Data Protection Bill [HL]

Lord Stevenson of Balmacara Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

[Lord Clement-Jones]

My Lords, we will see if the EU withdrawal Bill gets passed, but that is a matter for another day.

I thank the Minister for his remarks. There are many aspects of his reply which Members around the House will wish to unpick.

[Lord Stevenson of Balmacara (Lab)]

Perhaps I may pursue this for a second. It is late in the evening and I am not moving fast enough in my brain, but the recitals have been discussed time and again and it is great that we are now getting a narrow understanding of where they go. I thought we were transposing the GDPR, after 20 May and after Brexit, through Schedule 6. However, Schedule 6 does not mention the recitals, so if the Minister can explain how this magic translation will happen I will be very grateful.

[Lord Ashton of Hyde]

We are not transposing the GDPR. It takes direct effect on 25 May.

[Lord Stevenson of Balmacara]

I knew I was slow. We are moving to applied GDPR; that is correct. The applied GDPR, as I read it in the book—that great wonderful dossier that I have forgotten to table; I am sure the box can supply it when we need it—does not contain the recitals.

[Lord Clement-Jones]

My Lords, just to heap Pelion on Ossa, I assume that until 29 March the recitals are not part of UK law.

--- Later in debate ---

[Lord McNally (LD)]

My Lords, when the famous French long-serving Foreign Minister Talleyrand died and the news was taken to his long-term rival Prince Metternich of Austria, Metternich looked at the telegram and said, “What does he mean by this?”. Some of my friends have a similar reaction to any amendments that carry the name of the noble Lord, Lord Black, but I am not among them. I think that we share a common belief in a free and a vigorous and independent press. He knows that when at Second Reading he referred to the Defamation Act 2013, my ears pricked up, because it is one of the things that I am most proud of from my time as a Minister. With my noble friend Lord Lester as my mentor, we piloted that Bill into legislation. I am certainly very interested in any amendment that would prevent this Bill becoming a backdoor to getting around the protections that the Defamation Act gave to free comment and academic freedom to have peer comment, and so on. The Act has worked—we are no longer considered the libel capital of the world—and there is a great deal more freedom in the academic world for peer comments and criticisms, without the threat of libel actions, which had a chilling effect.

The problem is that this is an alphabet soup of amendments, which the noble Lord, Lord Black, has put forward with great clarity, so we will be able to study what exactly he wants to do and how he wants to do it. I am interested in a number of things; I am interested in the idea, which he quite rightly pointed out, of investigative journalists having to give prior notice of what they are doing, which seems rather counterintuitive to the idea of investigative journalism. I have certainly received that point of view from the BBC and other forms of journal about the effect of that proposal. The noble Lord, Lord Black, is quite right. We have seen only recently the Paradise papers as another example of investigative journalism exposing things that people would rather keep quiet, which is massively in the public interest. He also referred to the number of exposés of care homes, prisons and young offender institutions, all of which are massively in the public interest. It would be wrong to allow the Bill to bring into law provisions that would chill, prevent or curb the great traditions of a free and vigorous press. In the spirit of Committee stage, I would like to look carefully at what the amendments of the noble Lord, Lord Black, seek to do. As he knows, after Second Reading I offered to collaborate with him on amendments but that would probably have been too great a shock to both our constitutions. However, I would certainly be interested to see where we can work together on the broad aim of ensuring that the Bill contains no accidental curbs on the activities of a vigorous and free press and media.

As I have said before, the noble Lord, Lord Black, and his friends would be in a stronger position if the background to this was not one of previous criminality and invasion of the privacy of people who had every right to see their privacy protected. Therefore, there is bound to be a certain scepticism about whether these proposals give overgenerous access to overbroad exemptions. But let us have a look at them and at some of the issues that have been raised in other quarters—as I say, by the BBC and journals that are not members of IPSO that have expressed the concerns raised by the noble Lord, Lord Black. Following that and what the Minister is about to tell us, we can then make judgments about how we shall approach these issues on Report.

[Lord Stevenson of Balmacara]

My Lords, we are all very grateful to the noble Lord, Lord Black, for his very full introduction to these amendments. I shall read very carefully what the noble Lord, Lord McNally, said and take his remarks on their merits. I have no problem with that.

I am sure that the noble Lord, Lord Black, will not mind if I quote what he said in Committee only a week ago and pose a question to him. He said:

“This Bill is very carefully crafted to balance rights to free expression and rights to privacy, which of course are of huge importance. It recognises the vital importance of free speech in a free society at the same time as protecting individuals. It replicates a system which has worked well for 20 years and can work well for another 20”.—[Official Report, 6/11/17; cols. 1667-68.]


What a difference a week makes to one’s thinking. The noble Lord was pressed by a number of noble Lords, including his noble friend Lord Attlee, to come up with a much more detailed and engaged critique. We would love to hear from him again if he is prepared to tell us why there has been a change in his thinking. However, I do not think that gets in the way of what he is saying, which is that some issues need to be addressed. We will look at them carefully when we have the chance to see them in print. I shall also be interested to hear what the noble Baroness makes of this when she replies.

[Baroness Chisholm of Owlpen (Con)]

As my noble friend Lord Black and the noble Lord, Lord Stevenson, said, the Government are firmly committed to preserving the freedom of the press, maintaining the balance between privacy and the freedom of expression in our existing law that has served us well.

I shall try to reply to my noble friend as I go through the many amendments—a soup of amendments, as the noble Lord, Lord McNally, said. As we heard, Amendments 87ZA, 87AA, 87AB and 87AC would enable the special purposes exemptions to be used when processing for other purposes in addition to a special purpose. The use of the word “only” in the Bill is consistent with the existing law. Examples have been given of where further processing beyond the special purposes might be justified without prejudicing the overall journalistic intent in the public interest. None the less, the media industry has been able to operate effectively under the existing law, and while we are all in favour of further clarity, we must be careful not to create any unintended consequences.

Paragraph 24(3) of Schedule 2 concerns the test to determine whether something is in the public interest. Amendment 87CA seeks to define the compatibility requirement, and Amendments 87DA and 87DB seek to clarify the reasonable belief test. The Bill is clear that the exemption will apply where the journalist reasonably believes that publication would be in the public interest, taking account of the special importance of the public interest in the freedom of expression and information. To determine whether publication is in the public interest is a decision for the journalist. They must decide one way or another. It is not necessary to change the existing position.

Amendments 89C to 89F seek to widen the available exemptions by adding in additional data rights that can be disapplied. Amendment 89C seeks to add an exemption for article 19 concerning the obligation to give the data subjects notice regarding the processing carried out under articles 16, 17 and 18 of the GDPR. The Bill already provides exemptions for the special purposes for these articles, rendering article 19 irrelevant in this context.

Amendment 89D seeks to add an exemption for article 36. This requires the controller to give notice to the Information Commissioner before engaging in high-risk processing. My noble friend Lord Black and the noble Lord, Lord McNally, both argued that this might require the commissioner to be given notice of investigative journalistic activity. This is not the case. We do not believe that investigative journalism needs to put people’s rights at high risk. Investigative journalism, like other data-processing activities, should be able to manage risks to an acceptable level.

Amendment 89E concerns the need for journalists to transfer data to third countries. We are carefully considering whether the GDPR creates any obstacles of the type described. We certainly do not intend to prevent the transfers the noble Lord describes.

Amendment 89F seeks to add an exemption from the safeguards in article 89 that relate to research and archiving. Following the interventions of the noble Lord, Lord Patel, the Government have agreed to look again at these safeguards. Once we have completed that, we will assess whether any related derogations also need reconsidering.

Amendment 91B seeks to introduce a time limit by which complaints can be brought. The Government agree that complaints should be brought in a timely manner and are concerned to hear of any perceived abuses. We will consider this further and assess the evidence base.

The Government are firmly committed to preserving the freedom of the press and preventing restrictions to journalists’ ability to investigate issues in the public interest. We will continue to consider the technical points raised by my noble friend, and I hope—at this late hour, and with the view that we will further consider points that have been raised—that he feels able to withdraw his amendment.