Data Protection Bill [HL]

Lord Low of Dalston Excerpts

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

I am absolutely delighted to know—with no prejudice against the other distinguished Ministers on the Front Bench—that the noble and learned Lord, Lord Keen, is going to reply to this debate. His forensic mind will fillet out the points that have been made, and we will be able to study Hansard tomorrow to find very clear reasoning for the Government’s actions, and then make a considered judgment of what we are going to do at Report.

[Lord Low of Dalston (CB)]

My Lords, I speak in support of the amendments tabled by the noble Baroness, Lady Hollins, those in the name of the noble Earl, Lord Attlee, and Amendments 185E and 185F, in the name of the noble Lord, Lord McNally, who has just spoken.

A range of amendments in this group relate to journalism and have different effects. It would be easy to characterise some of them as being in favour of greater press power and others in favour of reduced press power, but that would be wrong. The amendments that I am speaking to would implement and support the recommendations of the Leveson report. That report was a compromise—a split down the middle of the free speech concerns of some, and the concerns of others for the victims and wider public. Some of the other amendments in this group—not all of them—seek to undermine that compromise. When we have debates about Leveson, let us remember that they are not simply debates between the interests of the press and those of the public, but between those who have accepted the compromise and those who will not give an inch. Let us also remember that government inaction is what inspires the rejectionists to persevere.

Amendment 179A, in the name of the noble Baroness, Lady Hollins, would require the Government to proceed with a public inquiry into data protection breaches committed by or on behalf of newspaper publishers. This is long overdue. Such an inquiry is clearly merited after the scale of the abuses and breaches which were made clear in Operation Motorman and since. Court cases still being settled over the last year, with more expected, relate to this conduct. Of course, all parties agreed that such an inquiry was needed in 2011 and established the Leveson inquiry, but that part of the inquiry has still not proceeded. Instead, the Government have twisted and turned to satisfy the interests of the press, which calls for public inquiries into everything but its own scandals. I wonder why that might be. I hope that the Government will respond by beginning Leveson part 2.

The amendments of the noble Baroness, Lady Hollins, to Clauses 164 and 166 would prevent publishers accessing a staying mechanism which would in effect prevent pre-publication data protection claims ever being brought. This is anomalous, given that libel law allows such claims to be brought. There is no good reason for keeping the stay so long as the journalistic exemptions are protected. This amendment does not affect those exemptions and should be supported.

Amendments 170AA, 170AB and 170AC in the name of the noble Earl, Lord Attlee, replicate the terms of Section 40 of the Crime and Courts Act 2013, which this House voted for, as did the other place, but do so only for data protection claims. It remains a constitutional travesty that the Government have autocratically prevented Section 40 coming into force, using the executive power of non-commencement. Providing the costs protection and regulatory incentive of these amendments for data protection claims is a worthwhile objective in itself. If the relevant amendment also helps make the point to the Government that it is unacceptable to reverse a parliamentary vote in this way, then it will have served a second useful purpose. The amendments of the noble Earl, Lord Attlee, would also restore conditional fee agreements for data protection claims. Conditional fee agreements would ensure that the public are able to access justice even if Section 40 does not apply.

Amendments 185E and 185F, in the name of the noble Lord, Lord McNally, respond to five Select Committee reports, the Leveson report and multiple remarks, reports and representations from the Information Commissioner’s Office, allowing custodial penalties for the most egregious cases of data theft. It is not envisaged that many, if any, individuals would be sentenced in this way but, put simply, the mountain of evidence on the matter shows that a fine is not an adequate deterrent and is simply treated as no more than an overhead for the illegal trade in personal data. I therefore believe it important that the House should support the amendments of the noble Lord, Lord McNally.

[Lord Puttnam (Lab)]

It might surprise the noble Lord, Lord Black, to hear that I think his amendments are important and well worth discussing and crunching out. I listened to his speech very carefully. I will check Hansard tomorrow, but I think that he used the word “reasonable” about a dozen times. However, I ask him to consider that if he wants the sympathy of the House and of Parliament, he has to accept the fact that the reasonable expectations of reasonable people for the media to behave in a reasonable way is the way to go about this. Does he believe that the man on the Clapham omnibus would regard the current policy of apology and correction as remotely reasonable? If he is prepared to reconsider that and talk to the people with whom he works, perhaps there could be real movement here. IPSO does not necessarily have to become Impress but it can look at the obligations that have been placed on Impress and begin to behave accordingly.

--- Later in debate ---

[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.