Data Protection Bill [HL]

Lord Keen of Elie Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I have been trying to search for words to explain what is going on at the moment. It seems to me that we are living in two parallel universes. My first thought was that we were back in World War I territory—the noble Lord, Lord Black, will get the reference—and that we were engaging in sniping over long pieces of dead ground over issues that nobody could understand, fought by people who did not want to be there and led by people even more stupid than that. But I have decided that this is the rerun of an acrimonious family dinner that we had before the break. We are now reflecting on that and trying to nerve ourselves up to talk again to each other and restore relationships, because relationships must go on.

Again, we have had these passionate stories, anecdotes and recollections of times when things have gone disastrously wrong. No amount of legal redress can undo that suffering. From others, we have heard a perfectly robust and understandable account of why things are perfectly all right at the moment and, given time, will be sorted out. I begin to think that Leveson, for all the great work he did and the excellence of his report—and the longevity of its recommendations—is a bit of a McGuffin here. This is about us and society; it is about Parliament. I tried to address some of that at the end of the last debate. We have to get serious about this and work out how to make progress. We have to restore the rightful balance between Parliament, which must be sovereign, and those who work within an environment in which Parliament seems at the moment to have been discounted.

If we do not get this sorted, we will continue to be like this for the rest of time. It is insufficient and ineffective. It will not be the way we want to live our lives and we will all be much the losers as a result. We must give credit to the noble Baroness, Lady Hollins, and her proposals. Yes, they come from Leveson—but underneath that there is the greater truth that things are not working as they could be. They should be working better.

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

My Lords, while we have already debated amendments that are challenging to a free press, I fear that this group of amendments would be potentially hostile to the concept of a free press. Where there are abuses the answer is to enforce the law, not to shut down the media. I adopt the observations of the noble Lord, Lord Pannick, and my noble friend Lady Wheatcroft in that regard.

Amendment 53 would remove the requirement to give special weighting to the public interest in freedom of expression and information. This is something that we consider an essential way of ensuring that information that is in the public interest is not buried due to the data protection regime that is put in place. In this context, giving special weight to the public interest in freedom of expression and information is an important way of ensuring that we provide constitutional protection of freedom of speech, as required pursuant to Article 10 of the European Convention and the Human Rights Act.

Amendments 54 and 56 relate to the codes of practice to guide journalists in conducting the essential public interest balancing test that has to be carried out. We have already debated this in the previous group, before the dinner break. Amendment 54 intends to take away the absolute requirement to have regard to the listed codes of practice when determining whether publication would pass the public interest test. This requirement is a way of strengthening the obligations on journalists. In line with the enhanced protection of the GDPR, we are making sure that those journalists who are covered by one of the listed codes must have regard to their relevant code.

In a related amendment, Amendment 56, the noble Baroness, Lady Hollins, has suggested that we alter the language of the condition on the special purposes exemption at paragraph 24 of Schedule 2 to the Bill by changing “relevant” to “appropriate”. This amendment makes it unclear which code should be consulted in a given case. We want to ensure that the code which pertains to a particular set of journalists is the code to which they have regard when carrying out the public interest test.

We are not being unreasonable in resisting Amendments 54 and 56. They may look innocuous, just slightly changing the language of the Bill, but if we are to be true to the GDPR, we must ensure that in our law we have resolved the article 85 requirement to set where the public interest lies in managing the balance between privacy and freedom of expression. If we make the use of these codes discretionary and their application vague, we will simply undermine that balance.

Finally, I turn to the amendments from the noble Baroness that aim to create a special group of exemptions only for those journalists who are members of an approved regulator. As drafted, the Bill is designed to protect journalists who should be able legitimately to rely on these exemptions when undertaking journalism in the public interest, regardless of which regulator they belong to or whether they belong to any at all. The reality of the press landscape today is that the vast majority of publishers are not members of an approved regulator. As such, limiting certain exemptions to only those who are members of an approved regulator would limit the ability of most journalists in this country to undertake investigative journalism in the public interest. Whatever the motive or the intention behind these amendments, they are, I am afraid, either wrecking amendments or amendments designed to force publishers to sign up to a regulator to which they object—and that is not acceptable.

Section 40 of the Crime and Courts Act 2013 was mentioned. As we have previously discussed, the Government are currently considering Section 40 with regard to part 2 of the Leveson inquiry. We do not believe that using data protection legislation is an appropriate means of trying to incentivise compliance with, for example, Section 40.

The noble Lord, Lord Stevenson, observed just three weeks ago, and earlier this evening, that this is not perhaps the place for this debate. He commented:

“I do not think the Bill is the right place to rerun some of the long-standing arguments about Leveson”.—[Official Report, 22/11/17; col. 195.]


I concur with that observation, which he just reinforced with his observations about the need for us perhaps to look more clearly at what the real issue is rather than being distracted by trying to act as tail-end Charlies to a particular piece of legislation on data protection.

There will be a response to the consultation on Section 40 and Leveson 2, but I shall make one comment with regard to the suggestion about delay in that consultation process. Noble Lords may recollect that the Secretary of State was the subject of a judicial review application which made it impossible for her to proceed with the consultation because the terms of the consultation were the subject of legal challenge. Thereafter, when the consultation proceeded, there were more than 174,000 responses. They had to be analysed and considered, but the fact that there was that number of responses perhaps gives weight to the observation of the noble Lord, Lord Stevenson, about there being an issue that needs to be addressed, and therefore we must look forward to the response to the consultation. I invite the noble Baroness to withdraw the amendment.

[Baroness Hollins]

Before the Minister sits down, will he confirm that he will reflect on this debate, which has been very important, and in the light of the promised consultation report allow the debate to continue in the new year?

[Lord Keen of Elie]

I cannot guarantee the continuation of this debate, although the noble Lord, Lord Stevenson, appears determined to see it continue in the new year, under reference to his Amendment 165, and I look to engaging with him in a further interesting discussion on the topic at that stage. Beyond that, I say to the noble Baroness that the Government and Ministers are listening and considering these issues.

--- Later in debate ---

[Lord Keen of Elie]

The position with regard to the consultation and the response to the consultation is as I indicated before the break. Sir Brian Leveson has, very properly, asked to see material pertaining to the consultation and the responses to it because he is a necessary party in this context. Until he has had a reasonable opportunity to do that, it would not be appropriate for us to respond.

[Baroness Hollins]

My Lords, I would like just to make one or two corrections for the record. The noble and learned Lord suggested that the amendment, which would reserve some exemptions for newspapers signed up to a recognised regulator, would actually prevent the majority of journalists from engaging in investigative journalism. That is not the case. The exemptions required for investigative journalism remain intact for all journalists, regardless of their regulator.

There are one or two other corrections. The noble Lord, Lord Black, continues to misrepresent the establishment of the Press Recognition Panel, for example by saying that it is subject to interference by the Secretary of State. That is just not the case. It is so patently untrue that I can only assume that the noble Lord has not researched the facts, because it is a point that he has made before.

With respect to my noble friend Lord Pannick’s faith in the legal profession being able to sort out any illegal acts by newspapers, I will just say that affording the money to pay a lawyer and the time to mount a legal claim is not usually possible or a priority for victims of press abuse, particularly when they are in the midst of personal trauma. It is just not a priority. I personally would prefer that newspapers behaved themselves and did not fill lawyers’ pockets with money.

I take exception to being described as a bully. I have heard no compassion or concern for the victims of press abuse. Do noble Lords have any idea what it is like to be bullied by newspapers day after day after day? Any idea at all? To call my amendments bullying is unforgivable. Imagine the effect on the lady I spoke about before, who had lost weight and was described as a “grubby gran”. Imagine what that did to her mental state. I wonder whether she has been able to retain her weight loss.

This is the right Bill for these amendments. They are amendments to data protection legislation, and the victims of press abuse have waited a considerable length of time for an opportunity to take them forward. They are not hastily drawn-up, but the result of an extensive and impartial inquiry, and are as relevant today as they were in 2012. Sir Brian Leveson’s recommendations relate to the processing of data, not to the medium of publication, so it is irrelevant that the media landscape is changing.

I am grateful for the contributions of noble Lords who have spoken, in part because they demonstrate just how much there appears to be two parallel worlds. I assure your Lordships that I will return to this matter, but I beg leave to withdraw my amendment.