Data Protection Bill [HL]

Lord Keen of Elie Excerpts

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

[Lord Stevenson of Balmacara]

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

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

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

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

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

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to all noble Lords for their contributions this afternoon. I would hope that recent debates, particularly in Committee on the Bill, have assured noble Lords that the Government are absolutely committed to preserving the freedom of the press and maintaining the necessary balance between privacy and freedom of expression in our existing law that has generally served us well over many years.

Perhaps I may take some of the amendments in turn. The first, Amendment 163A, was brought forward by my noble friend Lord Black. It asks that the Bill should require that greater consideration be given to the right to freedom of expression and information when the Information Commissioner is exercising her enforcement powers. Amendment 164A would require the commissioner to consider, for example, any other financial penalties imposed by another regulator as a result of failure—a point that was touched on tangentially by the noble Lord, Lord Stevenson, in his closing remarks.

I hope that my noble friend Lord Black agrees that it is important that any amendments in this space do not impact disproportionately on the commissioner’s resources and her ability to execute her regulatory functions in an effective manner. I will give further consideration as to whether these amendments meet that test. I will address my noble friend’s contribution on this point in Hansard and the Government will reflect upon it. I do not hesitate because I am making a concession; I am merely making an observation.

--- Later in debate ---

[Lord Gordon of Strathblane (Lab)]

Taking up the point made by the noble Baroness, Lady Stowell, does the Minister agree that we are introducing, for the first time, vetting of material before it is broadcast, a power that even Ofcom, the regulator set up by government for broadcasting, does not have? Ofcom regulates only after the event. Surely this is a dramatic new intervention.

[Lord Keen of Elie]

The noble Lord makes a perfectly good observation about this provision. It brings me to one of the questions posed independently and neutrally by the noble Lord, Lord Stevenson, on whether the provisions of the Bill as drafted simply implement the provisions of the 1998 Act or extend its provisions. The answer is that they do not change the regime found in the 1998 Act except in respect of Clause 164(3)(c). I acknowledge the significance of that provision and I am happy to look again at that issue in light of the expressions of concern I have heard from around the Committee about it.

Some noble Lords also questioned the need for the provision of assistance in special purposes proceedings. Under Clause 165, individuals who are a party, or a prospective party, to special purposes proceedings may apply to the commissioner for assistance in those proceedings. For the application to be accepted, the commissioner must be convinced that the matter is of substantial public importance. There is, as I have implied, an equivalent provision in the 1998 Act. I understand that it has only ever been used once. In my respectful submission, that in itself indicates the effectiveness of the provision. It is not necessary because people know it is there and can be relied on, but only if that very high test of substantial public importance is met. Therefore, we consider it appropriate to retain this as a safeguard for data subjects. It is, I respectfully suggest, an important contributor to maintaining the balance between privacy and freedom of expression that has to underlie all these provisions.

Amendment 179A, spoken to by the noble Baroness, Lady Hollins, would require 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. As I have mentioned, a consultation was launched to look at Section 40 of the Crime and Courts Act 2013, which also asked whether proceeding with part 2 of the inquiry was still appropriate, proportionate and in the public interest. As I stated previously, it is the Government’s intention to publish a response to that consultation by Christmas; therefore, we do not believe that this amendment is appropriate, given the decisions that are currently being taken on that matter.

[Baroness Hollins]

My Lords, the Minister stated that the response to the consultation will be published before Christmas. Can he further reassure the Committee that it will be published before Report so that noble Lords can reconsider their amendments?

[Lord Keen of Elie]

I am obliged to the noble Baroness. It is the Government’s intention that the consultation response should be published before Christmas. I cannot say that it will be published before Report but we will keep noble Lords advised of any decision with regard to a specific date for publication.

[Baroness Hollins]

If is not to be published before Report, would it be possible for me to meet the Minister to discuss these matters?

[Lord Keen of Elie]

I am certainly open to any meeting that the noble Baroness would wish to engage in to discuss these matters. In so far as I am able to inform her, and indeed the Committee, of developments, I will seek to do so.

[Lord McNally]

Just to be helpful to the Committee, if it was published after Report, does the Minister agree that it would be perfectly reasonable to have a Third Reading amendment to reflect whatever has come out of that response?

[Lord Keen of Elie]

With respect to the noble Lord, I am not the litmus test of reasonableness—at least, I have been told that in the past.

[Lord Low of Dalston]

Would the Minister perhaps agree that it would be highly advantageous to the Government—it would be in the Government’s interest—for the response to the consultation to be published before Report? If it is, its contents might well incline those of us who support these amendments to think again about them, whereas if we do not have the benefit of the Government’s response, we may be obliged to carry amendments that the Government would not wish to be carried.

[Lord Keen of Elie]

I quite understand the force of the noble Lord’s observations. Nevertheless, I am not in a position to say that the response will be available for publication before Report. I am afraid that we have to proceed on that basis. It may have consequences such as those set out by the noble Lord, and we will have to address those in due course. I am afraid that I cannot go further on this point.

Finally, I come to some of the observations of the noble Lord, Lord McNally, who spoke to his Amendments 185E and 185F. I begin by saying that I have no wish to disappoint either the gentleman on the Clapham omnibus or the noble Lord himself. Therefore, I will endeavour to address the questions that he raised as fully as I can. I take account of his commendable intention to peruse Hansard over breakfast and to come to a view as to whether or not I have fully responded to his points.

Amendments 185E and 185F seek to make the unlawful obtaining of personal data a criminal offence with a custodial sentence of up to two years under Clause 175. Of course we recognise the seriousness of any offence that is committed in this context. That is why it is important that proper thought is given to the introduction of any changes which would seek to put in place custodial penalties that could remove people’s liberty. Under the coalition Government, in March 2011, the noble Lord, Lord McNally, said that the Government would not commence prison sentences for Section 55 offences but would continue to keep the matter under review. At that time Ministers agreed to pursue non-custodial options, instead of a custodial option, including encouraging the use of the Proceeds of Crime Act 2002 and making the offences recordable. Indeed, it is this Government’s intention in this Bill that the offences should now be made recordable. That is addressed in Clause 178.

Again, this is one of those complex areas where we have to achieve a balance between competing rights and obligations. We believe that, for the reasons I sought to set out earlier, we are achieving the right balance with the provisions in the Bill. I hope that the noble Lord will feel open to not moving his amendment.

[Lord McNally]

My Lords, I will consider that point in a few moments, but I am much reassured that the noble and learned Lord has more respect for the man on the Clapham omnibus than he seems to have for BBC lawyers. That is a step forward.

[Lord Keen of Elie]

No inference can be drawn regarding the considerable respect in which I hold the legal advisers of the BBC.

[Viscount Colville of Culross]

If I may put the record straight, it was not a BBC lawyer who advised me.

[Lord Keen of Elie]

My respect for all lawyers remains undiminished.

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

[Earl Attlee]

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

[Lord Keen of Elie]

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

[Lord Black of Brentwood]

My Lords, I thank all those who have taken part in this thoughtful and important debate—despite the fact that it is the first time I have been likened to someone who has murdered his parents, thwarted the will of Parliament and, according to the noble Lord, Lord Puttnam, is the personification of all the sins of the media. I regret that, given the seriousness of the issues for the academic, literary and artistic worlds, we have yet again had a debate which has largely been dominated by press regulation. We have been round this course so many times that even Sir Mo Farah would have been exhausted by now.

I am inclined to agree with the noble Lord, Lord Stevenson, that this is not really the place to debate press regulation. We should wait to see what the consultation says. Like other noble Lords, I am grateful for confirmation from the noble and learned Lord that we will have a response by Christmas.

There were two very important speeches. The noble Baroness, Lady Stowell, talked about the profound change—I shall get my bit of Latin in again—from post hoc to ex ante. We cannot underestimate the scale of the impact of that across the media, and it is right that the noble and learned Lord should look at that. The noble Viscount, Lord Colville, also made some very powerful comments about the serious implications for investigative broadcast journalism. His point about how the Armstrong Sunday Times case would have been impacted by the Bill was a vivid example of the mischief that currently sits in it.

I am very grateful to the noble and learned Lord for saying that he will look at the issues raised, particularly by Amendments 163, 164A and 170B, and also at Clause 164(3)(c). It has caused concern around the Committee, and he confirmed that it is a change since the 1998 Act that will have profound implications. On that note, I beg leave to withdraw the amendment.