Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019

Debate between Lord Adonis and Lord Griffiths of Burry Port

Monday 18th February 2019 Lords Chamber

[Lord Adonis]

The noble Baroness raises a very important question, to which the Minister should respond: how long will it take to consider this? Noble Lords who woke up to the “Today” programme this morning will have been astonished to find that Dr Liam Fox and the Foreign Secretary had written to the Japanese Prime Minister telling him to get a move on in signing a trade deal with Britain—as if we, because we are putting ourselves in a position of great jeopardy and undermining existing international agreements in five weeks, can now start instructing foreign Governments on the timescales in which they should conduct international negotiations. This is utterly humiliating to us as a country. It is a fundamental breach of the proper conduct of public affairs. What the noble Baroness said about it taking another two years even to get the basis of data adequacy agreements with the EU, because of our act of withdrawing from the European Union, simply underlines the point.

[Lord Griffiths of Burry Port (Lab)]

My Lords, in the middle of all that I shall provide a still, small voice of calm for a moment—perhaps—in keen anticipation of the response of the Minister, who will have to orchestrate the energies that have been released and deal with the blood pressure of my noble friend Lord Adonis.

I have looked at this statutory instrument. I can see 65 pages of intricate cross-stitching, as an untold number of lawyers for untold numbers of hours have pored over pieces of legislation, harmonised what can be harmonised, tweaked what can be tweaked and produced at the end an unreadable pastiche, leaving us reliant on the Explanatory Memorandum. As I sat at my kitchen table on the sunniest weekend we have had this year so far, with pieces of legislation spread out all around me, there was no other method available to me.

I read of changes to the GDPR and the law enforcement directive,

“over which our Information Commissioner’s Office and UK civil servants have had considerable influence”.—[Official Report, Commons, Sixteenth Delegated Legislation Committee, 14/2/19; col. 1.]

That we, once among the architects of how we handle our data as a continent, should now be in the position we are in is a great sadness. I would say the same thing for the European Court of Justice, which we had a formative contribution in shaping. That we are arguing these points in this way is a dreadful place to be.

I echo what has been said to my left and to my right about reciprocity, adequacy and all that. At the moment of leaving, we will, I suppose, accept the remaining members of the European Union as having passed the adequacy test. Indeed, through the Privacy Shield scheme in the United States, we will offer that sense of adequacy even beyond Europe. But, as has been said, the negotiations to have some reciprocity and adequacy expressed for our own case will take an indeterminate time—two years has been mentioned, and the Minister will respond to that in due course. It seems such a strangely asymmetrical presentation of these important facts. I want to ask, as others have done: is it true that the assessment of adequacy for the United Kingdom might take as long as that?

In his opening remarks, the Minister mentioned that, at such-and-such an item in the political agreement, there is reference to the urgency with which certain of these things must happen. Perhaps he will excuse my ignorance on this point, but, if there is no deal, is there no deal in respect of the deal and of the political agreement? If so, the item he referred to falls, as indeed does the deal.

The noble Lord, Lord Balfe, made a speech last week on what happens once you have reached a fixed point, which has again been hinted at in this debate. At the moment, all we are talking about is something that will come to pass on a particular date, just five weeks away, at which point things should square up with each other. But what happens in the two years it will take for adequacy for us to be granted by the negotiating process that will then begin? What happens if decisions about how to act in the area of the management of data begin to diverge? It is not a fixed position. What mechanisms do we have to handle a shifting scene?

My noble friend Lord Adonis mentioned Japan. It did not come into the picture because, at the time this statutory instrument was written, something was happening that had not yet been brought to a conclusion. But we now know what the conclusion is, and we see that Japan will be a much more difficult case to crack than we had thought. Once again, we are in a bad place.

Without a deal—or even, it seems, with one—the ICO will no longer sit on the European Data Protection Board. The noble Lord, Lord McNally, referred to the loneliness of the Norwegian, and it is worth emphasising that all over again. It will be a dreadful thing for us to send our top person to such discussions and have her sit out and have no real practical influence—this is the United Kingdom we are talking about—nor will she be able to participate in the GDPR’s one-stop shop mechanism. This is another terrible place to put her. How should we feel about this? I think it is important.

Incidentally, I see why there is no impact assessment or public consultation: all the people who might have been available to harness such an impact assessment or consultation have been disentangling laws and working as drones to put this SI together. I cannot feel that we are doing anything that any of us would be other than ashamed about with the passage of time.

On the age at which consent is deemed to have been given, are the Government, in opting for 13—there was a spread of ages between 13 and 16 when we considered the Data Protection Bill last year—achieving by secondary legislation what we were reluctant to do just a year ago with the primary legislation? What is our duty of care in such circumstances?

Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Adonis and Lord Griffiths of Burry Port

Wednesday 23rd January 2019 Grand Committee

[Lord Adonis]

I fully accept what the Minister said. He has been very forthcoming in making further information available to noble Lords. It would be very useful to us to have that further information before these regulations go to the House. We need that further information so that we can form a judgment on whether the Government’s decision as to how they will frame the regulatory regime after 29 March, if we crash out of the EU, is correct or whether it would have been appropriate to have in domestic arrangements some function equivalent to that performed by the European Commission; for example, by requiring the CMA to approve certain of Ofcom’s proposed regulatory measures. I hope that the Minister will be able to make that information available to the House so that we can form a judgment when this regulation comes to the House.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I suspect that all present will be delighted to hear that I do not intend to detain your Lordships for very long. This has been a clash of the Titans, and a lot of material has come out from the noble Lords, Lord Foster and Lord Adonis, and the Minister’s responses. Having read diligently the papers that I had and highlighted the questions which concerned me, I find, alarmingly, that they have all been dealt with. For that reason, and hearing the question about repetition, I shall not go over the ground again.

However, I would make one or two observations, perhaps from a different angle. For example, I note at the beginning of the Explanatory Memorandum the number of Acts of Parliament and other measures that have had to be gone through with a tooth comb to produce 10 pages of minutiae—which in their totality are more than minutiae—affecting legislation in the way that the noble Lord, Lord Adonis, says. I would like to know as a point of information how many hours have been spent on teasing out these details in order to produce this one statutory instrument. On page 2, it deals with minor affairs and states that it must not be confused with other statutory instruments which will soon come through. It beggars belief that all this lies ahead. I read The Pilgrim’s Progress when I was a young man. The slough of despond and the swamp of despair are lurking and waiting for us before we will get to the celestial city.

[Lord Adonis]

Dante is more appropriate because he talks about the circles of hell.

[Lord Griffiths of Burry Port]

We will have to have a consultation about that in order to find out who forms which view about Dante’s Inferno.

There are two focal points to my remarks. I wanted to ask about the data adequacy agreement but the Minister has answered that. I also wanted to ask: who regulates the regulator? I was very interested indeed to read about Ofcom. While I in no way have the level of expertise of other noble Lords who have spoken, just reading the text—I know how to do that—what hit me between the eyes begged questions: is this regulation or supervision? Are we talking about harmonisation? I have sat in on several debates to try to gauge what is happening in consideration of these statutory instruments and I am beginning to form the view that between where we are now and where we expect to be if all goes according to plan, in several instances there will be a lessening of the oversight and direction that we have currently through our membership of the European Union.

For example, I listened to the debate on nuclear safeguarding yesterday. I was not convinced by either the debate or the material I read that the concerns being expressed would be adequately met. It was a similar case as regards non-native invasive species. Again, I was left with questions which may be answerable: I am not an expert in these fields. However, simply because we are under pressure to agree to these statutory instruments, we must not go on driving them through in such a way that in the end the accumulation of feeling about what we are achieving is that we are making too much haste and should have a bit less speed. I know that there are just 70-something days and the pressures that we are under, but in the end we will have to live with what we decide now.

All of those Acts of Parliament were carefully gone through. I have just one brief observation to make about Ofcom because the others have been made. Most of my consideration was on paragraph 10, but I will not cover that at all. However, in paragraph 7, I find that again and again what Ofcom is required to do while we are a member of the European Union “may” turn into something later. The indicative mood turns into—what? Is it the optative or is it the subjunctive? The word “may” allows itself to be interpreted either way. The optative reflects the mood of wishful thinking while the subjunctive reflects the mood of doubtful assertion. I am truly interested in knowing whether Ofcom’s different field of endeavour and focal points amount to it having the same quality and weight of oversight that it currently enjoys and whether the subjective element which is being introduced by the verbs I have described allow for a different way for it to operate or a different mood to be generated. I do not know, because the words do not allow me to make a deduction and I have certainly not heard this mentioned or dealt with in our discussion thus far.

I said that I would not detain noble Lords for long and I shall not. I am normally an optimistic person and I end my short interventions by saying that I look forward to the next one. However, I sit down on this occasion in a more desultory manner, not sure that I do.

Arts: Impact of Brexit

Debate between Lord Adonis and Lord Griffiths of Burry Port

Thursday 11th October 2018 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, what a debate this has been and what an invidious position the Minister finds himself in, as every speech from every corner of the House has struck the same note.

[Lord Adonis]

He is used to it.

[Lord Griffiths of Burry Port]

I ignore noises off and promise that someone will be exiting chased by a bear shortly if he continues.

First, I express my gratitude, along with others, for the fact that my noble friend Lord Bragg has introduced this debate. Her Majesty the Queen has considered him worthy to be a Companion of Honour, but he is a companion of honour to all of us sitting here and, for those of us on this side of the House, a comrade in arms for the people’s education. We honour him for all that he has done, first, in promoting the arts and, secondly, in cultivating, over decades, a public who are more aware of the riches of the arts. His work is truly incalculable and no one deserves to introduce a debate or to be listened to more than him. So we start on a very good foot, although of course I commiserate with the Minister.

It was many months ago when Karen Bradley—three Secretaries of State ago—spoke of the fact that the Government were,

“looking carefully at the areas in which it is important that we continue membership”.—[Official Report, Commons, 14/9/17; col. 956.]

She was referring to the status of the arts post Brexit. However, the Select Committee on Digital, Culture, Media and Sport reported that,

“Ms Bradley did not commit to continued membership of any particular programme or a timeframe for a decision”.

Have we not heard that again and again in one sector after another as we have looked at the thorny question of Brexit?

The committee also reported that in later correspondence the Secretary of State stated clearly that continued participation in Creative Europe would be subject to negotiation with the EU. The committee recommended that the Government,

“should commit to making it an objective of negotiations to secure the UK’s ongoing participation in Creative Europe”.

That was ever such a long time ago, and intricate and byzantine negotiations have taken place since. I would love to hear the Minister tell us that consideration of the status of the arts has been a significant feature of those negotiations, but perhaps if he is even now not at liberty to disclose the outcome of those deliberations, he might, with a nod or a wink or with smoke and mirrors, give us something to hang on to. We have heard the facts adduced eloquently by one speaker after another: that in this area the notice, obstacles and timetables that we are up against make it virtually impossible for us to think of an ongoing activity for most of the arts that we are all concerned with beyond the limits currently set. The Minister will no doubt tell us that we have lengthened the time within which contractual arrangements made this side of 29 March will be honoured on the other side of 29 March to one year.

But those are not the limits that are reasonable in the cases we are considering. It was the noble Lord, Lord Wallace of Saltaire, who uttered the word that I certainly wanted to emphasise myself—“uncertainty, uncertainty, uncertainty”. There is nothing worse than uncertainty. Against that, I would draw attention to a briefing that many of us will have received from the Arts Council. In contrast with the Government, from the time the referendum took place, with a result that the arts world scarcely wanted to hear, it has begun to prepare responsibly for the new era that is now opening up.

There have been surveys: one almost immediately after the referendum; another in February 2017; another in February 2018. The findings of those surveys have been mentioned in various contributions to this debate. But this is an evidence-based, factual building of a case, done responsibly by those responsible for our arts sector. The Government, meanwhile, have dithered, fighting pillow fights in the dark with each other in dark rooms. It is simply not good enough. The well-peopled Benches opposite testify to the fact that they have all gone to the country, and are not here to discuss this vitally important subject. It is not my habit to repeat points already made—sitting where I do in some of these debates, all my best points have already been made—but I am going to repeat the four findings of the first survey on how Brexit will impact on the arts, because they all bear repetition and holding together in the sequence in which they appear in this report. Here they come: reductions to EU funding received by the sector; changes to ease of movement affecting international touring and booking international artists to perform in the UK; an increase in costs of and barriers to moving objects and instruments, and in international tours or museum lending due to changes in customs agreements; uncertainty around legal frameworks important to the creative sector, such as copyright, artist’s resale right, employment and taxation legislation.

I would add a fifth, because it has cropped up generally in the conversation—the plight of young and new entrants into the sphere of the arts, trying their equivalent of the Edinburgh Festival Fringe out on cosmopolitan markets and audiences. The thrill of testing an idea, of forging a team, of crossing a barrier and of meeting other cultural norms cannot be overestimated. There are all of those things, and then the other, most quoted document of them all—the letter by Sir Bob Geldof and his many companions. We have more than once heard about the “self-built cultural jail”. But Sir Bob Geldof’s letter makes several other points. For example,

“60% of all royalty revenue paid to the UK comes from within the EU”.

There are all kinds of consequences that are way beyond the mere immediate impact, and they affect the very well-being of the sector in general.

We must emphasise, of course, that it is not only Sir Simon Rattle, Howard Goodall and the higher, elitist end of the entertainment and artistic world that combined to write that letter. It was Sir Bob Geldof himself who represented quite a different part of the spectrum. As did Ed Sheeran—I can see noble Lords’ faces lighting up at the mere mention of his name. But also, what about Bok Bok? I mean, we are talking about the record label Night Slugs. The style of music that Bok Bok is interested in suggests to me the kind of negotiations that have been going on in Brussels—muscular grime with thick bass synthesis, rather than Bok Bok’s original synth bass. There is all kinds of derring-do under the cloud of darkness.

I wish that the Prime Minister had got on to the platform at the Conservative Party conference with one of Bok Bok’s tracks, “Your Charizmatic Self”, from a 2014 album; and she might have replied with a track from another album called “Get Me What You Want”. In all these ways we have the popular music end as well as the classical music end. We have music and art, and we have heard about dance. The case is undeniable, and I am truly astonished that we have to argue it again and again.

I will end with one little illustration from another moment in British history when there was a conflict with Europe. It was at the time when Queen Anne died and the Stuarts gave way to the Hanoverians. People on the Tory side then were of course Stuarts on the whole, and the Hanoverians came with new Whig Administrations, and for a while nobody quite knew where they were. Interestingly, the Stuarts went as refugees into EU France, and the Hanoverians came out of Germany to take our crown. What a European picture is this! I believe that Alexander Pope, whose writings I am particularly fond of and immersed in just at the moment, coined a blessing, with which I will leave your Lordships—and in view of my professional duties this comes with authority and standing. Listen to this blessing, which has been touched up just a little: “God bless Remain, our Nation’s best Defender, God bless—no harm in blessing—the Brexiteer Offender. Who’ll win the day, prosperity to bring? God bless us all!—that’s quite another thing.”

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Griffiths of Burry Port

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Adonis]

My Lords, I am not sure that it is permissible for an English Peer to intervene in this debate. We have been going for two hours six minutes on Scotland. Earlier, I think we went on for two hours and 57 minutes on Northern Ireland, which reinforces one of the strongest impressions that these debates on the EU withdrawal Bill have left on me, apart from the tragedy of the withdrawal from the European Union itself: the lopsidedness of our constitution.

The United Kingdom is a state of 63 million people, of whom 53 million are in England. The noble Lord, Lord Thomas of Gresford, said earlier that if Scotland were an independent state, it would be larger than 10 EU states. But if England were an independent state, it would be larger than 24 EU states. It would be fourth in the EU and the separation from Scotland, Wales and Northern Ireland would make a difference of only one place in its ranking: it would be behind, rather than in front of Italy.

I only make these points because it is very clear to me that the future constitution of the United Kingdom is going to become increasingly debated and contested, particularly if we leave the European Union and one of its major existing planks is wrenched away. It is also clear to me that one of the reasons why we may be leaving the European Union—there is still a lot of water to pass under this bridge over the next 11 months—is that in England, politicians, particularly in the Conservative Party, which is the dominant political party of England now and historically, have huge difficulty with the notion of sharing power and of different tiers of government to which power is distributed.

By a very painful process, which has been graphically exhibited by all the procedures that have had to be gone through in this Bill—legislative consent Motions and all that—over the last two generations we have managed to reach an accommodation with Scotland and Wales which has enabled devolved government to be introduced. It was extremely painful. It took two lots of referendums, in the case of Scotland and Wales, to do it and we all know the difficulties that there have been in Northern Ireland. In England, we have not even begun seriously to go through that process of sharing power and establishing new tiers of government, with the partial exception of London.

London is very interesting because, like all the metropolitan authorities, it had a long-standing authority, the Greater London Council, which had previously been the London County Council for the best part of a century, but when it diverged from central government policy in the 1980s it was abolished, though it was re-established afterwards. However, that is the only real exception in terms of an authority with significant power in England. Attempts to establish regional assemblies have failed. We are still struggling in the early stages of establishing mayoral authorities but, significantly, the mayoral authorities outside London are partial and weak, and in many parts of the country it is still not even possible to devise what they are.

I simply put down as a marker—it may be that we continue this debate on the next group of amendments—that this is going to be an increasingly big and problematic issue for us. Indeed, if Brexit is accomplished in the next 11 months, because the unitary state of England, which effectively runs the UK, will be even more powerful in its own sphere than it is now because it will not even be sharing any of its sovereignty and power with Brussels, then I suspect this is going to become a still more difficult issue to address in due course. I was very struck by the noble Lord, Lord Bruce, mentioning federalism. At some point this issue will have to be grasped, but at the moment no one has the faintest idea how England would be represented and be able to exert its proper role within a federal constitution. I cannot see that happening any time soon.

I note that the noble Lord, Lord Wigley, has an amendment coming up. The noble Lord has played a complete blinder through these debates. I have to say that Wales has been spectacularly well represented—in his person, for a good deal of the time, with a bit of help from one or two other noble Lords. If England had had a voice as powerful as his in this Chamber, I think we might have got a federal UK with a Government and Parliament of England a long time ago. He is doing a spectacularly good job.

I notice—this is very telling—that the noble Lord’s Amendment 92A on the Joint Ministerial Committee makes no reference whatever to England. The JMC is about the Government of the UK and then Scotland, Wales and Northern Ireland. That sums up the huge constitutional deficit we have in the UK at the moment, which is the government and proper representation of England within the UK. I suspect that this issue will increasingly dominate our politics if we leave the EU.

[Lord Griffiths of Burry Port]

My Lords, we come to the conclusion of this debate on Clause 11. Once again, it behoves me, I feel, to express appreciation for the very hard work and the deep diving that has been done by all those who have produced the state that we now find ourselves in. In presenting my concluding remarks, I want to set out one or two reasons why the party I belong to here, the Labour Party, has been more than happy to give its assent to the intergovernmental agreement—that is, the statement that culminates from the various strands of thinking that have gone into the making of it. For someone who is new to political exercise, and who was always taught that politics is the art of the possible, this seems to represent as good an illustration of that as I could wish to find.

I should like to set out why we on these Benches support the government amendments now. There are at least five reasons, and I will be very quick about them because it is a late hour already. As the Welsh Labour Government have recognised, so we want to confirm that this package represents a solution that protects devolution, which is very important, as fully as possible as we grapple with the myriad consequences of Brexit. First, as we see with the amendments in this group, it confirms the inversion of the Clause 11 brought before us by the Government in Committee. The original proposal would have retained all returning EU powers over devolved policy areas at Westminster and allowed only Ministers of the Crown to release them to the devolved institutions when they chose to the extent, and the timescale, that they alone determined. That has been reversed. All powers over devolved policy areas, except those in areas where it is agreed that UK frameworks are needed, will be held in Cardiff and Edinburgh and, at the appropriate time, we hope and trust, in Belfast. When the EU law restriction ends, that means the devolved institutions will be able to exercise them without the current requirements to operate within those EU frameworks. In these areas, devolved competence will increase. This model is therefore wholly compatible with the reserved powers model embedded in the Scotland Act and the Wales Act 2017, whereby everything is devolved except things specifically retained at Westminster.