Data Protection Bill [Lords] (Sixth sitting)

Liam Byrne Excerpts

Tuesday 20th March 2018 Public Bill Committees

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

On a point of order, Mr Streeter. The Minister suggested this morning that the Secretary of State for Digital, Culture, Media and Sport had not committed to the House yesterday to introduce powers to strengthen the Information Commissioner. However, on checking Hansard over lunch, I noticed that the Secretary of State said that where there is non-compliance with an audit,

“there is a very serious fine, but the question is whether the criminal penalties that can be imposed in some cases should be further strengthened. That detail is rightly being looked at in the discussions on the Data Protection Bill.”—[Official Report, 19 March 2018; Vol. 638, c. 51.]

Most of us would assume that “further strengthened” meant that further powers would be suggested, but the Minister seemed to say this morning that that would not be the case. Could she clarify whether such amendments will be tabled?

[The Chair]

It is up to the Minister to decide whether she wishes to respond to that point of order.

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[Brendan O'Hara]

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

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

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

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

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

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

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

[Liam Byrne]

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

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

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

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The right hon. Gentleman made great play on the fact the former Prime Minister said that Leveson 2 will go ahead. Indeed, he did. It was before my time in the House—I am not as long serving as other Members—but the fact is that things have changed markedly since the former Prime Minister made that commitment on going ahead with Leveson 2. The landscape has changed markedly. It is absolutely right that we take account now, in 2018, of the situation that we find ourselves in. Given that Leveson 1 has happened, given what we know Leveson 1 was able to achieve and what it was not able to achieve, and given some of the reforms that have since taken place, it is absolutely right that the current Government in 2018 revisit the matter. In my view, they have reached absolutely the correct conclusion: the grounds on which Leveson was originally to go ahead no longer are justified.

[Liam Byrne]

Like the hon. Gentleman, I wish that the entire media operated with the editorial standards of BBC Essex and the Swindon Advertiser. I was struck by a remarkable statement: that he believes that the mispractice or malpractice still goes on—I have written down carefully the words that he used. I cannot, therefore, understand why the conclusion he draws from the persistence of malpractice is to look the other way and to shut down an inquiry into whether it took place and who the guilty are. I would be grateful if he can correct me on my misunderstanding.

[The Chair]

Order. First, let me correct a possible misunderstanding. The right hon. Member for Birmingham, Hodge Hill mentioned that clauses 168 and 169 will be debated later. In fact, we are debating them as part of this group, as I tried to make clear when I introduced amendment 137.

[Peter Heaton-Jones]

Thank you for that clarification, Mr Streeter.

There is nothing remarkable about what I said. Quite clearly, there is still malpractice going on in the journalism industry. Is the right hon. Gentleman honestly trying to say that that is a remarkable thing to say?

[Liam Byrne]

Yes.

[Peter Heaton-Jones]

It is not remarkable at all. Of course it is going on, but establishing and carrying out Leveson 2 would do nothing to solve that problem and nothing to bring justice to the members of the public who have been done wrong by that small number of journalists who are acting in that way. I do not know why the right hon. Gentleman finds that a remarkable statement to make.

As for the statement that he made on Second Reading—that the Government’s position is to say, “Nothing to see here—absolutely nothing happening”—that is not what the Government are saying at all. The Government’s position is clear: Leveson 2 simply would not do what I think the right hon. Gentleman and probably everyone in this room would like it to do, which is to be some sort of cleansing disinfectant that solves all the problems. It simply will not do that.

[Liam Byrne]

As much as I respect the hon. Gentleman’s omniscience, how could he possibly know that?

[Peter Heaton-Jones]

It is a big gamble to spend potentially £50 million when we are not sure whether it will have the required outcome. That is the point. The Lords amendment would start the Leveson 2 process, which would cost at a very conservative estimate £50 million, potentially last for a huge amount of time and still not get to the answer that we want. There must be better solutions.

I had started to discuss the fact that the landscape has changed and that the very framework in which we work has changed markedly since the former Prime Minister made the commitment to go ahead with Leveson 2. There have been huge changes. Not only have we had the Leveson 1 inquiry, which in its own terms of reference touched on many of the issues that the proposed Leveson 2 inquiry would cover, but we have had any number of changes, improvements, and reforms in the way the police and indeed the media operate. We have had Operations Elveden, Tuleta and Weeting, which included Operation Golding, all of which have investigated a wide range of practices in the interaction between the police and members of the media and journalists. At a total cost, incidentally, of about £40 million for those operations, they have done good work and all of them have resulted in significant reform.

When I first joined the journalistic trade, way back in 1986, there was malpractice on a scale that we would not believe, and it was completely normal for journalists to pick up the phone to a friendly police contact and get whatever information they wanted to write their next report. That was absolutely normal. It is not normal now. I am sure it still happens, but it is now not the norm, which is good. That is why we do not want to turn the clock back and commit ourselves to a very long inquiry—a Leveson 2 inquiry—which would not do what we want it to do.

Where malpractice occurs in the media, where cases such as those raised by the right hon. Gentleman come to light, and where members of the public are treated in the most despicable way by journalists, I want people to be able to have the right to redress, to have their day in court, and to be able to say, “This is what has happened and it must change,” but Leveson 2 would not do that. It would not provide the means by which that happened. That is why the Secretary of State for Digital, Culture, Media and Sport was absolutely right to make the decision and to say that Leveson 2 is not on the Government’s agenda, and nor should it go ahead. It is perhaps worth pointing out also that this Government were elected only nine months ago on a manifesto that specifically said that Leveson 2 would not go ahead. That was a manifesto commitment.

Mr Streeter, may I just seek absolute clarification from you? From your earlier instruction, are we now also talking about section 40?

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[Peter Heaton-Jones]

Thank you very much indeed.

I do not really have much to say. To be clear, we are considering the amendment made in the other place. It seeks to enact section 40 of the Crime and Courts Act 2013, which this Government and the Secretary of State have said we will not do—indeed, they have said that we wish to repeal section 40.

It is very clear in my mind that we need to reject the amendment made in the other place. There is a very straightforward reason, which is that section 40 does one key thing: it seeks to persuade media organisations, specifically newspapers, that have not signed up to a recognised regulatory body to do so by providing a financial inducement of the most “blunt instrument” kind.

I have here a document from the House of Commons Library; for the record, I emphasise that the House of Commons Library is neutral. The document discusses why section 40 of the Crime and Courts Act 2013 was introduced. The Library says that it was intended to

“coerce or incentivise publishers to become members of a recognised regulator”.

That is language that we should be worried about. The reason we should be more worried about what section 40 will do—it is pretty straightforward—is that if a member of the public brings a defamation action against a newspaper, it goes to court and the newspaper wins the case, that media organisation is still financially liable to pay the costs of both sides.

Quite simply, that will encourage a lot of entirely superfluous and vexatious legal actions to be brought by people who just have some kind of beef against the media and pockets bulging with cash that allows them to do so. When, as will inevitably happen, the media wins the case, because it was built on sand, the media organisations concerned will be put out of business by the requirement to pay the legal costs on both sides.

[Liam Byrne]

The Minister is cheering on the hon. Member, but will he for complete clarity remind the Committee who proposed this architecture in the first place? From memory, it was his right hon. Friends the Members for West Dorset (Sir Oliver Letwin) and for Basingstoke (Mrs Miller).

[Peter Heaton-Jones]

I was not in Parliament at the time. I have only been here for two and a half years. We go back to the point that I made in relation to the previous clause. The ground has shifted. We now know what the effect will be. The other place debated this in some detail; the arguments were put extremely strongly, and by a narrow majority their lordships, as is their right, passed the amendment and asked us to consider it. It is perfectly right that they are asking us to consider it. It is perfectly right that we say: “Up with this we will not put.” Section 40 will have precisely the opposite effect to what probably anyone listening would hope it to have. It will be an extraordinarily damaging measure for the future of the freedom of the press in this country. It will have the effect of preventing publication of material which is in the public interest and which is true, legitimate, and fair, because newspaper proprietors will not be able to afford the risk of going to a court case which they win but still have to pay the costs. It will be an incredible impediment to the free press in this country. For that reason more than any other we must reject the amendments that come from the other place.

[The Chair]

One or two colleagues have caught my eye because I was not clear enough in my introduction to this section. I invite Mr Liam Byrne to readdress the Committee in relation to these clauses.

[Liam Byrne]

I am grateful to you, Mr Streeter, for setting that out so clearly. I want to speak in defence of clauses 167 and 168.

I am clearly an innocent abroad in a world that is not innocent. I struggle to follow the argument made by the hon. Member for North Devon. On the one hand he was pretty insistent that malpractice continued, but then invited us to believe that somehow the world had changed comprehensively. Either the world has changed or it has not. I fear that the world has changed a bit, but not enough, so there is still a need for an effective means of offering justice to those who have been maligned by newspapers.

The architecture set up by the right honourable Members for West Dorset and for Basingstoke was complicated. We have a fine tradition of a free press, going back to the restoration. One of the reasons why the industrial and scientific revolutions flourished in this country was that we had a culture of free speech—something that Voltaire admired greatly when he spent time in London. However, the reality is that bad behaviour by the press has destroyed people’s reputations without any real chance of recovery. In a world of social media, when reputations are destroyed, the smears stick to people like tar. They do not go away; they stay with people and scar them for life.

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[Matt Warman (Boston and Skegness) (Con)]

I shall be mercifully brief. As a print journalist for 15 years, I start by saying that the entire industry was genuinely horrified to learn of the extent and the offences that had been committed by organisations that, in the main and over many centuries, worked genuinely in the public interest. We should not forget that journalists who work in the media today, and were doing so while that was going on, are in the main trying to do the kind of public service that we would all defend. We should not underestimate the horror with which the industry greeted the stories of what happened to the Dowler family and many others, be they celebrities or other victims. I hope we would agree across the House that the media in the main have fulfilled that remit. I should also say, as did my hon. Friend the Member for North Devon, that I have a great deal of sympathy with the amendments proposed by the Scottish National party. We should prize consistency above all else in this area.

The right hon. Member for Birmingham, Hodge Hill said that he was surprised to learn that the Government did not seek to proceed with the second part of the Leveson inquiry. It was in our manifesto, so his surprise is surprising. I can only conclude that he did not read the Conservative manifesto. Perhaps he read the Labour manifesto and was so horrified he could not face reading another one.

[Liam Byrne]

I just could not understand it.

[Matt Warman]

The Labour one? Quite right. We should bear in mind the two things used in favour of the position taken by the Conservative party and the Government in the manifesto. The first, as my hon. Friend the Member for North Devon said, is that the world has indisputably moved on. Even Sir Brian Leveson agrees that the world has moved on. The challenges that face our modern media are not the challenges that would have been subject to the Leveson inquiry. The more important point is that, where there are legitimate concerns about the media and how people are treated, the solution to that is effective and independent regulation, and that is what we have now more than ever.

[Liam Byrne]

The hon. Gentleman served on The Daily Telegraph long enough to know that the IPSO code today bears a striking resemblance to the old editors’ code. Perhaps he could give us the benefit of his experience and tell us whether he is satisfied that the IPSO code meets the tests set out by Sir Brian Leveson and agreed in all parts of the House.

[Matt Warman]

I will say two things. I had a mercifully limited engagement with what was then the Press Complaints Commission, although we did have to deal with some complaints in my small bit of the paper. Although we took it seriously, it is in no way comparable with the seriousness that IPSO is now taken. That might be down to the fact that the scale of the apology that can be demanded by IPSO, and has to be given, is exponentially greater. That is a crucial deterrent when it comes to the work done by journalists in the newsroom, who sometimes regard their editors as figures of great fear as much as great role models.

The other side is that we have a crucial low-cost arbitration system that allows people who are not of the means that the right hon. Gentleman described to bring cases against the media and get the redress they deserve when people make mistakes. Those are the two crucial differences between the PCC and IPSO. The latter is a fundamentally more powerful, very different regulator, but it has the credibility and independence that IMPRESS will simply never have.

[Liam Byrne]

Would the hon. Gentleman give way?

[Matt Warman]

I thought the right hon. Gentleman might want to come in.

[Liam Byrne]

The hon. Gentleman was an experienced and respected journalist and has a track record on which to draw in his reflections. He did not quite answer the question whether he thought the code of conduct that IPSO regulates meets the tests set out by Sir Brian Leveson and agreed on both sides of the House. Will he reflect on whether the code of conduct is prone to changes driven through by newspaper editors? There is no guarantee that newspaper editors cannot influence that code, and its shape and bite, in the years to come.

[Matt Warman]

The right hon. Gentleman is right that there is a continuous thread to the sensible key principles of press regulation, and for journalists to have a role in shaping those is not entirely illegitimate. None the less, we must bear in mind that those principles should serve the public before they serve the press. That is what is in the principles that Sir Brian Leveson sought to suggest. The right hon. Gentleman is right that we agree on those on both sides of the House, and that IPSO strikes the right balance. The sense that both the world and the regulator have changed should reassure both Opposition Members and members of the public who would like the Government to secure a free but sensibly regulated press that serves all of us.

[Matt Warman]

I agree, which is why IPSO rather than IMPRESS strikes the right balance between the two. The right hon. Member for Birmingham, Hodge Hill made great play of David Cameron promising IPSO, but I would make great play of Government delivering on the manifesto pledges they made when they fought an election in 2017. Not doing what he set out also delivers on a promise—the more recent promise should take precedence.

My hon. Friend the Member for North Devon powerfully made the case against section 40, which seeks to punish the victim. That would obviously have a clear chilling effect not only on our local newspapers, which are often on the brink of bankruptcy, but on the broader media. We can look at fantastic pieces of journalism even today, such as the one about Cambridge Analytica. The Guardian itself says, “Please, we would like your donations so we can keep our valuable journalism free”—the paper has had to fight off three pieces of legal action by Cambridge Analytica and one from Facebook. Those huge corporations seek to shut down legitimate investigation, and the right hon. Member for Birmingham, Hodge Hill suggests that if they were to bring and win cases, The Guardian should pay for them. That is an extraordinary position to take.

[Liam Byrne]

rose—

[Matt Warman]

I am sure the right hon. Gentleman is about to assure me that he is not taking that position.

[Liam Byrne]

Let us be real about this. The idea that companies such as Facebook or Cambridge Analytica will desist from legal action to shut down stories that they do not like—the idea that that will not happen at any time in the future, even under the existing regimes—is for the birds. The argument that is better made by some of the hon. Gentleman’s colleagues is to do with the risk to local newspapers, most of which are now owned by Trinity Mirror, which makes tens of millions of pounds in profit, or the Johnston Press. The point is that vexatious claims can be shut down and thrown out at any one of three stages by the regulator or, before the case goes to arbitration, by the arbitrator or by a judge, so the incidence of costs arising will not be on the scale the hon. Gentleman anticipates. Equally, he must accept that, without a form of low-cost arbitration, justice is denied to people who are maligned by newspapers.

[Matt Warman]

I enjoyed the right hon. Gentleman’s speech, but I disagree with him profoundly. I worked for a newspaper that had, by comparison with our local papers, an enormous budget. The threat of having to pay the legal bills of Facebook and Cambridge Analytica would have a profoundly chilling effect, even at the very highest level of journalism.

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[Liam Byrne]

Finally and very briefly, the hon. Gentleman is making an eloquent argument. Why, then, was that proposed by the right hon. Members for West Dorset and for Basingstoke? How did they get it so profoundly wrong?

[Matt Warman]

That is a fascinating philosophical question, but I can only tell the right hon. Gentleman that I would not have voted for it. I appreciate that he will say that it is easy for me to say that now, but the idea that people in this place would be convinced that it is the best possible model is simply not plausible after the statements that my hon. Friend the Member for North Devon and I have made today. Surely we need a set of press regulations that preserves the independence of the media, and their ability to invest in journalism at local and national level, which we all want if we are to hold the powerful to account. We also need regulations that allow hon. Members to say with a clear conscience that we have done nothing that puts those businesses in serious jeopardy.

It does not seem to me that a costly Leveson 2 is the best use of public money, or that the threat of section 40 will ever be the best use of private money, putting legitimate local and national media out of business. Those arguments seem to me like a powerful case for IPSO, and for a sensible look at the sustainability of the press, as the Prime Minister has set about doing. They do not under any circumstances seem to me like a good reason to vote for the amendments.

[Margot James]

I will set out the Government’s position on clauses 142, 168, 169 and 205, before returning to the amendments in the name of the hon. Member for Argyll and Bute.

As we have heard, clause 142 requires the Government to establish an inquiry with terms of reference similar to those contained in part 2 of the Leveson inquiry, but in relation to data protection only. The Government set out our intention not to reopen the Leveson inquiry in our response to the consultation on the future of the inquiry on 1 March. I will not repeat the arguments in full, but I will say that the Government’s firm focus is on the problems faced by the media right now.

The Government recognise that there is a great deal of feeling on both sides of the debate. We have listened to all views, including those of victims, in reaching a decision. No one seeks to excuse the past behaviour of individual media organisations, nor to legitimise it. As the right hon. Member for Birmingham, Hodge Hill said, some of the stories we heard at the beginning of the Leveson inquiry were horrific. The Government have a duty, however, to make decisions that are proportionate and in the public interest. In the light of all the evidence available, it is apparent that part 2 of the inquiry is no longer appropriate or proportionate.

Part 1 of the inquiry lasted over a year, and heard evidence from more than 300 people, including journalists, editors and victims. Since then, the majority of the Leveson recommendations have been implemented. Three major police investigations examining a wide range of offences have been completed. More than 40 people were convicted, some of whom were sent to prison. There have also been extensive reforms to policing practices, and significant changes to press self-regulation.

As a result, the terms of reference for part 2 have largely been met, and the culture that allowed phone hacking to become the norm has changed. Meanwhile, the media are facing critical challenges that threaten their sustainability, including fake news, declining circulations and gaining revenue from online content. Free and vibrant media are vital to democratic discourse, and we need to tackle those challenges urgently. Holding a costly and time-consuming public inquiry looking predominantly backwards is not the right way to go.

The Government are committed to addressing these issues, and we are developing a digital charter to ensure that new technologies work for the benefit of everyone, with rules and protections in place to keep people safe online and to ensure that personal information is used appropriately. As part of that, we are also undertaking work to ensure that there are sustainable business models for high-quality media online. The media landscape is different and the threats are different, too. Issues such as fake news mean there is a need to protect the reliability and objectivity of information.

Likewise, clauses 168 and 169 are similar to the provisions contained in sections 40 and 42 of the Crime and Courts Act 2013, but apply to breaches of data protection law only. The Government do not believe that introducing a provision similar to section 40 of the 2013 Act into the Bill is appropriate, but in relation to data protection only. That is particularly so given our decision earlier this month to repeal section 40 when there is a suitable legislative vehicle. In coming to that decision, we considered all the available evidence, including the views of respondents to the public consultation that we undertook last year. Many respondents cited concerns about the chilling effect that section 40 would have on the freedom of the press, which was so ably summed up by my hon. Friend the Member for Boston and Skegness.

[Liam Byrne]

Will the Minister tell the Committee why she supported it when it came to a vote last time?

[Margot James]

The right hon. Gentleman has made great play of the former Prime Minister’s statement. I remind him that that statement was given six years ago. Much has changed since. My hon. Friend the Member for North Devon tried to make the point that, although we cannot rule out that egregious conduct is still going on in the press, as I imagine there is in virtually every other sector of society, we can agree that much has changed and improved. That is why the Government have changed their direction. I hope that satisfies the right hon. Gentleman.

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[Margot James]

I do not accept that this Bill represents a reduction in the powers of the Information Commissioner, and I do not think that that is her view either. Obviously, I accept what she said in response to questioning from Select Committee on Digital, Culture, Media and Sport. As I have already said, my right hon. Friend the Secretary of State is considering her request, and we are working on the areas where she feels there is a shortfall.

I reassure the Committee that the Bill strengthens ICO’s overall powers. The hon. Member for Sheffield, Heeley has mentioned fines. There are fines of up to 4% of global turnover, or £17 million, both for malpractice itself and for blocking investigations and inquiries mounted by the ICO.

[Liam Byrne]

One way in which the Government could row in behind a frustrated Information Commission would be to deny Government contracts to companies that are behaving badly. I understand that Cambridge Analytica has Government contracts with both the Foreign Office and the Ministry of Defence. Are they under review?

[Margot James]

I cannot speak for either of those Departments. We are debating the powers of the ICO rather than contractual matters between private companies and Government Departments. I accept that that is a moot point, but it is not the purpose of this Bill Committee to go into those details.

To return to the points raised by the hon. Member for Sheffield, Heeley, we are strengthening the powers of the Commissioner. We are extending her current power to serve assessment notices on data controllers in public sector bodies to all data controllers across the private sector as well. Those assessment notices will require them to provide evidence of their compliance with the law, and there is now the power to enforce assessment notices by obtaining a warrant to exercise search and seizure powers on behalf of the ICO. The Bill also creates a criminal offence for obstructing a warrant, which is subject to both fines and a criminal record. We are strengthening in those areas and also increasing fines substantially.

[Liam Byrne]

I understand that the Minister cannot answer the detailed question about Government contracts with, for example, Cambridge Analytica, but does she think, philosophically, that a Government would and should reconsider contracts with companies that are not complying with a reasonable request made by the Information Commissioner?

[Margot James]

The right hon. Gentleman makes an entirely reasonable point. As I said earlier, I cannot go into it in a debate on this particular Bill, other than to say that he makes a reasonable point.

Clause 143 provides the commissioner with the power to issue an information notice. This is a type of notice that requires a controller or processor to provide the commissioner with specified information within a certain time period.

Question put and agreed to.

Clause 143, as amended, accordingly ordered to stand part of the Bill.

Clause 144 ordered to stand part of the Bill.

Clause 145

False statements made in response to an information notice

Question proposed, That the clause stand part of the Bill.

[Liam Byrne]

The operation of clause 145 is a matter of great public concern this week, because of the revelations that an app that sat on Facebook collected data for a particular purpose, but they were then re-used by Cambridge Analytica for an entirely different purpose, to bend the outcome of particular elections and, quite possibly, referendums too. Facebook had made a statement that the matter had been resolved a couple of years ago and that the relevant data in question had been deleted. The story has developed over the past 24 hours and former Facebook employees are now alleging that it was not simply 50 million records that were collected for one purpose and re-used for another; there may have been hundreds of millions of records collected for one purpose and used for another.

How will clause 145 bite on a company such as Facebook that may be responding to an information notice issued by the Information Commissioner? The company may have told the Information Commissioner that it was all fine, the data was all deleted and everyone was perfectly satisfied, but a couple of years later it transpires that that is not the case. What would then happen to a company such as Facebook? Is the Minister satisfied that the proposed sanctions and penalties are strong enough? It is not clear to me, given what we now know, that these sanctions are strong enough at all.

[Margot James]

We are debating a suite of powers as part of the overall powers with which the Bill reinforces the Information Commissioner’s Office. It is not just about clause 145. If a company discloses information unlawfully, there is also a separate offence in clause 170. We are not relying on one clause alone.

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[Margot James]

The clause gives the commissioner the power to issue an enforcement notice, which requires a person to take steps or refrain from taking steps specified in the notice. For example, the commissioner can use an enforcement notice to compel a data controller to give effect to a data subject if they have otherwise failed to do so. Section 40 of the Data Protection Act 1998 made similar provision. In respect of the hon. Lady’s questions concerning the law enforcement aspects of the clause and the need for impact assessments, and the powers that the ICO might need to ensure that those impact assessments are done and are appropriate, I will have to write to her on the details of those latter points.

Question put and agreed to.

Clause 148 accordingly ordered to stand part of the Bill.

Clause 149

Enforcement notices: supplementary

Amendment made: 56, in clause 149, page 83, line 36, leave out “with the day on which” and insert “when”.—(Margot James.)

This amendment is consequential on Amendment 71.

Clause 149, as amended, ordered to stand part of the Bill.

Clause 150

Enforcement notices: rectification and erasure of personal data etc

Question proposed, That the clause stand part of the Bill.

[Liam Byrne]

The clause bites on the question of individuals’ rights to the erasure of personal data and rectification. I want to give the Minister an opportunity to update the Committee on her conversations with media, culture and other organisations about how she is going to balance the implementation of clause 150 with the ambitions of those organisations to protect archives—not just archives of very large sets of artefacts, such as the Natural History Museum, but those that are run by News UK or Trinity Mirror or the BBC.

The risk that is obviously posed by those organisations is that they often rely on very good, detailed and often quite old archives of news information. The scenario that was put to us last night by lawyers representing a number of those organisations that wanted to give us their views about clauses 168 and 169 was that successful journalism—whether The Daily Telegraph or the Swindon Advertiser—will often rely on excellent archives.

If rich individuals are seeking to create a different truth and a different history, and to exercise their rights under the clause, a risk will be created for those media organisations. I am more worried about the media organisations’ rights than I am about the Natural History Museum and the BBC, because I think the Minister’s Department will do a good job of working out where to put that grey line round what should be protected and what is up for grabs. The example put to us last night was of rich individuals seeking to create a different kind of history—a different kind of past—to bend deliberately the future of reporting by eradicating a record that might be true. The risk that was put to us is that, very often, newspaper legal directors—the poor things often have to advise on this decision—will sometimes conclude that the game is just not worth it and therefore give in to the rich individual to avoid damaging and expensive legal action and delete the records from their archives.

This is a difficult area, where balances have to be struck, but it is a form of litigation that will doubtless continue into the future. We might have just decided to deny access to ordinary people to correct media malpractice, but rich individuals will continue to bring their cases. Will the Minister tell us how the balance will play out in practice? How do we protect the rights of news organisations to run good archives for the benefit of public interest journalism in the future?

[Margot James]

The clause makes additional provision for enforcement notices where the subject matter of the notice relates to the controller or processor’s failure to comply with the data protection principle of ensuring accuracy. The clause may also apply where a controller or processor has failed to comply with the data subject’s rights on rectification, erasure or restriction of processing under articles 16 to 18 of the general data protection regulation.

We touched on the issue of archives in one of the Committee sittings last week. I explained to the Committee that there is protection for archives under the GDPR, whether they be those of news organisations or of academic sources. We are aware of the concerns expressed by organisations representing archives, and I agree with the right hon. Gentleman that quality journalism often depends on the use of such archives. However, I assure him that my Department will defend the rights of journalists and the press as tenaciously as we would defend the rights of archivists in the great museums of our country against the distortions that he gave as examples of people perhaps wanting to use the right to be forgotten in an excessive manner and in a bid to rewrite history. We are aware of such individuals, and we are comfortable that the GDPR prevents those abuses.

Question put and agreed to.

Clause 150 accordingly ordered to stand part of the Bill.

Clauses 151 and 152 ordered to stand part of the Bill.

Clause 153

Powers of entry and inspection

Question proposed, That the clause stand part of the Bill.

[Liam Byrne]

Again, on this point, we would benefit from some clarification from the Minister. The story that broke this morning was that the Information Commissioner had, in effect, to go to court to get her warrant to investigate what Cambridge Analytica was up to. There was some speculation as to why Facebook was able to exercise some contractual rights and turn up at the offices of Cambridge Analytica to conduct an inspection. The reports are that, as the situation played out, the Information Commissioner had to tell Facebook legal officers to stand down and to stop what they were doing. As it happened, Facebook wisely decided to follow the Information Commissioner’s orders.

A matter of great concern is that the Information Commissioner has to go through what sounds like a laborious process to get the warrant needed to conduct an investigation that is obviously in the public interest. When we secure, for example, emergency injunctions to stop the publication of material that people do not want published, or when magistrates issue search warrants, most of us with experience of this at a local level would observe that such warrants are often issued in a much faster and less high-profile way than the process the Information Commissioner appears to have to go through.

In effect, Cambridge Analytica has had 48 hours’ notice of the Information Commissioner’s concerns—[Interruption.] I am sorry, but I do not know whether the Minister wants to intervene on that—

[The Chair]

Order. There is confusion on the Front Bench. Please continue, Mr Byrne.

[Liam Byrne]

I am sorry, Mr Hanson. I was not sure whether the Home Office Minister wanted to clarify that point. We know that warrants have to be sought and judicial oversight is important, but the process appears slightly cumbersome. I wonder whether the Minister can tell us whether she is satisfied that the process and the powers that we will equip the Information Commissioner with are as smooth and slick as the new enforcement environment requires.

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[Margot James]

I have just been advised that the existing law is non-custodial criminal sanctions. I have referred to the criminal sanctions with respect to assessment notices, and I will get back to the hon. Lady on the question of the sanctions on the information notices that she has asked about. I am told what I am told; the existing law is non-custodial.

Question put and agreed to.

Clause 154, as amended, accordingly ordered to stand part of the Bill.

Schedule 16

PENALTIES

Amendments made: 123, page 203, line 26, leave out “with the day after” and insert “when”.

This amendment is consequential on Amendment 71.

124, page 204, line 10, leave out “with the day on which” and insert “when”.

This amendment is consequential on Amendment 71.

125, page 205, line 5, leave out “with the day after the day on which” and insert “when”.

This amendment is consequential on Amendment 71.

126, page 205, line 37, leave out “controller or processor” and insert “person to whom the penalty notice was given”.—(Margot James.)

This amendment is consequential on Amendment 52.

Schedule 16, as amended, agreed to.

Clause 155 ordered to stand part of the Bill.

Clause 156

Maximum amount of penalty

Question proposed, That the clause stand part of the Bill.

[Liam Byrne]

I think we could all do with a bit of clarity, which did not quite emerge in the last debate. My hon. Friend the Member for Sheffield, Heeley, makes an important point: in light of this week’s news, there is real concern that the maximum possible sentences should be on the books to punish people who try to get in the way of investigations by the Information Commissioner. Can the Minister say whether the Information Commissioner is currently able to prosecute people for getting in her way, and whether they could go to jail? That would be clarification No. 1. Clarification No. 2 would be whether, under the Bill the Minister is asking us to agree, that custodial sentence would still remain.

[Margot James]

I understand that under the current law there are no custodial sentencing provisions, so therefore I cannot argue that they will remain. That does not seem logical at all. The existing DPA offences are for fines only, according to section 60 of the Data Protection Act 1998.

Question put and agreed to.

Clause 156 accordingly ordered to stand part of the Bill.

Clause 157

Fixed penalties for non-compliance with charges regulations

Question proposed, That the clause stand part of the Bill.

[Liam Byrne]

Given the clarity that the Minister has now furnished for the Committee, and given the scale of wrongdoing that is alleged about Cambridge Analytica and potentially Facebook this week, the question on clause 157 is whether she is satisfied that financial penalties are going to do the job in the years to come. Otherwise, is this a clause on which we need to reflect on Report if not now so that if custodial sentences are not currently available, we might consider introducing them for people who appear determined to move heaven and earth to get in the way and obstruct an Information Commissioner inquiry? Could we perhaps come back to that on Report, rather than simply rely on sanctions such as fixed penalty notices?

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Unlawful obtaining etc of personal data

[Liam Byrne]

I beg to move amendment 157, in clause 170, page 96, line 25, at end insert—

“or

(d) was done in the process of making a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)).”.

This amendment seeks to ensure that the offences listed in the offences of the Bill do not infringe on a worker’s ability to raise public interest concerns about wrongdoing, risk or malpractice.

[The Chair]

With this it will be convenient to discuss amendment 158, in clause 171, page 97, line 28, at end insert—

“or

(d) was done in the process of making a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)).”.

This amendment seeks to ensure that the offences listed in the offences of the Bill do not infringe on a worker’s ability to raise public interest concerns about wrongdoing, risk or malpractice.

[Liam Byrne]

I am grateful to my hon. Friend the Member for Edinburgh South for keeping me warm and enthused.

The amendment is important. None of us wants to damage the right and power of whistleblowers to bring important information into the public domain, sometimes to the attention of regulators, sometimes to the attention of organisations, such as the Health and Safety Executive, and sometimes to the attention of Members. Over the years, we have put in place a good regime in order to ensure that whistleblowers are afforded protections that allow them to come forward with information that is in the public interest.

The reason we have to consider that now is that data protection legislation is being strengthened by the incorporation of GDPR into British law. However, the risk is that the ambiguities that frame the protection of whistleblowers in the Bill are such that many are concerned that whistleblowers will not be given the right protection against data protection legislation.

The Government recognise that it is important to protect whistleblowers. There is a protection in clause 170 for whistleblowers bringing forward information that is

“justified as being in the public interest.”

The argument put to us by Public Concern at Work and others is that that approach is unlikely to be effective. We are told that there will be a new test in law, which will therefore require guidance from the courts. Until that time, the precise meaning will obviously be a bit moot, and the scope of the situations that the Government seek to protect will remain a little uncertain. That uncertainty and ambiguity will jeopardise an individual who might have something important to bring to the attention of the outside world.

Exceptions to violations in personal data confidentiality were recently considered by the Government in section 58 of the Digital Economy Act 2017, which provided a far more comprehensive list of exceptions. Where there is overlap between the Bill and the Digital Economy Act, it appears that the Act deals much more satisfactorily with whistleblowers.

I remind the Committee that section 58 of the Act says that the offence does not apply to a disclosure

“which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996”.

We therefore have a pretty well established and grounded definition of exceptions. Indeed, it was so well defined and grounded that the Government decided to use that definition in the 2017 Act. It is not clear why the Bill seeks to create alternative definitions and therefore the need for alternative tests and guidance in the courts when we have a definition we can rely on.

The Opposition amendment would return us to what we think was sensible drafting in the Digital Economy Act. That Act is not ancient history—it was only 12 months ago. Otherwise, the risk is that the Government, employers, courts and trade unions will get into an awful muddle as they try to understand which legislation protects whistleblowers in new circumstances. None of us wants to create a situation of uncertainty and ambiguity that stops whistleblowers from coming forward with important information.

I therefore hope we can have a useful debate about why the Government have chosen to introduce new definitions when it is not clear that they are improvements on well-established employment law that dates back to the Employment Rights Act 1996. Let us hear what the Minister has to say, but I hope the Government reflect on the arguments we rehearse this afternoon and introduce further enhancements and perfections on Report.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

The right hon. Gentleman is correct: it is essential that we do not create an offence in the clause that will snare whistleblowers. I am sure the Committee shares that goal. Indeed, if we created such an offence, whistleblowers would no longer be whistleblowers—a qualifying disclosure would no longer be a qualifying disclosure if it were an offence under different legislation, including the Bill.

We will listen carefully to what the Minister says, but, to come at it from a slightly different angle, as I understand it, the Employment Rights Act currently requires a “reasonable belief” by the worker making the whistleblowing disclosure that it is in the public interest to disclose that information. That seems a slightly easier test than the one contained in a defence in subsection (2) of the clause, which requires not a “reasonable belief”—those words do not appear—but proof that disclosure was justified in the public interest. There is also a contrast with subsection (3), where a reasonable belief test is applied to a defence but only in circumstances of publication of either journalistic, artistic or literary material.

It is not clear to me why there is a reasonable belief test in subsection (3) but not in subsection (2). I am interested to hear what the Minister has to say about that distinction.

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[Margot James]

I referred to the public interest defence as a flexible defence that would encapsulate non-criminal activities. I do not know whether that satisfies the hon. Gentleman, but a flexible public interest defence is indeed required.

For those reasons, I reassure hon. Members that a further defence providing for whistleblowing is unnecessary. It is telling that there is no such defence in section 55 of the 1998 Act, and we are not aware of any problems with its operation. Hon. Members mentioned section 58 of the Digital Economy Act 2017. That is a difficult comparison. Unlike clauses 170 and 171, section 58 does not contain a straightforward public interest defence, so, unlike the offences in the Bill, there may be no alternative protection for such disclosures. I hope I have given hon. Members sufficient reassurance that they feel confident withdrawing their amendments.

[Liam Byrne]

I am grateful to the Minister for that reply. She says that she wants to try to update the legislation. I understand what she is trying to do and why she does not accept that there is a complete parallel with the Digital Economy Act. None the less, the new definition will need to be tested in court, new guidance will need to be issued and new ambiguity will therefore be created, which brings with it the risk that important whistleblowers will be dissuaded from bringing forward information that is in our interest and letting it see the light of day.

I hope the Minister reflects on that further. She seeks to create an extension in law to ensure that there is a public interest definition in the round—I can see the enlargement that she is trying to make—but I hope she reflects before Report stage on the challenge that new definitions will have to be tested in court, which will create ambiguity and risk. I do not think she wants to create that risk, but the strategy she sets out does not completely delete it and it remains a concern. I will happily withdraw the amendment, but I ask the Minister to reflect on that point before Report.

[Margot James]

I am happy to reflect on what the right hon. Gentleman proposes. The last thing we want is to have any chilling effect on would-be whistleblowers.

[Liam Byrne]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 170 ordered to stand part of the Bill.

Clause 171

Re-identification of de-identified personal data

Question proposed, That the clause stand part of the Bill.

[Darren Jones]

It is a pleasure to serve under your chairmanship this afternoon, Mr Streeter. I want to pursue the debate on the re-identification of de-identified personal data because, as the Minister pointed out, under the general data protection regulation, the idea of pseudonymised data comes into the law for the first time. For example, if my name, as my personal data, is turned into #365, it has been pseudonymised, and the question is whether #365 can be unlocked to identify the name “Darren Jones”. Pseudonymising is distinct from anonymising, which cannot be unlocked.

The question has come up a lot in the Select Committee on Science and Technology, in various contexts. I had a conversation with the Minister and her officials in the Select Committee about one scenario—the use of genetic data in the health service, where lots of data from individuals is pooled together for the purpose of learning about trends. It may be re-applied to the individual in the delivery of care. Another example might involve Facebook clients being able to upload customer lists on to the Facebook advertising profile. Each name would be hashed—pseudonymised—but ultimately targeted advertising could be pushed through to the individual’s profile.

Both those scenarios raise a policy question about the end of the process, when it comes back to the individual—the information has been personally identifiable, then is pseudonymised in a pooled way, and is then re-identified. Will those issues give rise to an offence under the part of the Bill that we are considering, and should consent be different, with the potential for pseudonymised data to be re-identified made clear to the end user? The reason I have not tabled any amendments to deal with the point is that I do not know the answer, but I should welcome the Minister’s views, and perhaps a commitment to have a conversation either with the Information Commissioner or the new data and artificial intelligence ethics unit about different types of consent where data is pseudonymised and then re-identified, either for health purposes or targeted advertising.

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[Darren Jones (Bristol North West) (Lab)]

I beg to move amendment 151, in clause 177, page 102, line 13, at end insert—

“(4) Notwithstanding any provision in section 6 of the European Union (Withdrawal) Act 2018, a court or tribunal shall have regard to decisions made by the European Court after exit day so far as they relate to any provision under this Act.”.

For fear of sounding like a broken record, my arguments in favour of the amendment are broadly similar to those for amendment 152—in seeking to assist the Government in our shared aim of getting a decision of adequacy with the European Commission, it would be helpful to set out in the Bill our commitment to tracking and implementing European jurisprudence in the area of data protection. Members will remember that amendment 152 dealt with the European data protection board. Amendment 151 makes the same argument, but in respect of the European Court.

I appreciate that there may be some political challenges in stating the aim that the UK will mirror the European Court’s jurisdiction, but the reality is that developing European data protection law, either directly from the courts or through the European data protection board, will in essence come from the application of European law at the European Court of Justice. The amendment does not seek to cause political problems for the Government, but merely says that we ought to have regard to European case law in UK courts, in order to provide the obligation to our learned friends in the judiciary to have regard to European legal decision making and debates in applying European-derived law in the United Kingdom. This short amendment seeks merely to put that into the Bill, to assist the Government in their negotiations on adequacy with the European Commission.

[Liam Byrne]

I would like to say a word in support of this important amendment. We had a rich and unsatisfactory debate on the incorporation of article 8 of the European charter of fundamental rights into British law. We think that that would have helped the Government considerably in ensuring that there is no divergence between the European data protection regime and our own. If the Government are successful, they will operate on different constitutional bases, and there is therefore a real risk of divergence over the years to come. I think that everyone on the Committee is now pretty well versed in the damage that that would do to British exports, many of which are digitally enabled. This is a really helpful amendment. It tries to tighten to lockstep that we have to maintain with European data protection regimes, which will be good for exports, services and the British economy, and the Government should accept it.

[Margot James]

When we leave the European Union, the direct jurisdiction of the Court of Justice of the European Union in the UK will come to an end. Clause 6 of the European Union (Withdrawal) Bill gives effect to that and takes a clear and logical approach to how our domestic courts should approach the case law of the CJEU as a result. In short, where a judgment precedes our exit, it is binding on courts below the Supreme Court. Where a judgment post-dates our exit, our courts may have regard to it if they consider it appropriate, but EU law and the decisions of the ECJ will continue to affect us. The ECJ determines whether agreements that the EU has struck are legal under the EU’s own law. If, as part of our future partnership, Parliament passes an identical law to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we interpret those laws consistently, but our Parliament would ultimately remain sovereign.

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[Margot James]

I would not rule it out, but the negotiations are between two parties, so however much we may wish to maintain our membership of the European data protection board, that might not be something that the EU will grant us. As I say, it is a matter for negotiation and I am sure things will become clearer over the next 12 months. To take an approach now that would require our courts to follow future case law of the CJEU, even if only in some areas, would place limitations on the discretion and independence of our courts.

[Liam Byrne]

The Minister is trying to protect a discretion that sounds like the defence of a right to depart from EU case law to such an extent that we might jeopardise an adequacy agreement. Surely the point of this amendment is to keep us in lockstep, to de-risk that adequacy agreement for the years to come. That surely must be an object of her Government’s policy.

[Margot James]

The Government are absolutely committed to getting an adequacy agreement. The Prime Minister has said she wishes to go beyond adequacy in the negotiations. I would like to reassure the right hon. Gentleman that the very opposite is the case. Our courts can have regard to, and that is good enough. There is no reason for this to be different in the area of data protection from what it might be in any other area.

The provision has been discussed at length and agreed to by the House. Hon. Members will be aware that the other place is now scrutinising the EU (Withdrawal) Bill and has focused on this very matter. There is broad agreement that we need to consider how best to ensure that the Bill achieves the policy aim with sufficient clarity. We want to reach agreement on a proposition that commands the greatest possible support. We should, however, be wary of seeking to provide for something that alters the underlying policy in a way that binds or steers our courts towards a particular outcome, for example, by saying that they must have regard in only certain areas of law.

[Liam Byrne]

I do not quite follow the Minister’s argument. On the one hand, she says that it is the object of Government policy to secure an adequacy agreement and presumably keep that adequacy agreement, if not, indeed, go beyond it. She is now seeking to defend a flexibility that would allow some kind of departure from European norms. I cannot understand how she can quite want her cake and eat it.

[Margot James]

Courts will be allowed to follow the jurisprudence of the ECJ in this area of data protection. Nothing I am saying is prompting a departure from that position. We see the amendment as going further than we would like to go. By contrast, the Government’s proposed approach to CJEU oversight respects the referendum result and is clear, consistent and achievable.