proposed immigration exemption goes much further than the scope of restrictions afforded to member states under GDPR, with all the consequences of that, which we discussed in such great detail this morning around adequacy decisions.

Rural Communities in Scotland: Broadband

Debate between Brendan O'Hara and Liam Byrne

Wednesday 22nd November 2017 Westminster Hall

[Brendan O'Hara]

I advise the hon. Gentleman to look at the Community Empowerment (Scotland) Act 2015. If that is not about devolving power to local communities, I do not know what is. We all have a mailbag full of broadband connection problems, but the fashion in which the Scottish Conservatives have behaved is unhelpful and unconstructive and does not reflect the reality.

In many ways I am delighted that digital communication is being debated here today, because it gives me the opportunity to enlighten the House as to exactly what is happening in Scotland and what the Scottish Government are doing in their Digital Scotland Superfast Broadband programme, which will have extended fibre access to 800,000 premises by March 2018, meaning that 95% of Scottish homes and businesses will be connected to superfast broadband. I am sure the whole House, with some honourable exceptions, will welcome that and applaud what the Scottish Government are doing.

This debate allows me to inform hon. Members of the enormously ambitious plans that the Scottish Government have—the R100 plans—that will see every home and business connected to superfast broadband with a USO of 30 megabits per second by 2021.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

Can the hon. Gentleman clarify whether the Scottish Government have been empowered to deliver the devolution of powers that he seeks?

[Brendan O'Hara]

In terms of devolving to local authorities?

[Liam Byrne]

The hon. Gentleman seeks devolution of power from the Scottish Government to local councils. My understanding is that central Government still have to legislate on that. Is that his understanding?

[Brendan O'Hara]

That is precisely my understanding. It is not in the Scottish Government’s power. I absolutely agree with the right hon. Gentleman.

Unlike the United Kingdom Government, the Scottish Government are absolutely committed to a universal service obligation of 30 megabits per second. Compare that with the 10 megabit per second USO currently on offer from the UK Government.

As I say, we all have problems. My mailbag is absolutely full almost on a daily basis with problems with broadband. That does not mean that we are getting it wrong; it means, as my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown) said, that we cannot keep up with demand. People rightly demand to be connected. In my constituency of Argyll and Bute, we are losing population. I have said from day one in my two and a half years in this House that digital connectivity is the key to regenerating rural Scotland. I applaud the Scottish Government’s ambition in rolling out superfast broadband at 30 megabits per second throughout rural Scotland.

I believe a bright digital future awaits those not only in Argyll and Bute, but across rural Scotland. Opposition naysayers will have humble pie to eat in a couple of years’ time when it arrives.

The hon. Member for East Lothian (Martin Whitfield) made a useful and thoughtful contribution highlighting the problems and challenges that exist in his constituency. It is a tale I am not unfamiliar with. I echo his call, as I have in the past, to end the silo thinking. There must be a joined-up approach, because digital exclusion will be a serious problem if we do not get this right.

The hon. Member for Angus (Kirstene Hair) made a remarkable contribution and blamed the SNP for the historical copper wiring in the BT network. What can one say? My hon. Friend the Member for Kilmarnock and Loudoun rightly highlighted the historical failure of the UK Government to sufficiently invest in Scotland. He also highlighted the problems facing roll-out in rural Scotland.

The hon. Member for Moray repeated the power- stripping narrative of the hon. Member for Berwickshire, Roxburgh and Selkirk. If he thinks the Scottish Government should be stripped of their powers, does he think the UK Government should be stripped of their powers and that those powers should be devolved to English local authorities?