Data Protection Bill [HL]

Lord Lester of Herne Hill Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Black of Brentwood]

My Lords, I am going to give way to judicial friends who are probably waiting to speak and will be able to deal with the question about the courts better than I can.

[Lord Lester of Herne Hill (LD)]

I remember Lord Campbell of Alloway once saying to me, “Never make a serious point after the dinner hour”. I think I now understand what he meant. I am in some difficulty, because my noble friends have not moved Amendment 88. I was hoping to make a speech explaining why I profoundly disagree with Amendment 88. Even given the flexibility of the rules of procedure of the House, I am not sure that I can do that until one of them moves Amendment 88. I am going to give them the opportunity of doing so.

[Lord Skidelsky]

The noble Lord, Lord Black, paints an incredibly rosy picture of the state of press regulation in the last 20 years. What he ignores is the background to the Leveson inquiry itself and the statutory system—the royal charter and so on—which followed it. There were years in which many newspapers grossly abused their freedom of speech. That is why this interlocking set of propositions, as he calls them, got going and produced a system which all the parties in Parliament accepted in 2013. He says that no other country in the world has a system like ours. No other country has had such an abusive press in parts, though not all the press by any means. These amendments seek to create a balance between freedom of speech and the right of privacy by setting up an auditor to determine how that balance is kept. It is an independent auditor, not part of the Government or the state. The noble Lord, Lord Black, seems to confuse the role of the state with that of an independent auditor, so the argument falls to the ground.

--- Later in debate ---

Today, I had a letter from the Press Regulation Panel, which with all good organisation, I cannot find in my papers. The Press Regulation Panel stands ready to work for such a solution with all the best intentions in the world: not to have a state-regulated press, but to have something that gets that balance right between privacy and press freedom, privacy and freedom of speech. My noble friend Lord Lester has written a very good book about five freedoms. The two freedoms put side by side are privacy and freedom of speech. But as it is now, that balance has not been reached. The noble Lord, Lord Black, has not moved an inch this evening. I can only say, as I said before, that this issue will not go away; not because people want to hijack Bills, but because from the media there is no repentance, no remorse and no realisation that there is still a great public demand to see them mend their ways.

[Lord Lester of Herne Hill]

My Lords, I wonder whether it might be helpful for me to begin by trying to find what we can all agree on and then look at what we cannot agree on. Everyone here, I am sure, will agree that the right to freedom of speech and the right to freedom of the press are essential foundations of a democratic society. Everyone would agree that the proper functioning of a modern participatory society requires the media to be free, active, professional—I underline the word “professional”—and inquiring. That is why the courts recognise the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary. As a great American judge once put it, one should not burn the house down in order to roast the pig.

Everyone would also agree, including the noble Lord, Lord Black, that freedom of expression and press freedom are not absolute rights; they carry responsibilities. The fate of the News of the World and the journalists convicted of gross abuses of privacy are examples of the need for effective regulation of the press and a fair balance between competing rights and interests. The way in which the family of the noble Baroness, Lady Hollins, was treated by the press was completely disgraceful and I am not surprised that ever since, she has pursued these issues with courage and determination. That does not mean that she is necessarily right, but it does mean that we should acknowledge that she and her family are real victims of real press abuse.

My noble friend Lord McNally will remember, since he and I made the Defamation Act 2013, how that Bill was hijacked in the House of Lords in order to try to coerce the press into what is now seen as a desirable system of regulation. Members of the House will remember that the Prime Minister refused to allow progress to be made on the then Defamation Bill until it was no longer taken hostage. What happened was that a deal was done, with Oliver Letwin as the broker, I think, to try to reach a compromise between the conflicting interests of privacy and free speech. Hacked Off got into the room without the press being represented and the result was the striking of a bargain that the press was profoundly opposed to. It was profoundly opposed to it because of the swingeing penalties by way of punitive damages and arbitrary costs rules as a punishment for the press if it did not join the system that was seen to be post Leveson. The reason why the press did not follow that path was that, among other things, it was advised by the noble Lord, Lord Pannick, and by me that it would be entirely unlawful for the press to be subject to arbitrary costs rules so that even if the press won, it would be liable to pay the other side’s legal costs and punitive damages. The noble Lord, Lord Pannick, advised in particular, and I agreed with him, that these were clearly contrary to the European Convention on Human Rights.

It is not true, as my noble friend Lord McNally seems to think, that nothing then happened, because something major did happen. The press barons who had for years been negligent and I would say stupid in opposing effective press regulation through the Press Complaints Commission, which was a useless and toothless regulator, realised in the end that the writing was on the wall. They appointed Sir Alan Moses, a very independent Court of Appeal judge, to become chairman of the Independent Press Standards Organisation. IPSO tackles media abuse. Although I know that not all agree, it is the independent regulator under a very independent chair for the newspaper and magazine industry in the UK. It regulates more than 1,500 print and 1,100 online titles. It handles complaints about possible breaches of the editors’ code. It gives guidance for editors and journalists. It advises about the editors’ code and it maintains a journalists’ whistleblowing hotline. Members of its staff are available to advise the public, complainants, editors and journalists, and it monitors its members’ compliance with the editorial code. It also carries out standards investigations where it believes that there have been serious and systemic breaches of the code.

Amendment 88, spoken to by my noble friend Lord McNally, would remove the reference in Schedule 2 to the IPSO Editors’ Code of Practice as a code of practice to be taken into account in determining whether it is reasonable for the controller to believe that publication is in the public interest. It would leave reference to the BBC Editorial Guidelines and the Ofcom Broadcasting Code, but make it more difficult for a publisher governed by IPSO to defend itself by relying on IPSO’s professional code.

--- Later in debate ---

[Lord Skidelsky]

I wonder how relevant all those last bits are to the subject we are discussing.

[Lord Lester of Herne Hill]

The relevance of what I have just said is that Max Mosley, who funds Impress, is fanatical in his desire for a privacy law that involves prior restraints. That simply indicates a complete lack of balance in his approach.

[Lord Skidelsky]

I have one more question. I thought we were discussing the substance of the argument, not the personalities of the people who may support one side or the other.

--- Later in debate ---

[Lord Lester of Herne Hill]

I was not discussing personalities, but what happened in the case in Strasbourg. I was about to say that, ironically, the Strasbourg court of human rights had regard to the editors’ code in the course of giving its judgment, so it certainly regarded the old editors’ code as relevant for that purpose.

The Explanatory Notes to the Bill state:

“Article 85 of the GDPR requires Member States to provide exemptions or derogations from certain rights and obligations in the context of processing personal data for journalistic purposes or the purpose of academic, artistic or literary expression”.


The notes go on to explain how that works. Article 10 is engaged, as there is an inherent tension between data protection and the right to freedom of expression. The Government were right to recognise those inherent tensions, which are not new. Personal data is about private information. I am reliably told that those public figures who wish to keep their private information away from inquiry now, as a matter of course, use data laws to protect publication in newspapers. If the correct balance is not struck, the ability of the press to act as a watchdog will be impaired to the detriment of democracy. Investigations, such as those into sex grooming, will become more difficult to publish.

The exemptions in Part 5 of Schedule 2 to the Bill are not new. They carry forward similar provisions in the Data Protection Act 1998. There is no good reason to amend them to the detriment of IPSO titles. It would be punitive to do so. Article 88 treats the majority of the print media, regulated by IPSO, less favourably than the BBC, broadcasters regulated by Ofcom and, if the amendment of the noble Lord, Lord Skidelsky, is accepted, members of Impress. That would mean that members of IPSO would be unable to rely on their compliance with the editors’ code—to which they are bound by contract—in their defence. It is difficult to understand the justification for this form of discrimination against editors and journalists working for our national and regional newspapers.

[Lord McNally]

I do not know how many more pages my noble friend has of this. Somewhere in it must be the recognition that IPSO has not applied for recognition, which would have given it all the protections he is calling for. He does not do himself a service. One of the reasons why people get irritated by the lawyers in this House is that they think that if they make a long enough speech it must be so and only the wicked would disagree. The reason why IPSO would be under threat is that it has not sought recognition. He gave a long list of IPSO’s supposed strengths. It is a sweetheart organisation. It is run by the newspaper owners. That is what we are trying to move away from.

I have now found something on the independent overseas press regulation. David Wolfe QC has said that it is disappointing that there continue to be attempts to prevent the recognition system working and that it is frustrating that Section 40 of the Crime and Courts Act has not been commenced. I would be a lot more impressed with my noble friend if he got behind that, or at least gave his friends in IPSO some really good advice and asked them to try to find a way forward with press regulation, instead of giving them an absolute veto on seeking a solution to this matter. I have finished—for the time being.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, I have tried to explain that the objection to the post-Leveson deal was that it was punitive and unfair. That is why the press chose, as is its right, not to be part of it. It chose instead a system of self-regulation with a very independent Court of Appeal judge, who, when he took office, made it clear that he would insist upon the system working properly and independently, as he has ever since. It is true that he has had to struggle against resistance by some newspapers, but that is the system we have.

[Baroness Hollins]

The noble Lord’s support for IPSO as being substantially better than the PCC is surprising. It has done no standards investigations, issued no fines and made no front-page corrections. I do not understand how that can be seen as regulation.

The noble Lord described Hacked Off as a movement set up to support celebrities. It was actually motivated by the Dowlers and sustained because of concerns about people like the McCanns and Christopher Jefferies. It is not about celebrities. Celebrity money has provided some of its support because they were motivated by hearing about those appalling abuses. That is what it is about.

All my amendments would do is incentivise a regulator to seek approval of its independence. Why will IPSO not seek approval and recognition of its independence? Why is it so afraid? Is it because it is not independent?

[Lord Lester of Herne Hill]

My Lords, I am not here on behalf of IPSO; I am not counsel for IPSO. I have simply tried to explain historically why we are where we are and the arguments the press made in the past that I was party to at the time, as was the noble Lord, Lord Pannick. If there are points to be made about the way in which IPSO works, no doubt they will be made by Members of the House. I stand corrected by the noble Baroness, Lady Hollins, who reminds me that it was not only celebrities who were abused, which is completely true.

What I am trying to say is that no democracy in the world has a system of press regulation that has been formulated post Leveson. It is objectionable to our national and regional newspapers. They will not change and suddenly agree to a different system because of anything which your Lordships say or do. It is a free press and the sensible thing to do is to make the system work. I believe that under Sir Alan Moses it is working, but if it is not working sufficiently, I am sure that they would be interested in any suggestions. It is hopeless if your Lordships believe that you can bully them into giving up their self-regulation in favour of the statutory system which they reject.

[Earl Attlee]

The noble Lord has been very helpful to the Committee. He told us what the disadvantages would be for a media operator if they were not signed up to an approved regulator. Can he tell the Committee what the advantages would be for a media operator if they were signed up to an approved regulator?

[Lord Lester of Herne Hill]

I do not understand the question. It depends on which regime we are talking about. Right now, there would be no advantages.

[Lord Skidelsky]

I have never heard a more absurd argument than that we can trust IPSO because Sir Alan Moses is chairman of it. Sir Alan is an admirable person; he is personal friend. How long is he going to be chairman? Who is the next chairman going to be? What about the independence of the editors’ code? The code may be fine at the moment, but it can be changed any time the committee decides without Parliament having any say in it at all.

[Lord Lester of Herne Hill]

I have been very careful not to traduce Impress or Max Mosley, nor will I seek to defend Alan Moses. We are not concerned with individual personalities; we are concerned with a political problem.

[Lord Skidelsky]

With great respect, we are concerned with the permanence of arrangements set up and put into primary legislation. The chairman of IPSO is not there for ever, and the code can be rewritten whenever the committee decides to do so.

--- Later in debate ---

[Lord Keen of Elie]

The terms of the editors’ code are now referred to as the IPSO code, but I take the noble Lord’s point and I will take away and consider whether there is any material issue about using the designation of that code in the schedule. However, it is, with respect, essentially the editors’ code as it was originally recognised. As I understand it, that is reflected in the Information Commissioner’s current guidance under reference to Section 32, which is why it appears in the schedule in the form that it does.

[Lord Lester of Herne Hill]

I shall be corrected in due course if I am wrong, but I think the position is that the editors’ code was the code that was formulated under the PCC, and then when Sir Alan Moses became chair of IPSO the code was then amended to strengthen it—but I shall be corrected if that turns out to be mistaken.

[Lord Keen of Elie]

The noble Lord is quite right that it had its origin as the editors’ code before the PCC, but I am reflecting the fact that the Information Commissioner, being aware of the genesis of that code and its approval, has, as I understand it, under current guidance under reference to Section 32 of the existing Act acknowledged it as a relevant code. It seems to me that we may be arguing around designation rather than content, and I will give further consideration to the question of designation.

Removing that code—I will call it “that code” for present purposes—as proposed in the amendments would be a quite extraordinary step. Whatever one might think of IPSO, we should recognise that it has more than 2,500 members, including most of the major tabloids and broadsheets. Removing the code from the Bill would therefore remove protections for the vast majority of our press industry and cause significant detriment to what is a free press.

No codes adopted by a Press Recognition Panel-approved regulator are listed—and of course there is only Impress in that context. Under current legislation the Information Commissioner’s guidance on Section 32 does not include that code. That does not mean that such a code cannot be included in the future. However, before amending the list of codes, the current and proposed legislation makes it clear that the Secretary of State must consult the Information Commissioner. The self-regulator Impress has applied for its standards code to be included in the schedule, and the Secretary of State is currently considering that application—but in due course, once she has considered the application, she will have to refer to the Information Commissioner and consult her about that application.

I should also emphasise that the current list of codes, allowing for the point about designation, does not represent an endorsement of any one press regulator over another. This is about ensuring that the codes listed are appropriate, having regard to the need for data protection.

It is also worth noting that the exemption the Bill provides to those processing data for special purposes will be available to all journalists where the criteria set out in paragraph 24(2) of Schedule 2 are met. Where a publication is subject to one of the listed codes of conduct, it must take that code into account when determining whether publication is in the public interest. However, although the commissioner’s current guidance emphasises that compliance with industry codes will help demonstrate compliance, those publications that are not subject to a code are not somehow excluded from qualifying under the relevant exemptions, if they meet the three-part test in paragraph 24.

I appreciate that the intention of Amendment 91 is to ensure that we interpret the notions relating to journalism broadly and, in doing so, protect the right to freedom of expression. However, there is no requirement for this amendment if one has regard to Clause 184, the relevant interpretation clause, which makes it clear and underlines that material need be available only to a section of the public, and that would include those who subscribe by way of a fee for particular access to material. So these exemptions will extend to the sort of body that was referred to by the noble Lord in relation to Amendment 91. If anything, there is duplication, because we have not only paragraph 24(9), which refers to the public and a “section of the public”, but Clause 184, which defines the public by reference to, and includes, a section of the public. I believe that there was an earlier proposal to take paragraph 24(9) out in order to avoid that duplication.

I turn to the amendment tabled by the noble Baroness, Lady Hollins, and supported by my noble friend Lord Attlee. Article 85 of the GDPR requires member states to reconcile the right of protection of personal data with the right to freedom of expression and information, which is of course embraced by the European Convention on Human Rights. Although like, clearly, other Members of the Committee, I have great sympathy for the noble Baroness’s own experience, I firmly believe that the Bill strikes the right balance in reconciling these interests and aligns with the requirements of the regulation.

By contrast, the proposed amendments seek to reset that balance, so that the right to personal information privacy trumps that of the right to freedom of expression and information. This would be inconsistent with Article 85, which recognises the special importance of freedom of expression and provides a wide power to derogate from the regulation for processing for the special purposes. That point was elaborated by the noble Lord, Lord Lester of Herne Hill, when he underlined the importance of the freedom of the press in this context.

Amendment 87A seeks to amend the journalistic data protection exemption to make it available only where the processing of data is necessary for publication, rather than simply being undertaken with a view to publication. I fear that this does not reflect the realities of how journalists work and how stories, including the most sensitive and important pieces of investigative journalism, are put together and published. A journalist will not know what is necessary until the data has been gathered, reviewed and assessed.

Amendments 87C and 87D relate to what factors the controller must take into account when considering whether publication of data would be in the public interest. The amendments would remove the requirement on the controller to take account of the special importance of the public interest in freedom of expression and information, and make the exemption available only where, objectively, the likely interference with privacy resulting from the processing of the data is outweighed by the public interest.

Controllers already have to consider issues of privacy when considering the public interest. But this amendment goes too far in saying that public interest can be trumped by privacy, weighting the test away from freedom of expression. This is again contrary to Article 85, which requires a reconciliation of these rights. I understand the noble Baroness’s intent here, and the harm that she seeks to prevent, but the rebalancing that she suggests goes too far.

Finally, Amendments 89B and 91A aim to narrow the exemptions for journalists who are not members of an approved regulator as defined by the Crime and Courts Act 2013. Fundamentally, these provisions are about protections that journalists should be able to legitimately rely on in going about their important work. We should view these clauses through that lens—as vital protections that give journalists the ability to inform us about the world in which we live and to effectively hold those in power to account.

The Government do not condone the past behaviour of individual media organisations, nor, as I noted earlier, do we seek to legitimise it. Equally, though, we do not think the problems that Sir Brian Leveson and others have identified can, or indeed should, be fixed through the medium of data protection law. Indeed, the Government feel strongly that these important protections for journalists should be maintained.

We must strike the right balance in reconciling the right to privacy with the right to freedom of expression and information. I hope I have gone some way towards explaining how the Bill seeks to do that. I hope I have addressed the concerns that have been expressed through the amendments, and I urge noble Lords to withdraw them.