Data Protection Bill [HL]

Earl Attlee Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Skidelsky (CB)]

My Lords, Amendment 89A in my name would remove the reference on page 137, line 14, to the IPSO editors’ code—written mainly by newspaper editors and enforced by their own, industry-controlled regulator—and replace it with a reference to any code operated by a regulator which meets Leveson’s criteria for independence and effectiveness. It is wrong, in principle, to place the IPSO Editors’ Code of Practice in the Bill alongside the BBC guidelines and Ofcom code of practice, which are the approved codes of statutory bodies. Parliament has approved a procedure whereby a press regulator may apply for recognition from the Press Recognition Panel, which is an integral part of the charter system, devised by Parliament to oversee press regulation. One of the criteria set out by the panel for effective self-regulation is that the regulator,

“should be independent of the publishers it regulates”.

I do not know whether the IPSO code would pass this test, because it has never been tested; IPSO has never applied for recognition. However, I doubt it, because the code is drawn up and managed by the editors’ code committee, which is made up of nine editors and newspaper executives and three lay people, with the chairman as an ex officio member. What is more, that code could be changed by that particular committee of the newspaper industry any time it wants and there is nothing that Parliament could do about it. That means that it is quite wrong for the IPSO code to be singled out, for reasons of freedom and information, for the full range of exemptions to which the noble Baroness, Lady Hollins, referred. It would be quite wrong for it to get that status.

My amendment seeks to confine the media code of conduct to the BBC guidelines, the Ofcom code and any code recognised by the Press Recognition Panel set up by the royal charter to provide a credible balance between freedom of expression and the right to privacy. I hope that the Government and the whole House will give it sympathetic consideration. I am sorry that I did not consult more widely beforehand: I am trying to finish a book which the publishers are screaming for, but I should have done that. However, I hope that this amendment will receive consideration.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Baroness, Lady Hollins, and the noble Lord, Lord Skidelsky, for speaking to these important amendments. The noble Lord, Lord Skidelsky, need not worry about not priming the House, as it were, as we are only in Committee and this is a very early stage in the process.

I am sure the Committee will agree that data protection requires the proper balancing of rights, and the amendments in the name of the noble Baroness, Lady Hollins, address that balance in the key area of journalism. Freedom of expression must include genuine public interest journalism. It must be right that journalists and the media have special rights in respect of data protection. It is obvious that the media have a vital role in ensuring that parliamentarians and others in public life adhere to the seven principles of public service. That role would be frustrated if there was a general right for everyone, not just politicians, to know what, if anything, the media “had on them”, if I may put it that way. These amendments do no more than strike that balance correctly: to protect public interest journalism while preventing the systemic abuse of citizens’ data rights. That abuse happened at the News of the World most infamously, but it also happened on an industrial scale at Trinity Mirror titles and other newspapers.

However, these amendments would also achieve something further and equally desirable. In retaining the broader exemption for newspapers that have agreed to sign up to an independent regulator, these amendments, while protecting the public, would also encourage newspapers to sign up to a genuinely independent regulator. Your Lordships will recall that in 2013, we voted in support of implementing the Leveson recommendations to provide an incentive for newspapers to sign up to an independent regulator. This was the system the former Prime Minister, David Cameron, recommended to Parliament, which was signed up to by all major parties in Parliament at that time. That system came with incentives because Leveson was not naive enough to believe that newspapers would sacrifice control over their own regulator without those incentives, and neither was this House. It is extremely regrettable, therefore, that the Government have so far not commenced Section 40 of the Crime and Courts Act, which was passed by this House to provide the most critical of those incentives.

The former Prime Minister, Sir John Major, warned at the Leveson inquiry that there was a serious risk of one party breaking ranks on press regulation policy. Making policy sacrifices to the press is a temptation that afflicts Governments of all colours, of course. However, I hope that the Government will recognise the strength of feeling in this House. This amendment would add to the work of the incentive passed by this House in 2013: it would incentivise newspapers to sign up to an independent regulator while still protecting the public.

I turn to the amendment in the name of the noble Lord, Lord Skidelsky. The proposed designation of the editors’ code is very odd indeed, first, because the Bill names an NGO in primary legislation which might not necessarily exist even next week. Of course, I can fully understand why it would not be appropriate to have the Secretary of State designate a regulator. It would smack of state regulation of the media, which we all want to avoid. Secondly, however, it is because the Crime and Courts Act and the royal charter combined already provide a mechanism for ensuring that any press regulator is genuinely independent and effective. I therefore support the amendment in the name of the noble Lord, Lord Skidelsky, which would replace the code used by IPSO with that of any regulator which was approved by the Press Recognition Panel under the royal charter. Of course, that could include the code of IPSO, if it reformed itself to pass the modest Leveson tests for independence and effectiveness. Clearly, Parliament put the Press Recognition Panel—the independent panel free from politicians and the press—in the sole position of judging the independence and effectiveness of press regulators. The Government should not seek to override their role by specifying the editors’ code in this manner.

Finally, I make it clear that I have already written formally to my noble friend the Chief Whip, indicating that I will vote in support of these amendments on Report if there is a Division. Tonight, however, we should confine ourselves to having a thorough discussion about them.

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[Lord Black of Brentwood (Con)]

My Lords, I declare an interest in this group of amendments as executive director of Telegraph Media Group and draw attention to my other media interests in the register.

When I saw, not with a great deal of surprise, that this group of interlocking amendments relating to press regulation had been tabled—perhaps their second or third outing in as many years—I was reminded fleetingly of that famous line of President Reagan to Jimmy Carter in a presidential debate: “There you go again”. That is what this feels like. We have another Bill—with only the most tangential link to the media—and yet another attempt to hijack it to bring about some form of statutory press control. As the Times put it last week:

“The Data Protection Bill is meant to enhance protection of personal data. It is not meant to be a press regulation bill by another name”.


But this profoundly dangerous set of amendments seeks to warp the Bill in just that way.

Can we please be crystal clear about the impetus behind these amendments? It is certainly nothing to do with data protection. It is to try, yet again, to force the British press—national papers, regional and local papers, and magazines: in other words, everything from the Guardian and the Daily Telegraph to the Birmingham Mail, the Radio Times and Country Life—into a state-sponsored regulator, with virtually no members and no prospect of any, and almost wholly funded by the anti-press campaigner Max Mosley. Indeed, it is the very same regulator which was recently brought into disrepute when an internal report found that its chief executive and two members of its board had breached internal standards by distributing tweets attacking major national newspapers and journalists. These amendments try to do that by seeking to remove vital journalistic exemptions enshrined in the GDPR from all those who will not, on grounds of principle, be bullied into a system of state-sponsored regulation. Other amendments seek to remove the protection for freedom of expression, which has worked very well in the Data Protection Act 1998, to balance convention rights and make privacy in effect a trump card.

Let us be clear: the amendments would be a body blow to investigative journalism—at a time when, as we have seen in recent days and weeks, it has never been more vital—by giving powerful claimants with something to hide the ammunition to pursue legal claims and shut down legitimate public interest investigations into their activities even before anything is published. All UK news operations, none of which will under any circumstances join Impress or any body recognised by the Press Recognition Panel, would find themselves under incessant legal challenge, with a profound impact not just on investigations but on news, features and even the keeping of archives. In my view, it is no exaggeration to say that that would overturn the principle that has underpinned free speech in Britain for two centuries: that journalists have the right to publish what they believe to be in the public interest and answer for it after publication—a right upheld by the courts here and all the way up to the European Court of Human Rights.

The protections which make investigative journalism possible would in effect be enjoyed by only a handful of hyper-local publishers which have signed up to a state-backed regulator. Are the noble Lords in whose names these amendments stand really content to see the future of investigative journalism in this country invested in The Ferret or insideMoray, rather than in the teams from the Observer, the Liverpool Echo, the Scotsman and the many others which over the years have broken story after story in the public interest? Frankly, if this were not so deadly serious, it would be funny.

If these amendments ever found their way into this legislation, it would be not just a massive blow for investigative journalism and public interest reporting but a further knock to our international reputation as a beacon for press freedom. No other country in the free world has a system such as the one proposed here, where publications are bullied by politicians into some form of state-backed regulation.

It is six years since the Leveson inquiry took place. In those six years, the world has changed—not just in terms of the commercial position of newspapers and magazines, many of which now fight daily battles simply to survive, but also in terms of strong independent regulation. It is time that we moved on too, and I am very pleased that my party has done so by committing itself to the repeal of Section 40.

This Bill is very carefully crafted to balance rights to free expression and rights to privacy, which of course are of huge importance. It recognises the vital importance of free speech in a free society at the same time as protecting individuals. It replicates a system which has worked well for 20 years and can work well for another 20. To unpick it in the way that this set of amendments tries to do, making so much public interest reporting impossible, is grossly irresponsible, and I hope that the Committee will reject it.

[Earl Attlee]

My Lords, my noble friend has made a very interesting speech, which is very helpful to the Committee, but it would also be helpful to the Committee if we could understand what it is in the requirements of the Press Recognition Panel that makes it impossible, or makes IPSO unwilling, to meet those requirements. What is so difficult about becoming an approved regulator?

[Lord Black of Brentwood]

My Lords, it is not a question of meeting the requirements of the Press Recognition Panel. It is my belief that IPSO probably would meet the requirements. It is a fundamental belief that self-regulation cannot be self-regulation if it is approved by a state-run body. The Press Recognition Panel was set up by royal charter, which is a method of state regulation in all but name, and the press will not and cannot—and in my view absolutely should not—submit itself to something that has state backing in that way.

[Earl Attlee]

My Lords, that is extremely helpful to the Committee but I still do not understand how the state and government Ministers would be able to influence the work of the Press Recognition Panel.

[Lord Black of Brentwood]

My Lords, the Press Recognition Panel was set up by royal charter, underpinned by legislation in this House, legislation to which I was fundamentally opposed. The Press Recognition Panel was set up—I forget the exact figure—with £3 million of taxpayers’ money. It is a state-run body. To have a state-run body which in some way recognises a system of self-regulation negates the whole concept of self-regulation.

[Earl Attlee]

The noble Lord, Lord Black, is being very helpful. The courts are supposed to be independent and they are, but they are funded by the state as well.

[Lord Black of Brentwood]

My Lords, I am going to give way to judicial friends who are probably waiting to speak and will be able to deal with the question about the courts better than I can.

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[Lord Lester of Herne Hill]

My Lords, I am not here on behalf of IPSO; I am not counsel for IPSO. I have simply tried to explain historically why we are where we are and the arguments the press made in the past that I was party to at the time, as was the noble Lord, Lord Pannick. If there are points to be made about the way in which IPSO works, no doubt they will be made by Members of the House. I stand corrected by the noble Baroness, Lady Hollins, who reminds me that it was not only celebrities who were abused, which is completely true.

What I am trying to say is that no democracy in the world has a system of press regulation that has been formulated post Leveson. It is objectionable to our national and regional newspapers. They will not change and suddenly agree to a different system because of anything which your Lordships say or do. It is a free press and the sensible thing to do is to make the system work. I believe that under Sir Alan Moses it is working, but if it is not working sufficiently, I am sure that they would be interested in any suggestions. It is hopeless if your Lordships believe that you can bully them into giving up their self-regulation in favour of the statutory system which they reject.

[Earl Attlee]

The noble Lord has been very helpful to the Committee. He told us what the disadvantages would be for a media operator if they were not signed up to an approved regulator. Can he tell the Committee what the advantages would be for a media operator if they were signed up to an approved regulator?

[Lord Lester of Herne Hill]

I do not understand the question. It depends on which regime we are talking about. Right now, there would be no advantages.

Data Protection Bill [HL]

Earl Attlee Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

In conclusion, the Bill contains dangerous provisions which could give the ICO increased powers to preside over editorial judgments and journalistic investigations and consider and make determinations on prepublication journalistic activities, which would then lift any stay on legal actions that the Information Commissioner might then also choose to fund. This is not in line with the Government’s laudable intention to protect free speech. I hope that the Minister will look carefully at these proposals, consult with all those affected—there are many of them—even though time is short, and bring back proposals to deal with these various serious issues when we reach Report. I beg to move.

[Earl Attlee (Con)]

My Lords, it may be for the convenience of the Committee if I speak to my Amendments 170AA, 170AB and 170AC at this point. I am grateful to my noble friend for moving his amendment in the skilful way that he did. I hope that my noble friend the Minister has some good answers because my noble friend worried me somewhat.

I fear that I will have to detain the Committee for some time. I wish to make it clear that I have never been mistreated by the media and I do not think I know any celebrity who is not also a parliamentarian. My only complaint is that the general public have never heard of me. Quentin Letts once likened me to Lord Lucan, and when I accidentally appeared to cancel a mainline electrification programme from the Dispatch Box, I got three-quarters of an inch on page 2 of the Sun—at £1.6 billion it was quite an expensive way of getting some publicity.

During the passage of the Crime and Courts Act, I was in the Government with other responsibilities. I have little doubt that later, as a loyal Government Back-Bencher, I voted against the attempt made by the noble Baroness, Lady Hollins, to get Section 40 of the Crime and Courts Act commenced. Thanks to an intense media campaign, I realised that something was going badly wrong when the Government failed to commence Section 40 after the PRP was established and it had approved its first independent regulator.

At present any claims against newspaper publishers where the claimant is an ordinary member of the public is a David versus Goliath battle. The claimant is an individual with limited resources, whereas newspaper publishers are typically well resourced, with teams of lawyers. In effect, the claimant is required to mortgage their home—if they own it—to meet the costs of an action. This is unless they can get a CFA, which is not available for data protection claims—a point that I will come to later. This risk deters ordinary members of the public from ever bringing a claim. When it comes to libel, all they really want is a correction with due prominence. This principle applies to data protection claims as well. Subsequently, publishers have enjoyed impunity in relation to breaching the data rights of ordinary members of the public.

However, the reverse can also be true. Sometimes the claimant is exceptionally wealthy—such as a Russian oligarch—and even the newspapers can struggle to meet the costs of defending a claim. In such cases, censorship can occur where a litigant threatens legal action in order to prevent an article being published. What editor is going to risk hundreds of thousands of pounds in legal costs just to have a pop at a billionaire who desperately deserves it?

The Committee will recall that Lord Justice Leveson recommended a solution: newspapers join a recognised regulator which must offer arbitration, among other things. Arbitration is cheap for the defendant and the claimant, so the cost risks evaporate for both. The only losers in all this are the lawyers on both sides—which I am sure all Members of the Committee will approve of. Most newspapers, however, favour the ability to breach the rights of ordinary members of the public rather than having the free speech benefits of protection from claims by wealthy individuals. So Lord Justice Leveson recommended this ingenious cost-shifting provision.

Newspapers in a recognised regulator offering arbitration are immune from paying the claimant’s costs in cases brought against them, win or lose. Newspapers which have rejected joining a recognised regulator—and, as such, are not offering mandatory arbitration—must meet the costs of all claims brought against them, win or lose. Of course, there are the usual safeguards against frivolous and vexatious claims, even for those not signed up to an approved regulator. As well as protecting free expression and access to justice, this provision would incentivise the press to sign up to a recognised regulator, as Leveson recommended and as Parliament decided and provided for by means of the Crime and Courts Act 2013.

I recognise that in its current form the Bill cannot be used to force the commencement of Section 40 for libel and privacy claims and the like, however strong the case for doing so. However, it can apply Section 40 to data privacy claims relating to publication and commence it. That would give ordinary people whose privacy is invaded at least some protection and provide at least some incentive.

Section 40 of the Crime and Courts Act contains this provision for all media claims except data protection. This was a concession to the press at the time, when data privacy claims were rare because the 1998 Act was written in a way that would require there to be actual financial loss before bringing a claim. The Vidal-Hall v Google case in the Court of Appeal found that the 1998 Act was not compatible with the parent EU directive on this point and had to be interpreted as allowing “distress only” claims, as with other privacy claims.

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[Lord McNally]

The noble Lord is giving the Government a “get out of jail free” card, unless he has something else to say. There are areas in all these amendments that have massive implications for data and data protection. If they do not fit into the scope of a Data Protection Bill, where on earth will they fit?

[Earl Attlee]

My Lords, I would also like to have a little pop at the noble Lord. I understand his point that this is a Data Protection Bill and not something to amend the Crime and Courts Act. Of course, I experienced significant difficulties with the clerks trying to table an amendment to try to amend that Act. But if we had a suitable legislative opportunity—another criminal justice Bill—would the noble Lord’s party support an amendment to make Section 40 of the Crime and Courts Act commence forthwith?

[Lord Stevenson of Balmacara]

To answer that last point first, we have supported that in the past and on the right occasion we would probably support it again. But my point is not about the quality of the case made or the correctness of the approach. It is just not the right time to do that. The same answer applies to the noble Lord, Lord McNally. I did not say that we would not support him if he brought this back at Report. I am simply saying that, at this particular point, I want to use this debate to focus on something else and that is why I am trying to approach the issue in this way. I hope that noble Lords will bear with me before my voice gives up finally. I hope that I can allow that to ring out so that noble Lords can be inspired by it. That is a faint hope.

Underneath the debate that we have had today are some really important questions. I will pose them quickly in the hope that we will get a response from the Minister. It is really important that the noble and learned Lord uses this opportunity to set out very clearly what the Government’s position is on a number of these key points. Is the regime that currently applies to the press, as set out in the Data Protection Act 1998, still the case in the Bill? In other words, has the regime that has worked well since 1998 been changed in any way by its transposition into this Bill? If it has not, he has to be very clear that that is the case. The case that has been made suggests that, in the rewriting and repositioning of Clause 164, something has happened that has alerted everyone to the point, which was made very well by the noble Viscount, Lord Colville, and the noble Lord, Lord Black. I do not think that that was what we understand to be the case, and certainly I and my noble friend Lord Griffiths have asked for chapter and verse on this so that we can be sure that what we are seeing is exactly what the current law is. That is a straightforward question.

Secondly, we need to be persuaded, if we have not been already, that either the technology or the working practices in print journalism in particular, but also in relation to how print journalism is now often paired up with moving image technologies, has produced such a step-change in the way they operate that the additional defences proposed by the noble Lord, Lord Black, or the additional protections that might be needed by victims, which are so important and relevant, do not need to be brought into the Bill. The case has been made, the charge is there, and the Government must come back and tell us what arrangements have been made.

Thirdly, does the fact that many, but not all, direct investigations of a journalistic type are now done jointly with an audio-visual component, so that we have combinations between major newspapers and television broadcasters or even film, mean that we now have in perpetuity dual regulation, in which case the approach taken by Ofcom has to sit with the regulations under the Data Protection Act 1998 or the Data Protection Bill when it becomes law? If that is the case, we have a problem that needs to be confronted. We have one post hoc regulatory structure and one that is mainly post hoc but has an element, albeit restricted and on a narrow basis, in print journalism. If the way the world is moving suggests that everyone doing this work will have to be involved with two regulators, the Government’s Bill does not take that trick and we will need to come back to the point.

Fourthly, what is it about print journalism which is so different that it requires there to be a predetermination capacity for the ICO compared with the situation when the same work, and possibly the same output, is done under Ofcom? My noble friend Lord Puttnam and the noble Baroness, Lady Stowell, made the point that the difference is that the media in this country are very strongly regulated. There are codes, statutory frameworks and editors who are clearly responsible for them and work to them well. However, a different situation pertains here. That does not mean to say that it should be applied across all the outputs involving investigative journalism, but it must be said that if there was in existence a robust, independent and effective press complaints system which enjoyed the confidence of victims, perhaps we would make better progress on the particular issues which have been raised today. That is the point on which we must focus as regards where we might go with this. I hope that when the noble and learned Lord comes to respond, he can bring some light to this issue.

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[Lord Keen of Elie]

My respect for all lawyers remains undiminished.

As the noble Lord, Lord Stevenson, observed, some issues of fundamental importance underlie this; I refer not just to press freedom but to fundamental rights. I therefore have welcomed the contributions to this debate, but I hope that at this time the noble Lord, Lord Black, will feel it appropriate to withdraw his amendment.

[Earl Attlee]

Can the noble and learned Lord tell us of any precedent for a Government undertaking a consultation exercise before commencing a provision in a recent Act of Parliament?

[Lord Keen of Elie]

I am not immediately reminded of any precedents, but principle often caps precedent.

Data Protection Bill [HL]

Earl Attlee Excerpts

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

[Lord Puttnam (Lab)]

My Lords, I first congratulate the noble Baroness, Lady Hollins, on withdrawing her amendment, which I thought was extremely wise and thoughtful. She does us a great favour by constantly bringing us back to these issues.

I try to take the long view. I declare an interest: I am the extremely proud son of a journalist. My father was not any old journalist; he was one of only two people who were evacuated from Dunkirk twice, because he was sent back to report it twice. I am very proud of my father; he was a remarkable journalist and a very fine man. That is why I am passionate about this subject. I apologise to the noble and learned Lord, Lord Keen, if I intervened inappropriately at the end of the last debate. I was trying to make it clear that this House does not contain people who oppose freedom of the press; if we could just agree on that, it would be something of a triumph.

The noble Lord, Lord Pannick, for whom I have enormous regard, and the noble Lord, Lord Black, both used an interesting word: “bully”. The idea of using the word “bully” in the context of a debate such as this, as if it excludes the notion of press bullies, is obviously farcical. I ask the noble Lord, Lord Pannick: when a headline appears that accuses three High Court judges of being traitors, is that fair comment? Is that damaging? Does that provide for the type of democracy he would like to see this country moving towards, or does it irrevocably drive it backwards? As a remainer, I am sick to death of being accused of being somehow undemocratic and apparently opposing the will of the people. That is as much rubbish as is the notion that I might be opposed to freedom of the press.

The noble Lord, Lord Berkeley, is exactly right. We must be more sensible about this. There is fault on both sides. We are not where we would wish to be. The 1998 Act—I was here when it was passed—was a very good act, but it is not sufficient for our present circumstances. It has been ignored by some highly unscrupulous editors. The present regime of apology is ludicrous; the other day, I put that to the noble Lord, Lord Black. I am not sure if he agrees, but it is a joke. We must be more sensible about moving forward on this issue, so I applaud the noble Baroness, Lady Hollins, for taking a long view. We must do the same, but we must also adopt a very determined, clear and moral view to get this right.

[Earl Attlee (Con)]

My Lords, as I made clear in Committee, I wish to see the recommendations of the Leveson report, which strikes the right balance between the interests of the public and free expression rights of the press, be enacted in law. I say to my noble friend Lord Black that there is certainly no intention to punish anyone.

We already have the architecture in place: the royal charter and the Press Recognition Panel, which applies tests suggested by Leveson and made under the royal charter. There is already one approved regulator in place. The only role left for the state and the Government is for Section 40 of the Crime and Courts Act to be commenced and to deal with some of the detailed data protection issues. We do not need to do much more and we certainly do not need to start again.

These Leveson changes are the only way to achieve a thriving, free and independent press that is immunised against a very rich target for investigation, as well as to provide appropriate protection for the public from abuse. I therefore have no hesitation in strongly supporting the amendments in the name of the noble Baroness, Lady Hollins. I remind the House that I have never been mistreated by the media and I do not know any celebrities, except those who are or have been parliamentarians.

In Committee I also made it clear that one of the factors that stung me into action was the copious misinformation and wrongful propaganda published about press regulation and Leveson’s recommendations by elements of the press. This tactic of publicising falsities about the recommendation in the Leveson report also motivated the DCMS committee in another place to criticise press misreporting about Section 40 and other matters in its submission to the government consultation on press regulation earlier this year.

Probably one of the most palpably false media claims is that the implementation of Leveson is unnecessary. Many noble Lords have already touched on that. The media says that the regulator it has established and controls, IPSO—which fails the Leveson and royal charter tests for independence and effectiveness—is already sufficiently robust. Many noble Lords clearly do not believe that. IPSO helpfully mailed a fact sheet last week to some noble Lords. I was pleased to see that it has already been subject to a rebuttal by a further mailing from Professor Brian Cathcart.

I was alarmed to see some particularly erroneous details in IPSO’s mailing. They cannot be left unchallenged. For instance, IPSO claims that it had ordered 17 front- page references. The truth is that not once in three years of work has IPSO required a national newspaper to publish a recognisable correction on its front page, no matter how profound the original breach. I have to confess that I do not regularly read a certain broadsheet newspaper that many noble Lords would expect me to read. I do not find it to be a reliable source of information, very sadly. So I subscribe to the Economist, but even that august newspaper last week disappointed by publishing a correction about a forgivable error in the previous week’s report on transgender rights that was in small print and at the bottom of a completely unrelated article about Labour Party polling.

Moreover, IPSO argues that its complaints process puts great emphasis on complaints between publication and the complainant being resolved with, it says, more than 600 resolutions in its three years of operation. But what does “resolution” mean? The reality is that in many cases, as with the failed PCC, complainants become so worn down by the process that they give up or accept weak and inadequate remedy. Furthermore, when cases are supposedly “resolved” there is no recording of a code breach, which means that essentially nothing is kept on record by IPSO to show that the newspaper has failed to meet the appropriate standards.

As for IPSO’s claim to offer Leveson-style arbitration, Leveson said that it is critical that arbitration is compulsory for news publishers, yet IPSO’s scheme allows the publishers to choose whether to accept an arbitration claim. In other words, the whole system is optional. This means that those with the strongest cases but with limited means can be refused arbitration, forcing them to go to court—if they can afford it—whereas a multi-billionaire can threaten very expensive legal proceedings against the newspaper. That is exactly what Leveson feared and it renders IPSO’s whole scheme redundant. This is not access to justice for all; it just protects the ultra-rich and elites but leaves ordinary aggrieved citizens with no protection. It is no wonder that, after 18 months, IPSO’s trial arbitration scheme has had no takers.

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[Earl Attlee]

My Lords, does the fact that the Government have not responded to the consultation indicate that there must be some uncertainty about the issue?

Data Protection Bill [HL]

Earl Attlee Excerpts

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

[Baroness Hollins (CB)]

My Lords, some in this Chamber have taken the view that the Leveson agreement, which united all parties across both Houses just four years ago, has been overtaken by events and that yet another inquiry into press regulation is now needed. That is precisely the pattern of events that has followed virtually every single inquiry into press misconduct over the last 70 years, when Governments of both left and right have first prevaricated and then surrendered to concerted press lobbying, with missed opportunity after missed opportunity. Let us be clear where we are: Parliament has already legislated, with the help of a cross-party consensus, for much of the Leveson frame- work. We have a royal charter and a Press Recognition Panel, both following the Leveson recommendations. We have the establishment of a recognised press self-regulator, which meets the Leveson criteria. So a failure to fulfil the whole cross-party agreement does not represent a failure of the Leveson inquiry, or of the recommendations that followed, but rather of political courage to complete the jigsaw.

This amendment, tabled by me and supported by the noble Lords, Lord Stevenson, Lord McNally and Lord Lipsey, would require the Government to proceed with a public inquiry into data protection breaches at national newspapers. I am grateful for their support and for the encouragement I continue to receive from so many Members across your Lordships’ House. But a brand new inquiry is unnecessary, as the spirit of this amendment would be fully satisfied by the completion of the second part of the Leveson inquiry. That is my amendment’s intention, which is why the terms of reference specified in the amendment so closely resemble those of part 2 of the Leveson inquiry, within the scope of the Bill with respect to data protection.

There are three reasons why part 2, or a very similar inquiry, should go ahead. First, there is the sheer scale of unlawful conduct and the lack of any accountability. Secondly, there are the traumatic consequences for the many ordinary people who are victims. Thirdly, there are the ongoing implications for the conduct of powerful press organisations today. I shall deal with each in turn briefly.

Part 2 of the Leveson inquiry was designed to delve into the extent of criminality, its cover up, and the collusion between press and police, how it was able to persist, and who was ultimately responsible. We know, for example, that private data belonging to thousands of individuals was illegally accessed on a more far-reaching scale, and in many ways more consequential, than in phone hacking. This type of data theft was rarely in the public interest and was therefore unlawful. We know that these activities were not restricted to the News of the World—far from it: they took place at the Mirror, the Sunday People and the Sun, while evidence has emerged that they took place at the Daily Mail, the Express and the Times as well.

A six-week civil trial of the Sun for four claimants, with 50 more following, is starting imminently, alleging widespread data theft from 1998 through to this decade and an illegal cover-up. There has still been no inquiry into this widespread illegal conduct, and the only senior newspaper executive held to account is Andy Coulson at the News of the World. If corporate misbehaviour on this scale had occurred in any other industry, our newspapers would quite rightly have been calling for heads to roll and for government to intervene.

It is perhaps unusual to mention this, but I have some special guests today who have been personally affected by the misuse of their personal data. I have not spoken personally before, and it is not easy to do so, but it seems that some people do not understand what goes on in our media. Members of your Lordships’ House may be familiar with some of the abuses and intrusions that my family suffered and know that I gave evidence to part 1 of the Leveson inquiry, but they may not be aware that our data rights were repeatedly breached by newspapers. One consequence of having your personal data stolen, and not knowing how, is what it does to your own behaviour. I actually withheld information about my daughter’s progress from close family and friends after her life-threatening spinal injury because I began to suspect people I knew of speaking to the media. I stopped trusting people, even people in my own family, my neighbours and my best friends. I did not trust them. I did not know about hacking and blagging. I actually used to joke about how I thought perhaps the journalists who sent flowers to the hospital every day had put a chip in them so that they could capture our conversations in the waiting room when my daughter was fighting for her life in intensive care. That is what I thought. My daughter’s story was primarily a good news story, the triumph of hope over adversity, a story of recovery, not tragedy, but we had to cope with frequent door-stepping and long-range lenses being used to steal pictures, and the intrusion went on for months and months.

At the time of my daughter’s injury, I was a university professor and the head of a prestigious academic professional college. I was amazed by the prevalence of plagiarism in the press. Plagiarism in academia is a dismissible matter. I had no idea, until my family was the subject of intense media scrutiny over many months, just how commonplace plagiarism is. Typically, one paper’s so-called news on Wednesday would simply be downloaded and reprinted, virtually word for word, in a second unrelated paper on Thursday and in another on Friday, and if the second and third papers added a couple of new words, they might even call it an exclusive. When I, as an academic, publish findings, they have to be accurate. One newspaper article had 28 supposedly objective facts, of which only two were correct. The noble Lord, Lord Black, will be pleased to know that the Daily Telegraph was the most restrained newspaper, but your Lordships’ House may be surprised to know that the only serious and accurate article about the implications of a high-level spinal injury for a pregnant woman was in Hello magazine. It was a good article.

Data theft—often disingenuously referred to as leaks—also affects public bodies. I asked to see the Secretary of State in the Department of Health after a story about my learning-disabled son appeared in the Daily Mail. The account was uncannily similar to some evidence he had given in confidence to a government taskforce. The Secretary of State apologised and said it was the fourth data leak that month, but could not or would not tell me how this intensely private information came to be published in a national newspaper. I spoke about that to the Leveson inquiry. The response was that the information was already in the public domain. It was not, and my son was a vulnerable adult, and printing his photograph put him at risk.

Some people experienced much worse than this, and their names are etched in all our memories. Remember the heartache of the Dowler and the McCann families? Alongside other media assaults, these families had personal data stolen and processed by the media. There are countless other private individuals whose lives have been irrevocably changed by hostile and misleading reporting, often following data breaches through the theft of medical records, bank account details, phone numbers or other private data.

Before today’s debate, I met with Edward Bowles, whose 12 year-old son Sebastian lost his life in a bus crash in Switzerland. At a time of such trauma, his and his family’s suffering was made worse by the conduct of national newspapers which, in addition to repeated other intrusions, stole images of the family and published them without consent. These included images of Mr Bowles and his nine year-old daughter grieving after Sebastian’s death, and family photographs taken from Edward’s private Facebook account. Sebastian’s last personal messages to his family from the school’s website were obtained and published without even asking the family.

These data breaches were committed by newspapers with no public interest whatever and occurred in the middle of part 1 of the inquiry, when the press were supposedly on their best behaviour. This is why we still need to understand how such gross and widespread abuse was allowed to happen in the first place and to ensure that ordinary people are protected from those who steal private data to further their own corporate interests. We do not know how much improper and unlawful use of our data was going on, or may still be going on, because of a widespread cover-up. Corporate governance structures remain unreformed and many of the same newspaper executives remain in place.

I chaired a meeting for journalist whistleblowers before the Recess and we heard evidence of the kinds of data theft that they were commissioned to carry out by their editors in pursuit of stories with no public interest whatever. They were confident that these practices persist today, despite assurances from editors and proprietors that those days are gone. Their stories deserve a wider audience. Part 2 of the Leveson inquiry would allow them to be told and allow us to understand from the past how we can better protect the public interests of both private individuals and journalists in the future. The Government have been consulting on whether to complete the Leveson inquiry since November 2016—over a year ago. It should never even have been a matter of consultation but simply a matter of good faith that an inquiry promised to victims of crime should be completed. The failure to go ahead brings public inquiries into disrepute.

It is time to stop prevaricating and act decisively. I hope the noble and learned Lord the Minister will be in a position to assure your Lordships’ House that he has a firm commitment to commence part 2 of the Leveson inquiry. Without such a promise, I intend to divide the House, and I hope the House will support both my amendments and the important amendments of the noble Earl, Lord Attlee, Amendments 147, 148 and 216, which are tabled as a package. I hope we will make serious and genuine progress towards independent press regulation today. I beg to move.

[Earl Attlee (Con)]

My Lords, I have Amendment 147 and the consequential Amendments 148 and 216 in this group. It may be convenient if I suggest to the House the choreography of how this group might work. The noble Baroness, Lady Hollins, has moved her amendment, which is what we are debating now and will decide on. I will speak to my amendments only once now, and other noble Lords can contribute to all the amendments being debated. I expect that the Minister will reply, the noble Baroness, Lady Hollins, will respond, and we will then deal with her amendment. After the formalities with other amendments, I will formally move my Amendment 147 and deal with any points arising from this debate in respect of it. I believe it is in order for noble Lords to make a substantive contribution after I move my amendment, at that time, but it may be more convenient for the House for noble Lords to do so now, during this current debate.

It goes without saying that I fully support the noble Baroness, Lady Hollins, in her Amendment 127A. We must get to the bottom of what has been going on. My amendments would incentivise media operators to sign up to an independent press regulator in respect of data protection claims. This is achieved in the same way as the yet-to-be-commenced Section 40 of the Crime and Courts Act 2013. My consequential Amendment 216 ensures that Amendments 147 and 148 come into effect on Royal Assent, and deny Ministers the discretion not to implement what Parliament might agree to, as has been done with Section 40.

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[Viscount Hailsham (Con)]

Before my noble friend moves on, would he care to tell your Lordships why he is making a serious distinction in law between IPSO and Impress, because to the minds of many of us, IPSO is a perfectly well regulated and constituted regulator?

[Earl Attlee]

My noble friend makes an excellent point, which I shall come to in a moment.

The third claim is that the Leveson system is unnecessary, as the new IPSO is much better than the previous Press Complaints Commission. I dealt with this in Committee by identifying some, but not all, of IPSO’s deficiencies. These are, first, that IPSO is not obliged to consider discrimination complaints from a group—for instance, a religious or ethnic group. It has also not yet dealt with a matter so serious as to merit levying even a £10 fine. Finally, in three years of operation, IPSO has not arbitrated a single case. In Committee, I was not challenged on any of those assertions, and I am not surprised, because they were checked very carefully.

I hope that noble Lords will support me in the Division Lobby in order that the House of Commons is given the opportunity to provide the vital costs-shifting protection that the public need and deserve in respect of data protection claims. Of course, this would also send a clear message to the Government that they should bring into force the rest of Section 40 immediately, as Parliament agreed to and voted for in 2013.

[Lord Lester of Herne Hill (LD)]

Is the noble Earl aware that there are some, including myself, who believe that Section 40 is unlawful and contrary to the European Convention on Human Rights, since it imposes a burden on a newspaper to pay the costs of proceedings even if it is successful, and is discriminatory and arbitrary?

[Earl Attlee]

There is a simple answer to that—the noble Lord should test that in the courts and test it in Europe.

[Lord Pannick (CB)]

My Lords, I am very grateful to the noble Earl for mentioning one of the many cases over the years in press law that I have lost. I mention to noble Lords another of those cases, in the Court of Appeal in 2015, when I represented entirely unsuccessfully Mirror Group Newspapers, which sought to overturn the very substantial damages that had been awarded to individuals, some of them famous and some of them not, whose mobile phones had been hacked by journalists and whose data had been used to write articles breaching their privacy. A woman who had had a relationship with an England footballer was awarded damages of £72,500. An actress who appeared in “EastEnders” was awarded £157,000 in damages—and so on.

The reason why the courts awarded damages of that extraordinary magnitude, far more than you would get if someone deliberately ran you down and severely damaged your health, was precisely because of the factors that the noble Baroness, Lady Hollins, mentioned in opening this debate. It is about the personal nature of the intrusion and the suspicions that are engendered as to how the press obtained this information. Was it from friends or relatives who had betrayed you? It is about the very real impact that this has on your personal behaviour; it inhibits, inevitably, the communication that you have with friends and relatives. The claimants in these cases were represented by expert solicitors and by a counsel acting on a conditional fee basis, which meant that, when they won the case, MGN had to pay substantially increased costs, as well as insurance premiums. The costs—because the case related to dozens of claimants—were in the millions of pounds. Similar claims have been brought against other newspaper groups, and the noble Baroness, Lady Hollins, mentioned in her opening remarks that further proceedings are imminent.

I mention all this to emphasise that, when newspapers breach data protection laws, as they have, they have paid for it, and rightly so. Nobody who knows anything about what used to be called Fleet Street could seriously doubt that journalists and editors now take data protection seriously. They would be mad not to do so. In the past few years, editors and journalists have gone to prison for criminal offences related to breaches of data protection. Editors and journalists have lost their jobs in relation to such matters. A prominent newspaper, the News of the World, was closed down. Newspaper groups have paid tens of millions of pounds—perhaps more—in damages and costs. This Bill will create a powerful new administrative machinery to enforce data protection law. All that is rightly so, and I complain about none of it; it is absolutely right that the rule of law applies.

The question is whether we really need a public inquiry on this subject, which will take years to report and cost a fortune to the public purse, occupying the time of busy people who can productively be engaged on other matters. I say to the House that we do not need an inquiry to establish what happened in the past—any number of trials, criminal and civil, have examined the facts, sordid as they are—and we do not need a public inquiry to ensure higher standards of conduct in the future. An inquiry in the terms set out in the amendment of the noble Baroness, Lady Hollins, would be so broad in nature that it would impede the ability of editors and journalists to get on with the vital work of holding government and powerful private individuals and companies to account.

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[Viscount Hailsham]

But the irony is that if we have a new inquiry, we will postpone the moment when the Government come forward with a policy. The only way you will get a policy decision is to press the Government to make their policy decision, not by holding a further inquiry.

The second point I want to deal with is my noble friend’s Amendment 147. I am not in support of it. First, I am against making a distinction in law between an approved and an unapproved regulator. I am bound to say that when I look at IPSO, I do not find it lacking; it seems to be a perfectly constituted and responsible regulator. I certainly do not want to make a distinction in law between Impress and IPSO. I very much hope that IPSO, which is backed by the industry, will get much greater support than it has hitherto received.

Secondly, on the issue of costs under my noble friend’s amendment, I believe that an award for costs should be within the discretion of the trial judge. The consequence of this proposed new clause is to make an award against a successful defendant when the institution and carriage of the litigation was conducted by the unsuccessful plaintiff or complainant. That seems to me to fly in the face of every notion of justice I have ever encountered. I suspect that the noble Lord, Lord Lester of Herne Hill, would agree with that proposition. Therefore, I very much hope that your Lordships will not agree to this proposed new clause. I accept that my noble friend has referred to the provisos, which enables the unapproved regulator to gain the costs. However, if my noble friend will forgive me, the second of the provisos is drawn in such general and loose terms as to be unintelligible, even to the cleverest of judges.

[Earl Attlee]

Of course, my amendments are entirely modelled on Section 40 of the Crime and Courts Act, which Parliament passed.

[Viscount Hailsham]

That may be so, but Parliament makes errors, and this House is in the business of looking again at what we have done in the past. We have to ask ourselves: what is just and equitable in the context of this case? I therefore very much hope that we will not approve a new inquiry and that the proposed new clause so eloquently moved by my mentor will fail.

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[Lord Black of Brentwood (Con)]

My Lords, I hope that for the last time on this Bill I declare my interest as executive director of the Telegraph Media Group, and I draw attention to my other media interests in the register.

Amendment 127A, which I shall speak to first, is, as we have heard, an attempt to bring in by statute part 2 of the Leveson inquiry, but of course it is not quite Leveson 2 because this time there is no inconvenient mention of the role in the events of the past of some politicians and the police, who are noticeably absent from the scope of this amendment. So the target is four-square the press, and I believe that those who back the amendment are happy cynically to sweep everything else under the carpet.

I have four points to make. First, another inquiry is completely unnecessary because there genuinely is nothing left to unearth which has not been gone into in microscopic and comprehensive detail and been covered during the years of inquiries and investigations, as my noble friend Lord Hailsham said. Yes, bad things went on in a small number of places, but the full force of the criminal and civil law leading to prosecutions and often eye-watering amounts of compensation, as the noble Lord, Lord Pannick, said, along with rigorous judicial and parliamentary inquiry, has been brought to bear on them.

We had Leveson part 1, which cost taxpayers £5.4 million at the height of austerity and cost the core participants many tens of millions of pounds in legal costs. We should remember that Leveson had judicial powers of inquiry greater than those given even to Chilcot, who was investigating an illegal war in which hundreds of thousands of people died. We have had three exhaustive police investigations, with more people working on them than investigated the bombing at Lockerbie, in which over 200 souls died, costing the same taxpayer another £43 million. We have had three parliamentary inquiries by Select Committees in another place, one into press regulation by our own Communications Committee and one by a Joint Committee. There was a forensic investigation by the United States Department of Justice into voicemail interceptions and payments by public officials, after which it declined to prosecute. There has also been an investigation here into corporate liability in relation to data offences. After detailed consideration of that, the DPP said that no action was to be taken.

I cannot think of a comparable situation where so much has been done to get to the truth. So it is little wonder that Sir Brian Leveson himself, in concluding a ruling in the course of part 1 on 1 May 2012, questioned its value, saying that it would,

“involve yet more enormous cost (both to the public purse and the participants); it will trawl over material then more years out of date and is likely to take longer”,

to complete. I agree with that.

It was said in Committee, and has been hinted at here, that one of the issues that needed to be looked at again was Operation Motorman, despite the fact that Leveson took evidence on it and made recommendations. However—this goes to the heart of the matter—that concerned journalistic activity prior to 2003, 15 years ago. Does anyone believe that going over all that material again will be in any way fruitful, especially when many of the people involved will have left the industry? Some of them have died, and at least some will have forgotten the circumstances around actions that took place at the turn of the century.

My second point is that since the events that were at the centre of Leveson 1 took place, there genuinely has been a sea change in the regulatory framework surrounding journalism and publishing, which makes an inquiry unnecessary. In the past five years, the Press Complaints Commission, of which I was once director, has been closed and IPSO put in its place. I do not think that this is the time for a debate about IPSO, but it is an organisation with real powers based in civil law, which means that it is a regulator able to extract real penalties, far removed from the conciliation service that the PCC offered. Perhaps not visible to the naked eye, IPSO has also brought about, as I know from personal experience, a huge transformation of the internal complaints handling and governance procedures of newspapers.

My noble friend Lord Attlee mentioned the arbitration scheme. He should know from checking his facts that IPSO does now offer a low-cost arbitration scheme. The claimant fee for an initial ruling is just £50—I do not think you can get much more low-cost than that—and a maximum of £100 if the full process is used.

[Earl Attlee]

And how many cases has it arbitrated?

[Lord Black of Brentwood]

The scheme has only just come in following a pilot, so we need to give it a bit of time to see whether it will take effect.

Building on the issue of public interest, my third point is that I do not believe the industry can afford the distraction of such a huge inquiry at a time when many parts of it are struggling for survival. On one level, there is the sheer cost. Leveson 1 cost the industry many tens of millions of pounds in legal fees and management time. Any follow-up inquiry of this sort would, as Sir Brian himself intimated, be even longer, even more complex in view of the time that has elapsed and even more expensive. Under the terms of the amendment, it would impact on every part of the media, including the local press and the magazine sector, which were completely cleared in Leveson 1. The amendment puts those proved innocent back in the dock. Indeed, its terms are so wide that it would even draw in the international media, such as Buzzfeed, Reuters and the Huffington Post, as well as broadcasters including the BBC. Quite apart from the cost, there is the profound distraction that it would entail for those who are seeking with great speed to change their business so that they can survive in the digital age.

The spectre of yet another inquiry is a toxic threat to a free and independent press. I have lost count of the number of times during the passage of this Bill I have heard from those who said it was appalling to suggest—which I never have—that they do not believe in press freedom; that they were champions of press freedom through and through. Maybe, but I say to them: if you will the ends, you have to will the means. Setting up this inquiry is absolutely not willing the means for the survival of the free media in this country.

The issue of tumultuous change leads me to my fourth point. This amendment points very much to the past, one long hauled over. I know that bad things went on but we should be desperately trying to point to the future. One problem with the first part of the Leveson inquiry was that it ignored the reality of the new media environment and global competition in news. The world that this amendment seeks to investigate has gone. We should be looking now at how we can support free media by working out how best to regulate the currently completely unregulated online platforms of Google and Facebook, rather than heaping yet more burdens on a part of the media that is more heavily regulated than anywhere in the western world, constantly scrutinised and buckling under serious commercial pressure. It is time to draw a halt to this and look to the challenges of the future.

I turn briefly to Amendments 147 and 148 in the name of my noble friend Lord Attlee, which attempt to bring in a version of Section 40 of the Crime and Courts Act 2013. These are deeply pernicious amendments and would, I say to my noble friend, have a destructive impact on our free press, not just national newspapers but the local press, the magazine and periodical business, and the international media. The so-called process of cost shifting, which lies at the heart of this, means that all newspapers and magazines not signed up to a state-approved regulator would be liable to pay for the other side’s costs in an action for a breach of data protection, whether they win or lose the case. Because data touches on virtually every aspect of the news operation—from the genesis of a report to its ultimate archiving—a legal action relating to almost any journalistic activity could be dressed-up in a way that would take advantage of this malignant law. It would open the floodgates to hundreds of baseless claims that would put the very existence of many newspapers, particularly the local press, in grave jeopardy.

The aim of this is to use the law to blackmail—I use the term advisedly—publishers into a system of state-approved regulation. Punishing newspapers for telling the truth as a ruse to impose such controls is wholly inimical to press freedom and alien to democracy. In the current situation, the problem is even worse because the faux regulator “approved” by the Press Recognition Panel is bankrolled by the anti-press campaigner Max Mosley. My noble friend Lord Attlee asked about state control. As he knows—he and I have talked about it—the Enterprise and Regulatory Reform Act 2013 gives this House the power to change the charter by a two-thirds majority. However, in many ways even that is a red herring, because Parliament can vote at any time to overturn that and change the terms of the royal charter in a way that would extend state control of the press.

Given that the publishing sector has made it clear that it will never join an approved regulator, this amendment would have the most profound impact across all journalism, but particularly on investigative reporting. It would give anyone who wanted to suppress a journalist’s inquiries a blank cheque to bring a legal action, knowing that they would not have to pick up the cost. Very few publications would ever let a case get to court because of the crippling costs involved, and would either have to stop investigating the moment that a legal action was threatened or be forced to apologise for printing something that was true. This would be particularly pertinent in investigations where there could be multiple legal actions. For instance, had this provision been in place, it would have been impossible for the Telegraph to conduct its investigation into MPs’ expenses—perhaps some Members of this House would be entirely happy about that.

For all publishers, there would be serious commercial consequences at a time when the vast majority of the industry is struggling. It is inevitable that some newspapers would go out of business as a result of just a handful of cases brought under my noble friend Lord Attlee’s amendment, with disastrous consequences for the plurality of the media. I wonder whether he really wants “Attlee’s Law”—as I have no doubt it would become known—to be responsible for closing newspapers, journalists losing their jobs and investigations being stopped in their tracks?

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Moved by

[Earl Attlee]

147: After Clause 160, insert the following new Clause—
“Publishers of news-related material: damages and costs
(1) This section applies where— (a) a relevant claim for breach of the data protection legislation is made against a person (“the defendant”),(b) the defendant was a relevant publisher at the material time, and(c) the claim is related to the publication of news-related material.(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.(5) This section is not to be read as limiting any power to make rules of court.(6) This section does not apply until such time as a body is first recognised as an approved regulator.”

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[Earl Attlee]

My Lords, I am extremely grateful to all noble Lords who have contributed to these exceptionally important and good-natured debates. It may be helpful to your Lordships if I say that I do not propose to move Amendment 215, which is later in the Marshalled List, but I shall move Amendment 216.

I know that I enjoy considerable support around the House, but we need to be sure that we are doing the right thing in sending this matter to the House of Commons. That is why contrary voices and cautious voices are welcome. I am not convinced that my noble friend Lord Black is correct in claiming that these amendments will result in state regulation of the media and the press. He is correct in stating that the royal charter can be changed, but it requires a two-thirds majority in the UK Parliament, including in your Lordships’ House. The most important point is that it requires the unanimous approval of the press recognition panel, not to mention the Scottish Parliament.

As my noble friend recognises, the reality is that it would be far easier to insert some new primary legislation to deal with a perceived problem in the future. That would be rather more difficult to get through Parliament if we already had a good system of independent press regulation in place. Sir Brian Leveson considered these arguments and many more from press representatives, and he was clear in his view that only the recognition system proposed in his report can provide a regulator that is genuinely independent of politicians and the press. Sir Brian said that the incentives I propose are necessary, and I am sure he would not describe them as blackmail. I am at one with my noble friend about the need for a genuinely free press, and I honestly believe that my amendments help.

My other point about so-called state regulation is this: there is already state regulation of the press by means of the courts. Judges are appointed by the state and their level of remuneration, which needs looking at, is ultimately approved by the Prime Minister. A multimillionaire can prevent publication by threatening a publisher with court action with unsustainable and uncertain legal costs. These amendments, which are similar to Section 40, can protect publishers while also providing the public with the protection from press abuse that they need and deserve. I hope that the House, when it considers this amendment, will think of victims who were left powerless after some newspapers, in the words of Sir Brian Leveson,

“wreaked havoc in the lives of ordinary people”.

I hope newspapers will be encouraged to join a recognised regulator to give their own journalism the protections this cost-shifting provision provides while also ensuring that their readerships are similarly protected. I beg to move.

[Lord Finkelstein]

My Lords, I wanted to ask—

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[Noble Lords]

No.

[Earl Attlee]

My Lords, my noble friend is in order.

[Lord Finkelstein]

What would my noble friend’s reaction be if the inquiry that we have just voted for determined that the proposal that he has just made is a foolish one?

[Earl Attlee]

My Lords, the answer to that question is simple, and applies to Section 40. If the Government determine that Section 40 is not a good idea, then they should repeal Section 40 by means of an Act of Parliament. They could do the same if my amendment is agreed to.

Data Protection Bill [HL]

Earl Attlee Excerpts

Report: 3rd sitting (Hansard - continued): House of Lords
Wednesday 10th January 2018 Lords Chamber

[Lord Clement-Jones]

My Lords, I hear what the noble Viscount said about the amendment, but the problem is that even the affirmative resolution procedure is not necessarily a good way to test the framework. The noble Lord, Lord Stevenson, was unusually kind about the Government’s framework. As he said, the Secretary of State can produce a framework that applies data protection to his own department; ignore what the Information Commissioner says about the framework; lay his own framework for Parliament through the negative procedure—I take the noble Viscount’s point about the affirmative procedure—which means it is very unlikely to get much scrutiny; and raise barriers against the ICO’s enforcement mechanism. He can then, as part and parcel of the framework, extend or introduce frameworks to include any other public sector body. Frankly, the Secretary of State can pretty much do what he or she wants. We should not be saying that the framework is essentially like a statutory code of practice; it is a very different animal.

This is our first debate on the architecture that the Government have imposed. In Committee the Minister produced a whole raft of amendments introducing the framework and we did not have a chance to scrutinise it properly. The Information Commissioner is not very happy with this architecture either. That is utterly clear. It is not just opposition parties or organisations such as medConfidential that are unhappy. The ICO has stated:

“The Commissioner understands the needs for government departments and public bodies to be clear about the legal basis for undertaking the functions and this is particularly true when processing personal data. However the provisions as drafted appear to go beyond this limited ambition and create different risks that must also be considered. She has made clear her concerns to government and these are set out below”.


I should very much like to hear what sort of dialogue the Government have had with the ICO because, frankly, at the moment they seem to be overriding any powers or involvement that she has in this framework. I am afraid that I am raising the temperature slightly at this time of night, but the framework for government data protection is not in fact data protection at all.

[Earl Attlee (Con)]

To regain some favour with my noble friend the Minister, may I just say a little word about affirmative orders? It is tempting to say that we should have affirmative procedure but, at the end of the day, we will have at some point to debate those affirmative orders, and they keep mounting up. In respect of negative instruments, there is a praying period and we can flag them up for debate and have them debated in the Chamber in exactly the same way as we can an affirmative order.

[Lord Stevenson of Balmacara]

But I think that the noble Earl would accept that the last time a negative instrument was prayed against successfully was something like 1940—certainly a long time ago—and it was about the use of petroleum with open flames.

[Earl Attlee]

The noble Lord may be right but, of course, it is equally very rare that we turn down an affirmative order.

[Lord Ashton of Hyde]

My Lords, I am grateful to all those who have participated. I take on board what the noble Lord, Lord Clement-Jones, said about our brief debate on the final day in Committee, so we can do a bit tonight. I hope that by the end I will be able to convince noble Lords that this is not quite as sinister as has been made out. I am going to duck, if I may, the argument about the affirmative procedure and whether it should be amendable, particularly given other Bills that are coming before this House soon. After all, I was only reappointed yesterday.

It is helpful to have this opportunity to further set out the purpose and operation of Clauses 175 to 178 and, in doing so, explain why the amendments in this group are unnecessary—except, of course, the government amendments. As noble Lords will now be aware, the Bill creates a comprehensive and modern scheme for data protection in the UK. No one is above the law, including the Government. That partly answers the point made by the noble Lord, Lord Clement-Jones. The Secretary of State cannot do whatever she or he wants because they are subject to the GDPR and the Bill, like everyone else. When I go further and explain the relationship between this framework and the ICO’s guidance, if it is issued, I hope that will further reassure noble Lords.

While we are on this subject, the reason the Bill uses the term “framework” is that it uses the term “code of practice” to refer to a number of documents produced by the Information Commissioner. As this document will be produced by the Government, we felt that it would be clearer not to use that term in this case. It is purely a question of naming conventions—nothing significant at all.

Inherent in the execution of the Government’s functions is a requirement to process significant volumes of personal data, whether in issuing a passport or providing information on vulnerable persons to the social services departments of local authorities. The Government recognise the strong public interest in understanding better how they process that data. The framework is therefore intended to set out the principles and processes that the Government must have regard to when processing personal data. Government departments will be required to have regard to the framework when processing personal data. This is not a novel concept. Across the country, organisations and businesses produce guidance on data processing that addresses the specific circumstances relevant to them or the sector in which they operate. This sector, or organisation-specific guidance, coexists with the overarching guidance provided by the Information Commissioner.

This framework adopts a similar approach; it is the Government producing guidance on their own processing of data. The Information Commissioner was consulted during the preparation of these clauses and will be consulted during the preparation of the framework itself to ensure that the framework complements the commissioner’s high-level national guidance when setting out more detailed provision for government.

--- Later in debate ---

Moved by

[Earl Attlee]

216: Clause 195, page 112, line 31, at end insert—
“( ) sections (Publishers of news-related material: damages and costs) and (Publishers of news-related material: interpretive provisions);

Data Protection Bill [HL]

Earl Attlee Excerpts

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

What do the Government have in mind? Am I right in assuming that in relation to this specific review the Information Commissioner is able to serve an assessment notice or an information notice that relates to journalistic material? If so, there is a problem there, because I do not think that it would be right for the Information Commissioner to be entitled to ask for information before publication. Nobody is in favour of prepublication material being available. Let us suppose that a newspaper tricks a doctor into giving confidential medical information about a patient and then publishes it. Should the Information Commissioner, when he comes to do his cyclical review, be able to serve an information notice on a newspaper saying, “Is it true that you did the following in relation to getting material about somebody from a doctor?” I do not know what the Secretary of State has in mind here but he appears to be pointing in two rather contradictory directions. Can the Minister assist us with what is intended by the after Schedule 16 powers to which my amendment relates?

[Earl Attlee (Con)]

My Lords, although it is perfectly correct to debate the Government’s Motion to agree with the Commons, I am not convinced that it is a good idea even to debate a further Lords amendment in lieu at this point. As my noble friend Lord Cormack pointed out, we are out of time. I agree with my noble and learned friend the Minister that the Bill is good enough and, if there is a vote, I will support the Minister.

I share the worries about the new role of the Secretary of State but unfortunately I do not think that it is an appropriate role for the Press Recognition Panel. The PRP has a very specific role, which is to test whether the approved regulator meets the standards laid out in the royal charter.

The House will be pleased to hear that I have cut out seven minutes of my speech. Nevertheless, I will be engaging with my noble friend Lord Black of Brentwood to explore how we can achieve what we all want: a free, vibrant, sustainable, competent press that adheres to the rules and acts decently, but which cannot be chilled by a very rich complainant.

[Lord Stevenson of Balmacara (Lab)]

My Lords, the test has been given to us: we have to assess whether or not this Bill is good enough to pass. It is not the test I think we were expecting. It is quite refreshing in some ways because it means we do not have to look at every jot and every tittle, every “i” and every “t”, to make sure they are correct—we can just say that it is good enough so go with it. I am not sure it is the test that will sustain in your Lordships’ House for time to come, and perhaps we can draw a veil over it once we have got through this short period.

Is the Bill good enough to pass? Yes it is, and I have no doubt that it will pass today. However, it leaves behind two or three unanswered questions and some substantial issues that we will have to come back to. I think we have heard enough in the speeches today to know that these issues are not finally vanquished: they are present and they will be back, and we should think about that. If we wanted any assurance that this goes across all parties, all disciplines and all times, the speech by the noble Lord, Lord Fairfax of Cameron, put us absolutely on the spot. There is a sense that a great injustice has happened and a sense of fairness among UK citizens to want to see it organised better and done again. There was an all-party consensus—the evidence is that there still is an all-party consensus—that we should do it.

This was not the right Bill—I always said that it was not—but we have made huge changes to the way in which the Government were proposing to legislate in this area, changes which I welcome. Victim of the timing as we are, if there had been more time available, we perhaps could have sorted out many more of them. But we are not going to be able to do that because we must get the Bill through before midnight on 25 May. I absolutely subscribe to that.

What is left to do? There is no doubt that we have to know more about who did what to whom in the period running up to the Leveson inquiry being announced in November 2011. My Amendment A2 would have given the Information Commissioner powers to look at that and to provide what would effectively be a benchmarking report to allow subsequent work “looking forward”—in the words of the Secretary of State—to have a proper sense of what it was they were testing. I still think that that would be the right solution, but the noble and learned Lord made some welcome remarks from the Dispatch Box at the beginning of the debate and I accept those as being sufficient to make sure that I can withdraw the amendment at the appropriate time.

There is the narrow question of whether we should look at the particular points raised in the two other amendments. I think they are victim to the problems that we have had with this Bill, in that we have not been able to give detailed scrutiny in Committee or on Report to issues that we perhaps should have done had they been around. It is good that they are there and that the Government have listened. It is fantastic that they are prepared to work with us on these issues; much of the wording here has come out of discussions and debates with Ministers outside the House, and we have seen the benefit of that.

However, Amendment 62BC as proposed by the noble Lord, Lord McNally, worries us, and my noble and learned friend Lord Falconer made the point very well. It states:

“The Secretary of State must, before the end of each review period, lay before Parliament a report produced by the Secretary of State or an appropriate person on … the use of relevant alternative dispute resolution procedures … and … the effectiveness of those procedures in such cases”.


That goes a bit too close to whether it is politicians—the Secretary of State in this case—directing how independent assessments should go forward. I would be grateful if the noble and learned Lord could comment on that. It may well mean that the Secretary of State has the power but the actual work is done by others and, as was always going to be the case, that it is just a report and not a review. The confusion comes, I think, from having “review period” specified in the Bill, which is something that we would have picked up earlier.

On my noble and learned friend Lord Falconer’s amendments, there are issues around whether we are, in some senses, giving a responsibility to the Information Commissioner but not the powers to do the job that we want done. Again, some words from the Dispatch Box might help. I have covered my Amendment A2, in the sense that I think that responses have come back.

Is there a future for work in this area? Yes, there is. IPSO has made a significant change to its working practices since it was established and is now doing good and effective work. I do not disagree that the right thing is to let it continue on its path, watch how it goes and look at the reports that will be made on its effectiveness under Amendment 62BC.

We should not be tempted to change the structure of the PRP and its approval of independent press regulators. It may seem otiose but, as there are now 100 titles signed up to it, at least it is doing something right. As the noble Lord, Lord McNally, said, that system may well have something to offer Facebook, Google and others who might be interested in making sure that they are properly regulated.

Given that we are looking forward and the worry that we have in a liberal democracy of being able to see the kind of quality press and comment that we have in our present print journalism, which I support entirely, the review being carried out by Frances Cairncross will result in a number of recommendations and it is possible that we will need to legislate for that. These issues could come back relatively soon and I hope they do. There is enough all-party support in this House and the other place to get some movement on that and we will be happy to do so. For the moment, we wish the Bill well. It is good enough and we hope it will come into force and do the job it is meant to do.