Data Protection Bill [HL]

Lord Stevenson of Balmacara Excerpts

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

[Lord Blencathra]

Perhaps I may give the noble Lord some information which he may not have been aware of, as he may have left the Met by then. The reason that maybe up to 100 people were able to sue on the hacking was because their names appeared in the Mulcaire diaries, and the Met team kindly went and told every single person who had possibly been hacked, “They’re after you. You’re in Mulcaire’s diaries and you may care to contact some lawyers. Here are some lawyers who are doing a group action. If you join that, there is no great risk to yourself—you will be in there with a lot of others. The lawyers will be there on a no-win no-fee basis and you’re perfectly safe to do it”. That is why most of those people were able to go together in a joint action, but the thousands of individuals do not have a hope.

[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.

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Moved by

[Lord Stevenson of Balmacara]

81: Clause 20, page 12, line 19, after “GDPR” insert “, having regard to any relevant Recital of the GDPR,”

[Lord Stevenson of Balmacara]

My Lords, I am grateful to my noble friend Lord Kennedy for supporting me and to the noble Lord, Lord Clement-Jones, for adding his name to this amendment, which is one in search of an easy resolution—and I hope it can be done very quickly. The Minister and his colleagues have from time to time had to animadvert the recitals of the GDPR as evidence and support for claims that they make. I have no concerns with them doing that because I am quite happy with the recitals—I like them, understand them and think they are rather useful things to have around. What I do not understand is how that will happen when we go to the applied GDPR, when the only issue that will be able to be tested in court, as I understand it, is the GDPR itself. Therefore, I went to the Public Bill Office. Normally, its staff are difficult friends for an Opposition seeking to amend a Bill. They throw unforeseen, difficult and complicated legal issues in our way and make it very difficult for us to get to where we want. However, on this occasion, they said, “Leave it with us. We know exactly what you want. We will put an amendment together that will satisfy every concern you have”. It is there in front of us as Amendment 81, which I beg to move.

--- Later in debate ---

[Lord Ashton of Hyde]

Sorry, I should have said “ad infinitum”—that is perfectly correct.

The Government do not dispute that recitals form an important part of the GDPR. As I said, we have all referred to one recital or another many times. There is nothing embarrassing or awkward about that. It is a fact of EU law that courts often require assistance in properly interpreting the articles of a directly applicable regulation—and we, as parliamentarians, need to follow that logic, too.

I would remind noble Lords that the Government have been clear that the European Union (Withdrawal) Bill will be used to deliver two things which are very important in this context. First, under Clause 3 of the withdrawal Bill, recitals of directly applicable regulations will be transferred into UK law at the same time as the articles are transferred. There is no risk of them somehow being cast adrift. Where legislation is converted under this clause, it is the text of the legislation itself which will form part of domestic legislation. This will include the full text of any EU instrument, including its recitals.

Secondly, Clause 6 of the withdrawal Bill ensures that recitals will continue to be interpreted as they were prior to the UK’s exit from the EU. They will, as before, be capable of casting light on the interpretation to be given to a legal rule, but they will not themselves have the status of a substantive legal rule. Clause 20(5) of this Bill ensures that whatever is true for the interpretation of the GDPR proper is also true for the applied GDPR.

More than 10,000 regulations are currently in force in the European Union. Some are more important than others but, however you look at it, there must be more than 100,000 recitals across the piece. The European Union (Withdrawal) Bill provides a consistent solution for every single one of them. It seems odd that we would want to use this Bill to highlight the status of 0.1% of them. Nor, as I say, is there a need to: Clause 20 already ensures that the applied GDPR will be interpreted consistently with the GDPR, which means that it will be interpreted in accordance with the GDPR’s recitals wherever relevant, both before and after exit.

There is one further risk that I must draw to the House’s attention. Recitals are not the only interpretive aid available to the courts. Other sources, such as case law or definitions of terms in other EU legislation, may also be valid depending on the circumstances. Clause 20(5) as drafted provides for all interpretive aids to the GDPR to apply to the applied GDPR. By singling out recitals the amendment could uniquely elevate their status in the context of the applied GDPR above any other similar aids. This, in turn, may cause the GDPR and applied GDPR to diverge.

The drafting of the noble Lord’s amendment is also rather perplexing. It seeks to affect only the interpretation of the applied GDPR. The applied GDPR is an important part of the Bill but it is relatively narrow in its application. I am not sure it has the importance that the noble Lord’s amendment seeks to attach to it. It is, at most, a template for what will follow post exit.

I will not stand here and say that the noble Lord’s amendment would be the end of the world. That would be disingenuous. However, it is unnecessary, it risks unintended consequences and it does not achieve what the noble Lord is, I think, attempting. For those reasons, I am afraid I am unable to support his amendment this evening and I ask him to withdraw it.

[Lord Stevenson of Balmacara]

That is a very disappointing end to a rather splendid day. If you read Amendment 81 closely, it simply says “having regard to”, which is probably the weakest form of expression you can find in any legal circumstance. I am a bit surprised that the Minister could not come to a better conclusion than he did. In fact, we got a sort of Pepper v Hart-ish approach to it; we can rely on it but it is not as good as it would have been if we had agreed Amendment 81. I can say nothing more on this except that I am sure that we will return to this at some stage. I beg leave to withdraw the amendment.

Amendment 81 withdrawn.