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.

--- Later in debate ---

[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.