Data Protection Bill [Lords]

Baroness Winterton of Doncaster Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 9th May 2018 Commons Chamber

[The Secretary of State for Digital, Culture, Media and Sport (Matt Hancock)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

Government new clause 22—Review of processing of personal data for the purposes of journalism.

Government new clause 23—Data protection and journalism code.

New clause 18—Data protection breaches by national news publishers—

“(1) The Secretary of State must, within the period of three months beginning with the day on which this Act is passed, establish an inquiry under the Inquiries Act 2005 into allegations of data protection breaches committed by or on behalf of national news publishers and other media organisations.

(2) Before setting the terms of reference of and other arrangements for the inquiry the Secretary of State must—

(a) consult the Scottish Ministers with a view to ensuring, in particular, that the inquiry will consider the separate legal context and other circumstances of Scotland;

(b) consult Northern Ireland Ministers and members of the Northern Ireland Assembly with a view to ensuring, in particular, that the inquiry will consider the separate legal context and other circumstances of Northern Ireland;

(c) consult persons appearing to the Secretary of State to represent the interests of victims of data protection breaches committed by, on behalf of or in relation to, national news publishers and other media organisations; and

(d) consult persons appearing to the Secretary of State to represent the interests of news publishers and other media organisations (having regard in particular to organisations representing journalists).

(3) The terms of reference for the inquiry must include requirements—

(e) to inquire into the extent of unlawful or improper conduct by or on behalf of national news publishers and other organisations within the media in respect of personal data;

(f) to inquire into the extent of corporate governance and management failures and the role, if any, of politicians, public servants and others in relation to failures to investigate wrongdoing at media organisations within the scope of the inquiry;

(g) to review the protections and provisions around media coverage of individuals subject to police inquiries, including the policy and practice of naming suspects of crime prior to any relevant charge or conviction;

(h) to investigate the dissemination of information and news, including false news stories, by social media organisations using personal data;

(i) to consider the adequacy of the current regulatory arrangements and the resources, powers and approach of the Information Commissioner and any other relevant authorities in relation to—

(i) the news publishing industry (except in relation to entities regulated by Ofcom) across all platforms and in the light of experience since 2012;

(ii) social media companies;

(j) to make such recommendations as appear to the inquiry to be appropriate for the purpose of ensuring that the privacy rights of individuals are balanced with the right to freedom of expression.

(4) In setting the terms of reference for the inquiry the Secretary of State must—

(k) have regard to the current context of the news, publishing and general media industry;

(l) must set appropriate parameters for determining which allegations are to be considered;

(m) determine the meaning and scope of references to national news publishers and other media organisations for the purposes of the inquiry.

(5) Before complying with subsection (4) the Secretary of State must consult the judge or other person who is likely to be invited to chair the inquiry.

(6) The inquiry may, so far as it considers appropriate—

(n) consider evidence given to previous public inquiries; and

(o) take account of the findings of and evidence given to previous public inquiries (and the inquiry must consider using this power for the purpose of avoiding the waste of public resources).

(7) This section comes into force on Royal Assent.”

This new clause would require the establishment of an inquiry under the Inquiries Act 2005 as recommended by Lord Justice Leveson for Part two of his Inquiry.

New clause 20—Publishers of news-related material: damages and costs (No. 2)—

“(1) This section applies where—

(a) a relevant claim for breach of the data protection legislation is made against a person (‘the defendant’),

(b) the defendant was a relevant publisher at the material time, and

(c) the claim is related to the publication of news-related material.

(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the claimant unless satisfied that—

(d) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or

(e) it is just and equitable in all the circumstances of the case, including, for the avoidance of doubt—

(i) the conduct of the defendant, and

(ii) whether the defendant pleaded a reasonably arguable defence, to make a different award of costs or make no award of costs.

(3) If the defendant was not an exempt relevant publisher and was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—

(f) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or

(g) it is just and equitable in all the circumstances of the case, including, for the avoidance of doubt—

(i) the conduct of the claimant, and

(ii) whether the claimant had a reasonably arguable claim, to make a different award of costs or make no award of costs.

(4) This section is not to be read as limiting any power to make rules of court.

(5) This section does not apply until such time as a body is first recognised as an approved regulator.”

This new clause would provide that court costs of non-abusive, non-vexatious, and non-trivial libel and intrusion claims would be awarded against a newspaper choosing not to join a Royal Charter-approved regulator offering low-cost arbitration, but that newspapers who do join such a regulator would be protected from costs awards even if they lose a claim.

New clause 21—Publishers of news-related material: interpretive provisions (No. 2)—

“(1) This section applies for the purposes of section (Publishers of news-related material: damages and costs (No. 2)).

(2) “Approved regulator” means a body recognised as a regulator of relevant publishers.

(3) For the purposes of subsection (2), a body is “recognised” as a regulator of relevant publishers if it is so recognised by any body established by Royal Charter (whether established before or after the coming into force of this section) with the purpose of carrying on activities relating to the recognition of independent regulators of relevant publishers.

(4) “Relevant claim” means a civil claim made in respect of data protection under the data protection legislation, brought in England or Wales by a claimant domiciled anywhere in the United Kingdom.

(5) The “material time”, in relation to a relevant claim, is the time of the events giving rise to the claim.

(6) “News-related material” means—

(a) news or information about current affairs,

(b) opinion about matters relating to the news or current affairs, or

(c) gossip about celebrities, other public figures or other persons in the news.

(7) A relevant claim is related to the publication of news-related material if the claim results from—

(d) the publication of news-related material, or

(e) activities carried on in connection with the publication of such material (whether or not the material is in fact published).

(8) A reference to the “publication” of material is a reference to publication—

(f) on a website,

(g) in hard copy, or

(h) by any other means,

and references to a person who “publishes” material are to be read accordingly.

(9) A reference to “conduct” includes a reference to omissions; and a reference to a person’s conduct includes a reference to a person’s conduct after the events giving rise to the claim concerned.

(10) “Relevant publisher” has the same meaning as in section 41 of the Crime and Courts Act 2013.

(11) A relevant publisher is exempt if it satisfies Condition A or B.

(12) Condition A is that the publisher has a constitution which—

(a) requires any surplus income or gains to be reinvested in the publisher, and

(b) does not allow the distribution of any of its profits or assets (in cash or in kind) to members or third parties.

(13) Condition B is that the publisher—

(a) publishes predominantly in Scotland, or predominantly in Wales, or predominantly in Northern Ireland or predominantly in specific regions or localities; and

(b) has had an average annual turnover not exceeding £100 million over the last five complete financial years.”

This new clause would provide that the penalty incentives in New Clause 20 would not apply to companies which publish only on a regional or local basis and have an annual turnover of less than £100m. It sets out that only data protection claims are eligible, and provides further interpretive provisions.

Amendment (a), line 33 leave out subsection (10) and insert—

“(10) ‘Relevant publisher’ has the same meaning as in section 41 of the Crime and Courts Act 2013, subject to subsection (10A).

(10A) For the purposes of this Act, a publisher shall only be a ‘relevant publisher’ if—

(a) it has a registered address in England or Wales; and

(b) its publications are published in, or in any part of, England or Wales.

(10B) A relevant claim may be made under the data protection legislation only in respect of material which is published by a relevant publisher (as defined by subsections (10) and (10A)) and which is read or accessed in England or Wales.”

Government amendments 146 to 150 and 145.

Amendment 144, page 122, line 10, in clause 205, leave out “Section 190 extends” and insert—

“Sections (Publishers of news-related material: damages and costs (Amendment 2)), (Publishers of news-related material: interpretive provisions (Amendment 2)) and 190 extend”.

Amendment 14, page 156, line 4, in schedule 2, at end insert—

“(d) any code which is adopted by an approved regulator as defined by section 42(2) of the Crime and Courts Act 2013.”

This amendment would give the Standards Code of an approved press regulator the same status as the other journalism codes recognised in the Bill (The BBC and Ofcom Codes, and the Editors’ Code observed by members of IPSO).

[Matt Hancock]

The Data Protection Bill sets out a full new data protection regime for Britain, giving people more control over their data.

First, I wish to address new clauses 20 and 21, before turning to the other new clauses. These new clauses are essentially the provisions contained in sections 40 and 42 of the Crime and Courts Act 2013, although they would apply only to breaches of data protection law and only in England and Wales.

Let me first set out exactly what these new clauses would mean and then our approach to them. They would set new cost provisions for complaints against the press, which means that any publication not regulated by IMPRESS would have to pay the legal costs for any complaint against it, whether it won or lost. Many would object to that and say that it goes against natural justice. It is grounds enough to reject these new clauses on the basis that the courts would punish a publication that has done no wrong, but that is not the only reason. Let us consider the impact of these new clauses on an editor. Faced with any criticism, of any article, by anyone with the means to go to court, a publication would risk having to pay costs, even if every single fact in a story was true and even if there was a strong public interest in publishing. Let us take, for example, Andrew Norfolk, the admirable journalist who uncovered the Rotherham child abuse scandal. He said that section 40 would have made it “near impossible” to do his job. He went on to say that it would have been “inconceivable” to run the front page story naming one of the abusers in a scandal that had ruined the lives of 1,400 innocent young people with disgusting crimes that had gone on for years and years and years. Without Andrew Norfolk’s story, the scandal would have gone on for years and years more.

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[Several hon. Members rose—]

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. Before I call the next speaker, I remind colleagues that this debate has to end at four o’clock and I know a lot of people want to speak.

[Mr John Whittingdale (Maldon) (Con)]

Thank you, Madam Deputy Speaker. I will take heed of your reminder about the time limit.

It is now over 10 years since the Culture, Media and Sport Committee, of which I was Chair at the time, first conducted an inquiry into phone hacking. We conducted several subsequent inquiries, which helped to bring out the truth about the extent of phone hacking and other illegal practices. Without the work of the Committee, those would not have been revealed, although I pay tribute to The Guardian’s brilliant piece of investigative journalism. A lot of this debate concerns investigative journalism.

I think all of us were shocked by the revelation of phone hacking and we were determined that action should be taken to prevent anything like that happening again. In the 10 years that have passed, however, a lot has changed. The News of the World closed down as a result of the revelations. There were prosecutions, with 10 journalists convicted for illegal practices, although it is worth bearing in mind that 57 were cleared.

Obviously, we had the Leveson inquiry. Even if it did not complete all that it originally wanted to complete because of the ongoing criminal cases, it still took over a year and cost £49 million. It produced a swathe of recommendations, although the royal charter was not one of them. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) had the brainchild of the royal charter and, accompanying that, sanctions in the Crime and Courts Act 2013 for newspapers that did not sign up to a regulator recognised under the royal charter.

Since that time, two major changes have taken place. When the royal charter was designed and the recognition panel was established, I do not think anybody in Parliament ever expected that not a single newspaper—certainly no national newspaper and virtually no local newspaper—would be willing to sign up to a regulator that applied for recognition under the royal charter. It was not just the usual whipping boys; the News International papers, the Daily Mail, the Daily Mirror. The Financial Times, The Guardian, The Independent and all the local newspapers refused. I have met the publications that have agreed to join IMPRESS, but they are micro-publishers. No major publisher was willing to go along with the royal charter. We originally invented the idea of sanctions with the view that one newspaper, or perhaps two, might stand out against the rest. We never intended to bring in a sanction that would punish, in what seems an incredibly unjust way, every single publisher. Their refusal to join is on a matter of principle, and we have to respect that.

What did happen was that they created a new regulator called IPSO, which has steadily evolved. To begin with, it was deficient in some ways. I had talks with IPSO and pointed out to it the areas where I felt that it needed to make changes, particularly through the introduction of an arbitration scheme, which was one of the key requirements under Leveson and which did not exist. However, IPSO has now made a lot of changes, including, as my right hon. Friend the Secretary of State pointed out, the inclusion of an arbitration scheme, which is compulsory for members who sign up to it. Those that are outside it are the local newspapers, against which virtually no complaint has ever been made, and which face the greatest peril from the economic situation that exists for newspapers.

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This amendment makes consequential amendments to the Data Protection (Charges and Information) Regulations 2018.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I will now suspend the House for no more than five minutes in order to make a decision about certification. The Division bells will be rung two minutes before the House resumes. Following certification, a Minister will move the appropriate consent motion, copies of which will be available in the Vote Office and will be distributed by Doorkeepers.

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[Madam Deputy Speaker (Dame Rosie Winterton)]

I can now inform the House that I have completed certification of the Bill, as required by the Standing Order. I have confirmed the view expressed in the Speaker’s provisional certificate issued on 8 May. Copies of the final certificate will be made available in the Vote Office and on the parliamentary website.

Under Standing Order No. 83M, a consent motion is therefore required for the Bill to proceed. Copies of the motion are available in the Vote Office and on the parliamentary website, and have been made available to Members in the Chamber. Does the Minister intend to move the consent motion?

[Margot James]

indicated assent.

The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).

[Dame Rosie Winterton in the Chair]

[The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I remind hon. Members that if there is a Division, only Members representing constituencies in England and Wales may vote. As the knife has fallen, there can be no debate.

Motion made, and Question put forthwith (Standing Order No. 83M(5)),

That the Committee consents to the following certified clauses of the Data Protection Bill [Lords]

Clauses certified under SO No. 83L(2) as relating exclusively to England and Wales and being within devolved legislative competence

Clause 190 of the Bill, as amended in Public Bill Committee (Bill 190).—(Margot James.)

Question agreed to.

The occupant of the Chair left the Chair to report the decision of the Committee (Standing Order No. 83M(6)).

The Deputy Speaker resumed the Chair; decision reported.

[Pete Wishart (Perth and North Perthshire) (SNP)]

On a point of order, Madam Deputy Speaker. I hope the House takes the time to consider very seriously the fact that once again English Members have not had the opportunity to debate the critical issues in clause 190, which has been certified. What can you do, Madam Deputy Speaker, to ensure that English Members in the English Parliament get the opportunity to debate those critical English-only issues?

[Madam Deputy Speaker (Dame Rosie Winterton)]

That is not a point of order.

Third Reading

Queen’s and Prince of Wales’s consent signified.