Data Protection Bill [Lords]

Liam Byrne Excerpts

Money resolution: House of Commons & Programme motion: House of Commons
Monday 5th March 2018 Commons Chamber

[Peter Heaton-Jones]

The hon. Lady is right that the Press Complaints Commission did fail, which is why it is rightly no longer there and we now have a new framework. While we are talking in general about regulation, I should say that I have some sympathy with the question marks raised over the regulation of my former employer, the BBC. We got that wrong for many years. There was the bizarre situation in which the BBC board—later, the BBC Trust—was acting as both poacher and gamekeeper, marking its own homework. The Government have rightly sought to put that right and we have moved a long way towards doing so.

I do not believe that the answer to the wrongs that still exist in the regulatory regime for newspapers lies in the amendments that have come our way from the other end of the Palace of Westminster. I do not believe that they would do the job that, as my hon. Friend the Member for North Herefordshire rightly said, the people outside this place want us to do: to make sure that they have a fair right of reply when something wrong is done to them by newspapers.

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

I am grateful to the hon. Gentleman, who is being characteristically courteous in giving way to so many Members. Can he point to another area of public policy in which as many suspicions have been aroused, but that has been improved by our collectively deciding to just move on and leave things in the dark?

[Peter Heaton-Jones]

No one is suggesting just moving on and leaving things in the dark. That is not at all what the Government intend to do. If we look carefully at the words the Secretary of State used on Thursday, we see that there is no question of our moving on and saying, “There’s nothing to see here.” We are saying that the mechanism suggested in the amendments from the other place is not the right way to proceed. I agree with the position taken by the Secretary of State.

[Liam Byrne]

With the greatest of respect, regulations are forward looking, but the inquiry that we are seeking goes into past malpractice for the simple reason that we would like justice to be done.

[Peter Heaton-Jones]

I do not believe that the inquiry that the other place seeks, through its amendment, to impose on the Bill would do the job that the right hon. Gentleman wants done. The position that the Secretary of State laid out on Thursday is the right way to proceed. Leveson 2 would simply not do the job that many Members on both sides of the House want it to do.

I am going to move on, as I am thinking about Mr Deputy Speaker’s strictures about timing.

--- Later in debate ---

[Mike Wood]

I understand exactly the hon. Gentleman’s point, with which I have a little sympathy. However, when the media are behaving unfairly and something is inaccurate, distorted or misleading, it is of course right that there are proper procedures for redress. I have absolutely no problem with greater access to justice, but, on the measure’s own terms, it would fail in this regard.

Clearly, the hope is that the proposal would somehow pressure the media into signing up to a state-approved regulator, but for those who remain outside such a system, changing the basis for awarding costs would not improve access to justice. It would not prevent our libel and defamation laws from being the preserve of the already rich and powerful. All it would do is deter proper, quality investigative journalism. It would deter community and local reporting, where, shall we say, conflict within communities is not unheard of. If, when a claim is brought, there is an assumption—not quite but almost without regard to the merits of the case or who the claimant is—that the defendant will have the costs awarded against them, that is an enormous disincentive to continue with a story, even when doing so is clearly in the public interest. It must be the case, when there is criminal behaviour and when something is actionable—

[Liam Byrne]

Will the hon. Gentleman give way?

[Mike Wood]

I am just concluding. When something is criminal, the full weight of the law should fall on those who break it. When something is actionable, we need streamlined procedures that actually work—an array of alternatives, not just the one-trick pony in this proposal. However, when publishers are confident that their story is accurate, fair and proportionate, the only proper response is to publish and be damned.

--- Later in debate ---

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

This has been quite a useful debate for rehearsing the arguments and divisions that I suspect we will have when the Bill moves upstairs to Committee. Some of our debate, particularly in the speeches made by Opposition Members, has even been about data protection.

It is probably fair that I start with the note of unity that the shadow Secretary of State, my hon. Friend the Member for West Bromwich East (Tom Watson), set out at the beginning of his remarks. I think there is a great deal of optimism on both sides of the House about the possibilities of technology in the years to come. The philosophical difference is that we genuinely believe that the new world of trade for the years to come will be built on a world of trust. If we are to have a really robust foundation of trust in the digital economy that will take shape over the course of this century, we will need a strong regime of rights. We need rights that are comprehensive and genuinely enforceable in courts, where necessary, and those rights need to live in a democracy that has safeguards, including safeguards around the way in which elections are fought in the digital age—those elections need to be free and fair—with a press that is clean.

The problem with the Bill, as we see it, is that it is an opportunity missed. The Secretary of State argued that it was forensic; we would argue that it is a little bit more piecemeal. It is not haphazard; it is seeking to do a job by incorporating a substantive bit of legislation from Brussels into British law. However, we are troubled that the privacy provisions are not quite robust enough, and that argument was well made by a number of my right hon. and hon. Friends. In particular, the decision not to include the text of article 8 of the EU charter of fundamental rights to safeguard privacy and ensure that adequacy agreements will be there in years to come was an error. The approach is just too risky, as my right hon. Friend the Member for East Ham (Stephen Timms) warned.

These risks of divergence are serious because so much of our exports, in particular to Europe, are services exports. Some 70% to 80% of those services exports may be digitally enabled, so we simply cannot afford any risk whatsoever. We need to put all risk to any future adequacy agreement beyond doubt.

My hon. Friend the Member for Bristol North West (Darren Jones), our man for definitions and a great deal more, made a very effective point about this not being a one-off exercise. This process will endure, so we are trying to make sure that British and European courts interpret privacy law in a way that is continually consistent over the years to come.

We all need to recognise the juggling act that the Prime Minister is trying to perform. We all need to acknowledge with some honesty the creative ambiguity that she sometimes needs to sustain to keep everybody on the train. I think we all recognise the precariousness of her position. We know that her personal position as captain of the ship is not trouble-free, so I think that those on the Treasury Bench will forgive us for not relying on the full weight of a No. 10 press release, as terribly robust as that is, as ensuring that adequacy provisions will be secured through the commitments that she has made to protect privacy. We would much rather rely on the full weight of the law, because that feels like a much more reassuring position.

In the modern economy, there are rights that we need to take into account. Those rights are new and increasingly necessary in the modern age, such as the right not to suffer as a result of decisions made not by humans but by algorithms. My hon. Friend the Member for Cambridge (Daniel Zeichner) made the powerful point that the great risk of algorithms that take decisions is that they may hard-code old injustice into new injustice. That idea should trouble us all. The Bill does not include adequate safeguards against that at the moment, so we will need to address that.

We heard the troubling line of argument in the debate that we should carve out newcomers to this country from the rights and safeguards that are enjoyed by everybody else under the Bill. I have to say to the Minister that the measures on immigration are a mistake. We will seek to delete them, and I hope she accepts that initiative. I was the Immigration Minister who introduced the biggest shake-up to our immigration system for 40 years. I created the UK Border Agency, and I introduced the points system. In my two or two and a half years in the Home Office, I came to learn that our immigration system is not some celestial design—it is a human institution. The Home Office and the immigration system take decisions that are bad or wrong and that need to be corrected. If we delete the protections under the Bill for newcomers, we will put justice in jeopardy. We will genuinely risk denying justice to those newcomers who need information to fight their cases effectively.

I lost cases that were brought because people were able to draw on information through subject access requests, and justice was eventually done in those cases. However, mistakes are made, and I do not think the Minister wants a system that is so prone to error. We have to build in checks and balances to the immigration justice system, and she has perfectly adequate safeguards on crime prevention in the Bill. As a former Home Office Minister, I can recognise what is basically a gratuitous land grab by the Home Office. These powers are not needed, and I hope the Minister will ask her Home Office colleagues to look at the provisions again.

For rights to be real, there needs to be a method of enforcing them effectively, which is why the provisions for collective redress are so important. The shadow Secretary of State talked about the work that we have done with people such as Baroness Kidron in the other place on safeguarding rights for children. A third of internet users are children, and we need to ensure that their rights, along with those of everybody else, are actually enforceable. The idea that a child whose rights are violated will take Facebook to court is, frankly, fanciful. We need to allow consumer organisations and others to take what are in effect class actions, because otherwise the implementation of rights risks being weak, undermining not simply justice, but the strength of our regulatory regime.

We will want to propose other, more comprehensive rights. We are not under any illusions about the Government accepting our data Bill of rights in full, but we want to make sure that such rights are on the table because we are at the start of a process. Just as there were something like 17 Factory Acts during the 19th century, there will be many data protection and e-commerce modernisation Acts over the next 80 years. I am afraid that Members will, for better or worse, have to get used to that process. We think that putting in place a strong framework for rights and enforcement now is just a wise precaution for the future.

As we have heard in many contributions, there will be quite a lot of toing and froing about some of the amendments made in the other place. I hope that many in the House will not take the approach of the hon. Member for North Devon (Peter Heaton-Jones). I feared at times that he was anticipating that we could somehow secure justice regarding suspected historical offences by closing the door, switching off the lights and pretending that nothing had ever happened. I do not think that there are many fields of public policy in which that has proved to be a successful foundation for reform. It is important that we delve into offences that took place in the past.

My hon. Friend the Member for Hammersmith (Andy Slaughter) made some important points. Politicians on both sides of the House made promises to the victims of phone hacking, and it is an extremely dangerous precedent for a Secretary of State to say, “Yes, I know we made promises about an inquiry but, you know what, we don’t think that inquiry, even though it isn’t finished, really should wind its course to a conclusion.” It is not a satisfactory state of affairs when the Executive can intervene and, in effect, seek to stop inquiries in their tracks, in the teeth of opposition—in this case, from the noble Lord Leveson—setting out why they should actually continue.

I hope that many Members will, like the hon. Member for North Herefordshire (Bill Wiggin), argue for the importance of honouring promises made in the past, and indeed of making sure that we have a press regulation regime that balances the interests of a free and fair press with the need not to defame people wilfully. The Government are making an odd argument by asking us to take them seriously when they want to install a new data protection regime, while at the same time short-circuiting an inquiry into the most egregious violations of data privacy that we have ever seen in the public sphere. I am afraid that that approach does not inspire a terrific amount of confidence, so I hope that the Minister and the Secretary of State will listen again to the pleas of Lord Leveson and reconsider their support for the amendments that were carried with such force in the other place. The Government may make their own proposals, but I suspect that there will continue to be a strong body of support in the other place for those amendments.

[Stephen Timms]

May I take it from what my right hon. Friend says that the official Opposition’s position is that we will support the retention of the amendments agreed in the other place?

[Liam Byrne]

My right hon. Friend is absolutely right. We will support the retention of those amendments, and we will seek to offer a much more wide-ranging, comprehensive approach, which we think the Government should take. We will offer a much more comprehensive, well-rounded and thought-through system of rights for the digital age. We will offer an effective means of safeguarding those rights through the introduction of new forms of collective redress. We will offer new safeguards that help to protect our democracy and that ensure free and fair elections and press justice.

We will also seek to prompt the Government to confirm precisely when they will modernise the e-commerce directive, because many of the threats to freedom in the digital age will come from the fearsome five data giants of this age, which will need regulating in new ways. I think there is some cross-party consensus about the need for the e-commerce directive to be modernised, so we will table amendments that will encourage the Government to get their skates on. Crucially, however, we will table amendments that put beyond doubt the future of any adequacy agreement with the European Union.

As the economy changes, so must the law. There will be many more data and privacy laws to come in the years ahead. We will encourage the Government to put in statute a framework that is not merely fit for today, but fit for the future.

[The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)]

I thank all Members for their contributions to this excellent and wide-ranging debate and their lordships for the immense amount of work that they have done on the Bill thus far. Members on both sides of the House want a Bill that protects personal data and allows individuals to maintain control over what is their property and what is important to them, and we want these rights to be enforceable. That is a positive start on which we can all agree.

Various Members, including the hon. Member for Bristol North West (Darren Jones), the right hon. Member for East Ham (Stephen Timms) and the shadow Minister, stressed the importance of the continuity of adequacy post Brexit. The hon. Member for Bristol North West asked what the Prime Minister meant by saying that she wanted to achieve more than adequacy. It was, I am sure, to ensure that the Information Commissioner can continue her excellent contribution to the evolution of the GDPR through her association with the European data protection board, when that comes into being.

The hon. Member for Argyll and Bute (Brendan O’Hara), the hon. and learned Member for Edinburgh South West (Joanna Cherry), the right hon. Member for Kingston and Surbiton (Sir Edward Davey) and many others mentioned immigration. I want to reassure the House that we are seeking not a blanket exemption, but something that can be applied only when complying with a certain right would be likely to prejudice the maintenance of effective immigration control. Every request to exercise a right under the GDPR would still have to be considered on its individual merits, and the rights of appeal required by the GDPR remain in place.

There was a great deal of debate about the freedom of the press. In the short time that I have, I cannot do justice to the fantastic contributions from my hon. Friends the Members for North Devon (Peter Heaton-Jones) and for South Dorset (Richard Drax) and the hon. Members for Edinburgh West (Christine Jardine) and for Keighley (John Grogan). We heard the real show stopper from my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who was listened to with rapt attention as he contrasted the pretence of freedom of speech with the reality of control, which would be the result of the amendments to which we have been asked to agree. The Government have been clear that we will attempt to defeat them in this place.

We have had a very valuable debate. We have touched on various issues—children and social media, artificial intelligence and cyber-resilience—and there are others that we will address subsequently.

[Liam Byrne]

Will the Minister give way?

[Margot James]

I will have plenty of time in Committee to debate with the right hon. Gentleman. I am sure that we all agree that the Bill is important and timely.