Data Protection Bill [HL] - Report (2nd Day)

– in the House of Lords at 3:37 pm on 13th December 2017.

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Relevant documents: 6th and 9th Reports from the Delegated Powers Committee

Schedule 1: Special categories of personal data and criminal convictions etc data

Amendment 31

Moved by Lord Moynihan

31: Schedule 1, page 124, line 14, at end insert—“( ) The references in sub-paragraph (1) to a body or association that is responsible for eliminating doping in sport are to be read as references to UK Anti-Doping (UKAD), its successor bodies or a body designated by the Secretary of State.( ) The Secretary of State must by regulations made by the affirmative resolution procedure specify—(a) the relationship between UKAD and other sporting bodies and associations, and (b) the powers and responsibilities of UKAD,under this paragraph.”

Photo of Lord Moynihan Lord Moynihan Conservative

My Lords, the objectives of Amendment 31, on doping in sport, are simple, and they build on considerable exchanges that have taken place at Second Reading and, more recently, in Committee. The first part of the amendment seeks to recognise the United Kingdom Anti-Doping agency—UKAD—and its successor bodies as the main body responsible for eliminating doping in sport in this country. The second part focuses on bodies which are not currently affiliated with or under the control and influence of UKAD and allows the Secretary of State to designate those bodies and to make regulations by the affirmative resolution procedure to outline the relationship between UKAD and other sporting bodies and the powers and responsibilities of UKAD.

I recently had the opportunity to discuss the amendment before the House with a range of individuals from the world of sport. At the most recent meeting, along with the noble Lord, Lord Stevenson, I had the opportunity to meet Emma Drake, a lead lawyer for sport on data protection; Tim Payton from the national governing bodies; Jonathan Taylor, the legal counsel to the United Kingdom Anti-Doping authority; and Alison Faiers from the ECB. They responded to us both a couple of days later by setting out possible changes to the current wording in the Bill and suggesting that UK Anti-Doping be named specifically in the Bill, while retaining flexibility in case of a successor body. Secondly, they said that included for the first time in primary legislation should be a reference to the role of the UK national anti-doping policy. This particularly emphasises the accountability of UKAD to Parliament and its responsibility for implementing and monitoring compliance with the policy. Thirdly, they suggested that we retain a clear reference to the fact that other sports governing bodies that are not subject to the UK national anti-doping policy should be able to rely on a condition in the clause itself, which is precisely what I sought to do before bringing this latest amendment to your Lordships’ House.

It is important to place on record the role of UKAD. It co-ordinates the UK intelligence-led, risk-based testing programme across more than 40 key sports in accordance with the international standard for testing and investigations. It is at the centre of our anti-doping programme in this country, and is very important in the management of highly sensitive personal data—this Bill is about the management of that personal data. When it comes to dealing with highly sensitive personal data, it should be recognised as the body responsible for anti-doping in this country. It already has a broad remit and can test any UK or non-UK athlete staying, training, residing, entering a competition or named as a member of a team participating in a competition at any level within the United Kingdom. Those athletes are eligible for testing as part of UKAD’s national anti-doping programme. UKAD is recognised by the Government and by the DCMS. It is paid for by us as taxpayers and undertakes a vital role in keeping sport clean in this country.

Meanwhile, the Bill is very important because of the context in which data falls as far as sports men and women. The data we are talking about is twofold for the success of an anti-doping policy. First is the whereabouts test. Every athlete who competes internationally and is part of the national register testing pool has to provide, every day, a 60-minute time slot to be tested without prior notice. That is a major request. Under employment law, you are entitled to go on holiday and your whereabouts not be known by your employer. In sport, the data required extends throughout every day of the year: wherever you are, you are duty-bound to notify your governing body or UKAD of your whereabouts. That seems to me a major issue of privacy. If we are asking athletes to give up that right, as we are in this Bill, to have an effective anti-doping policy—which I fully support—that should be taken very seriously indeed.

The second point is the principle of strict liability. All athletes are solely responsible for any banned substance, regardless of how it got there or whether or not it was the intention of an athlete to cheat. Under the anti-doping programme, you are effectively guilty until proven innocent. The fact that athletes have to adhere to those two requirements of data management makes it incumbent on this House to ensure that the situation under which someone could be tested, or under which UKAD can operate, is very clearly defined in the Bill. Regrettably, I do not believe that it is at the moment.

The issue is even more important because it is about the making and breaking of careers and reputations. Only today, in a different context internationally, we had news that the UCI is investigating Chris Froome’s case under its anti-doping rules. Here it was strict liability again. However, it was also a case where he did not break the rules in terms of performance enhancing substances. His highly sensitive records were made public; he was given a TUE—a therapeutic use exemption—for asthma, but the level at which he tested was above the level recognised by the UCI as acceptable. That is the test being applied. It is headline news. The fact that he is a part of that doping policy has meant that his career, his profile and potentially his future is under the microscope. That is because he signed up to that anti-doping policy. It is the same anti-doping policy that would occur here. Indeed, UKAD was heavily involved in another case earlier this year, as noble Lords will know, with regard to Bradley Wiggins and the famous jiffy bag in June 2011. It said it was hampered by a lack of accurate medical records being available for British cycling, yet his whole career and reputation is under the spotlight as a result of that incident.

The wording in the Bill is very broad; I argue that it is too broad. We need UKAD to provide some clarity and interpretation and the Secretary of State to come forward with subsequent secondary legislation to set out the powers and responsibilities of UKAD and its relationship with the governing bodies.

The Bill is also replete with a series of questions which, as it stands, are not answered—yet if UKAD was in a position of responsibility they could be answered. For example, what is a sport? Chess has been recognised as a sport by the International Olympic Committee since 2000. It is recognised as a sport in 24 out of the 28 member states of the European Union, the exceptions being the United Kingdom, Ireland, Belgium and Sweden—yet in Sweden it is likely that chess will be included from next year. The drugs associated with chess are, not surprisingly, memory boosters—drugs such as Ritalin and Adderall—and FIDE, the international federation responsible for chess, has accepted the World Anti-Doping Association code. Internationally it is recognised that doping in chess is a serious and important issue.

However, this country has not recognised chess as a sport and the net result, in the current wording of the Government’s proposals, is that it would not fall within the GDPR exemption and an athlete—or, in this case, a chess player—could simply say, “I do not want my information to be passed on. I am not going to give a urine sample. I am not going to give a biological passport. I am not going to talk about my whereabouts. I am claiming the right of derogation under the GDPR regime”. That surely cannot be what the Government intended.

Given the very broad definition of sport, there is absolutely no clarity. It is worth noting how broad the definition is. It is all-encompassing in the Bill at the moment. Scouting activities would fall within the remit set out. Under rule 9 of the scouting code, activities such as martial arts, horse riding and pony trekking are all subject to the governing body regulations, which include anti-doping regulations, and would therefore fall within the remit of the clause as currently written by the Government.

I want to help the Government. Let us try to clarify this and put a structure around it so that everyone involved in sport—who are being asked to concede fundamental freedoms and rights of personal information being kept private—know where they stand.

There is also the issue of schools. Some schools adopt the WADA code—which means that they would fall into the category we are talking about—others do not. Whether the sanctions imposed by a governing body apply to a certain school and not to another school is an important issue. It is the same with universities. We know that one of the biggest problems with doping in sport occurs in university gyms. Young people, not least rugby players—regrettably, because it is a great sport—often take the opportunity to dose up in school or university gyms in order to bulk out before going into professional sport. Again, they are captured by this wide-ranging clause, and if it was given this responsibility in the Bill, UKAD as the nationally funded body responsible for the anti-doping policy in this country, and highly respected internationally and nationally, would be in a position to clarify many of these issues.

I ask “What is a sport?” because there is no definition in the Bill. Yet when it comes to recognising a sport in the United Kingdom, the sports councils look at whether an activity meets the Council of Europe’s European Sports Charter 1993 definition of sport. That is a clear definition, but it is not defined in the Bill.

The Government’s wording is general and open to wide interpretation. It is my contention that the United Kingdom Anti-Doping agency should be named as the body accountable to Parliament through the DCMS for implementing and monitoring compliance throughout the UK and with the national anti-doping policy. In effect, from time to time it would set out its respective roles and responsibilities with other governing bodies. It should be recognised in this Bill as the lead body for eliminating doping in sport. It should stand separate from the DCMS to avoid conflicts of interest. It is particularly pertinent to note that of the intelligence testing that UKAD undertakes, only 3% of last year’s tests that proved positive came from the governing bodies, yet it is actually those bodies which know through their coaches the squads and what is going on in their sport. However, some of them may be conflicted while others may not take the issue sufficiently seriously. By placing UKAD at the heart of this and working closely with the sports governing bodies, we could move forward.

Of course there are bodies other than UKAD which have an important role to play in combating doping in UK sport. I note for example the Commonwealth Games Federation or the excellent work undertaken by the British Horseracing Authority, as well as international federations hosting sporting events in the UK, all of which are among them. There is clear provision in my amendment for the Secretary of State to nominate those bodies to continue their good work. It is a straightforward letter which is not subject to a consultation process. I have heard some sporting bodies argue that it is, but it is not at all. No doubt the Secretary of State would seek the advice of UKAD to see which bodies should be granted that status, but there is no question but that the British Horseracing Authority should continue its excellent work.

However, I have to say that the BHA policy poses some real challenges of its own at the moment. Its policy is also based on strict liability where animals are concerned, which in my view is questionable. For example, if a horse eats grass which has been urinated on by, as it walks through the field, a dog whose previous night’s dinner might have contained performance-enhancing substances, it is questionable whether the owner should be banned for doping his horse. Can animals be subject to strict liability? I doubt it and it highlights the complexity of this issue, which is why it is vital that we make provision for an expert body such as UKAD to have oversight of the management of data, which is what we are talking about, because the management of data is fundamentally central to the effectiveness of any anti-doping policy.

I have not received a letter from some of the sports bodies, although I understand that a number of noble Lords may have been lobbied by them, but I was kindly given a copy. In conclusion, I shall deal with the four issues on which they have written. I hope that that will be of assistance. The first point they make is that the Bill seeks to implement and will have a profound impact on sports governing bodies’ ability to carry out regulatory activities. I recognise and agree with that. The Bill should have a profound impact for the very reasons I have been arguing. We are talking about the management of an athlete’s sensitive personal information in the form of his medical records and the removal of that right under this exemption to the GDPR regime. We are all agreed on the need for an effective anti-doping policy, but we should not underestimate what we are asking of athletes in return for keeping to that.

Secondly, the sports governing bodies say that they have worked hard on Clause 23. As I have argued, I believe that the clause is poorly drafted and incredibly wide in scope. Given that we are withdrawing the protection afforded to an athlete regarding when and how their personal data is used, the law needs to be clear. For example, it covers every individual attending a sporting event, including children, St John Ambulance and stewards and, if any body has designated itself, for organising that event it can determine its own doping policy and decide to include all those people. Then there is the final phrase in the paragraph: “in sport generally”. I have no idea what the boundaries of that definition are.

I close by highlighting one final point on what the governing bodies have said. I am talking about a handful of them—the same ones that came to see us last week and which were in favour of the amendment. They seem to have made a significant 180-degree turn on one or two of these issues. I will deal finally with the view that the amendment risks breaching the UNESCO convention against doping in sport. The bodies say that, under the World Anti-Doping Code and UNESCO convention, the authority to carry out testing is clearly divided between national anti-doping organisations, international federations and major events organisations, and that the amendment risks a breach by inappropriately granting the Secretary of State powers where she does not have jurisdiction under the UK’s international commitments.

Nobody is proposing breaching international conventions to which we are a signatory, and there is nothing in the amendment to that effect. Indeed, all the points raised by the bodies have been addressed by my tabling the amendment before your Lordships’ House. I close by reinforcing my view that if we are to withdraw very important rights over personal data, medical information and details of blood and urine samples’ whereabouts from athletes, we should in return provide clarity in the Bill on the exact circumstances in which we are asking athletes to give up that information. I have done that simply by placing UKAD—the current leading body, funded by this country’s taxpayers—in the Bill to undertake that work and put its responsibilities and relationships with the governing bodies of sport into secondary legislation, which can come back to this House by affirmative resolution in due course. With those two minor changes to the Government’s original wording, I beg to move.

Photo of Baroness Billingham Baroness Billingham Labour 3:45 pm, 13th December 2017

My Lords, I rise to express my support for the amendment of the noble Lord, Lord Moynihan, and the work that it encompasses. I regret that my contribution to this powerful legislation has been so limited. My defence is that a boring cocktail of illnesses has kept me from that task, only concluding with a total knee replacement that has in fact proved a triumph. I have followed your Lordships’ debate from afar. I appreciate fully how much work has gone into the amendments and how crucial the debates have been—but no more excuses for my backsliding.

This issue is not straightforward. The widely held public view is that sport must be seen to be clean and cheating must be eliminated. Bodies such as the UK Anti-Doping Agency should be powerful and expert enough not only to detect the use of performance-enhancing drugs but to prohibit them. The general public are frustrated and appalled when yet more cheating comes to light. Fair play in sport is one of its underlying qualities; it is a prime reason for a love of sport and the impetus for all of us—parents, teachers, coaches and administrators—to encourage people to participate. That is all the more reason to strengthen the powers of anti-doping organisations.

The athlete, himself or herself, must be totally responsible for what is in their body at all times. They are guilty before being proved innocent but there must be a balance regarding genuine errors, and they must meet the whereabouts test. We have the support of governing bodies, which lead the fight against doping. The challenge is that their technology must outpace the damaging technologies and pharmaceutical products that threaten clean sport. The work of the anti-doping agencies must encompass all sport in the UK and cover all levels, from amateur to elite. Doctors who facilitate cheating should be criminalised and held responsible. Clearly, UKAD should have overall authority to determine whether an event run by non-UK bodies when operating in the UK is up to UK standards. It cannot be right that international sports organisers can hold events that fail to meet the minimum standards in the fight against cheating.

If the lead taken by the noble Lord, Lord Moynihan, is successfully followed and supported by the Government we have a real possibility of eliminating cheats. Not a day passes but another example of dubious practice is exposed. Today it is in cycling, yesterday in international criminal practice. This is, of course, an enormously complex issue. The more all factors are taken into consideration, the more we see the pitfalls, but we must take strength from the fact that public opinion is firmly with us, so the fight is really worth while. While congratulating the noble Lord and others fighting the cause, I end by not only thanking them but hoping that the force is with them.

Photo of Viscount Falkland Viscount Falkland Crossbench 4:00 pm, 13th December 2017

My Lords, this is the first time I have intervened on the Bill. I confess that I am one of those who has been lobbied, as suggested by the noble Lord, Lord Moynihan. I will speak about horseracing uniquely, which is different from the kind of doping to which the noble Lord addressed himself. Doping has of course gone on ever since the early 18th century, when horseracing as we know it started to grow into the complicated and well-run sport that it is today. We still have quality racing in Britain, but more importantly to this debate we have the reputation of having the best control by the bodies that deal with racing, particularly the horseracing association.

I have given the association’s concerns some thought over lunch. It said in a brief that was a little too complicated for me to present to your Lordships that it is afraid that if the regulations are brought into the legislation in the way suggested, the very detailed work that it does to prevent the spread and, indeed, to stop the existence of doping in horseracing faces a new hurdle. These days, as in the sports that the noble Lord addressed, all kinds of substances are developed genuinely for good purposes, but criminals are clever people. They get hold of the latest kind of substance that may make a horse go faster, or slower. It is quite easy to stop a horse going very quickly—you just give it a bucket of water—but to make it go faster is a more complicated business.

Maintaining the cleanness of the sport in terms of corruption—it is all about money and betting—is becoming even more complicated because the new technologies and the moving of betting online is complicating it enormously, away from the old days when people went round in slouch hats with a man they employed to administer a substance. The problem the governing body faces is the uncertainty. It is following leads and information all the time—racing is all about information, whichever way you look at it—which is essential for it to get a step ahead of the game as far as the criminals are concerned. I understand from the association’s brief that it fears that, admirable though this Bill may be—I have sat through a lot of it and think it is a good Bill overall—we are creating a hurdle which will make the bodies go by the book. Going by the book—if I may use that expression in this field—would be a slow business. The bodies would be prevented doing the things which they normally do in jumping straightaway into a position where they can prevent whatever doping they have been informed is about, and they would fear infringing what is in the Bill in terms of the duties of the Secretary of State. There would be a need to consult the Secretary of State and the bodies fear the time that that would take. It would be useful if the Minister could give me some idea of what procedures would relate to horseracing and how quickly the bodies could get a line to the Secretary of State to get permission to move more quickly and cut out some of the actions and investigations that they would have to undertake, so that the bird had not flown by the time one got to dealing with the problem at hand. That is the bodies’ main concern as I understood it through my quick lunch—they have a concern in relation to a later amendment which is more complicated, but this one is quite simple.

A lot of hard work goes into this and a lot of success is achieved through the controlling bodies of all sports. That is particularly true of the horseracing authority, because it is essential that one keeps criminals from being able to affect the results of horseraces through doping. I hope that the Minister can help me on that, and maybe they will ask me again.

Photo of Lord Maxton Lord Maxton Labour

My Lords, I shall not follow the noble Viscount, Lord Falkland, down the road of horseracing because I have a confession to make, which is that I have never been in a betting shop in my life as far as I know—unless I was taken in as a very young child. I have three points to make. The first is the question of what sport is, because it is vital to the amendment—which I will be supporting. Darts and snooker are considered sports. They are therefore covered by any legislation relating to sport. You have only to watch “Strictly Come Dancing”, however, to know that a lot more physical activity is involved in dancing than in either darts or snooker, yet dancing is not covered by this legislation because it is not considered a sport.

Secondly, there are differences in the drugs taken by snooker players, for instance. A snooker player would be banned if he took a beta blocker, because a beta blocker slows the heart down, slows the pulse down and slows everything down, but if any other athlete took it, it might be for medical purposes—although it would not be to his benefit or advantage to do so.

Thirdly, I gather that under this country’s present doping laws recreational drugs are banned by all sporting bodies and the UK sports drugs authority. In some countries, however, it is legal to take, for instance, cannabis—to be honest, I am one of those who think it should be legal in this country as well; it should be part and parcel of the legal system that we allow people to take cannabis. But it would be banned. If it is illegal—this question may be one for the noble Lord, Lord Moynihan, directly—and an athlete comes to this country to take part in an international event, be it football or whatever, from a country where it is legal to take cannabis, and if he has taken cannabis in the last 24 hours and it shows up in a drugs test, will he be banned from taking part in that event? Some countries allow it. Why are recreational drugs part of that authority anyway? It is a police matter in this country, not a matter for sporting bodies, therefore we ought to take recreational drugs out of the equation altogether.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

My Lords, the Government must be quaking in their shoes whenever a Back-Bencher offers to come to their help. I looked across at the Dispatch Box when I heard the noble Lord, Lord Moynihan, make that offer and I saw a definite quiver come over the Minister’s face. Clearly, we are in for something rather interesting. We were entertained by the noble Viscount, Lord Falkland, with his worries about the BHA, but he said he thought that it is really quite simple at the end of the day—we need to keep the money out and sort out the betting influences that are affecting all our sports. He is absolutely right. The public have come to the end of their tether and it is time that we got this sorted: we have to keep sport clean and eliminate cheating. The data is key to this, as the noble Lord, Lord Moynihan, said.

We expect a great deal of our athletes in terms of their whereabouts and their strict liability, so we have to make sure that the systems under which they operate are fair, properly organised and regulated. In short, we have such high stakes in this that we have to be sure that we up our game—I am sorry about the puns. We should be clearer than we are at the moment about who has responsibility for what and how it is operated, and that is what this amendment is about. DCMS needs a stronger NDPB, in the form of UKAD or a successor body, and there needs to be an authority exercised with care and consideration as to how the rules will apply and to whom they apply. All these definitional points, all the concern about where it goes, are tied up in that set of constructs, which is what this amendment deals with. I think it is very powerful.

If noble Lords look back at the way in which a state was able to influence the way that the drug-testing system operated in the winter Olympic Games in Russia, they will understand how this thing has got to a new level of concern. We must have appropriate safeguards and ways of operating in place to insulate those who are trying to do the right thing from the charge that they are involved too closely. The public will stand for no less. I recommend this amendment very strongly and we will support it should it be necessary to take it to a vote. I hope that that will not be necessary, because as the noble Lord, Lord Moynihan, said, this is an area of such importance that the right thing to do would surely be for the Government to accept this amendment today and bring it back at Third Reading with a proper wording and proper consideration that will reassure any who still doubt it. In the interim, we will support it if necessary.

Photo of Lord Clement-Jones Lord Clement-Jones Chair, Artificial Intelligence Committee

My Lords, as ever the noble Lord, Lord Moynihan, made his case extremely well. We on these Benches share his objectives and, indeed, most of the objectives of the noble Lord, Lord Stevenson, around clean sport, particularly putting UKAD on a statutory footing and having a proper framework around the powers in the Bill.

I know that the noble Lord, Lord Moynihan, feels that these need a proper definition and control. However, despite the noble Lord’s best efforts this amendment is not the finished article. Sadly, there are still discussions taking place. Noble Lords have had a great deal of material from governing bodies, including the England and Wales Cricket Board, the Rugby Football Union, the British Horseracing Authority and the Sport and Recreation Alliance, which by itself represents some 320 organisations.

Further discussions need to take place so that we get to an agreed position. I feel very uncomfortable at this point. All those governing bodies may be speaking with different voices, as the noble Lord, Lord Moynihan, suggests, and he has entered discussion with them in good faith, but other voices have come to us saying that they are not yet able to accept what he has put forward. There is still work to be done. I very much hope that the Minister will take on board the fact that many of us around the House, particularly on these Benches, want those conversations to continue and an agreed amendment to be brought forth at Third Reading.

The big problem for those of us on the Opposition Benches is that Third Reading procedure means that we cannot, without the Minister’s say-so, bring forward an amendment. Nor can the noble Lord, Lord Moynihan, nor the noble Lord, Lord Stevenson, without the Minister’s consent. If the Minister is unable to give assurances of the right kind, we will have to vote for the amendment to keep the conversation alive, despite the fact that it is not completely to our taste. I hope that those organisations outside fully understand the position that many of us are in. We would much prefer to have an agreed amendment that the Minister could negotiate with the sporting bodies and the noble Lord, Lord Moynihan, but if that is not possible, we will have to vote, and his amendment will no doubt go to the other place, where discussions will take place in due course.

Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport 4:15 pm, 13th December 2017

My Lords, I am not quaking in my boots when addressing an amendment from my noble friend, first, because he is a helpful man and, secondly, because I am getting quite used to it, to be quite honest, particularly after the Digital Economy Bill.

As we heard, my noble friend’s amendment would restrict the provision in the Bill that allows anti-doping bodies to process sensitive personal data without consent to just UK Anti-Doping. It would permit other bodies to process sensitive data only if allowed by the Secretary of State. This House agrees, I think, how important sport is and that it can only continue to be successful if it is, and is seen to be, clean. It should therefore come as no surprise when I say that the Government remain fully committed to combating doping and protecting the integrity of sport. We are at one with the noble Baroness, Lady Billingham, on that.

At the moment, a large number of organisations, both domestic and international, work to prevent and eliminate doping in sport in this country in accordance with agreed international standards. UKAD, as the UK’s national anti-doping organisation, plays a vital role. But we must recognise that other bodies, some of which have been mentioned, also have important roles to play, including in particular sports’ national governing bodies. The amendment would see UKAD as the only body with automatic responsibility for processing sensitive data for the purposes of preventing doping in the UK. Other bodies would have a role only if named by the secretary of state.

I am not convinced that this is a positive change for a number of reasons. First, it is not immediately clear to me why such an amendment is needed. UKAD’s role, and that of other sporting bodies, is set out in the national anti-doping policy, and this arrangement is largely seen to be effective, not just here in the UK but internationally. But we can never be complacent, and that is why my honourable friend the Minister for Sport, Tracey Crouch, has already commissioned a review of UKAD. That review is looking closely at UKAD’s functions, efficiency and effectiveness and has consulted widely. The findings of this review will be published early next year and will inform the revision of the UK national anti-doping policy, which will also take account of the recently published review of the criminalisation of doping. As part of this policy revision process, the Government will consult all relevant stakeholders, and will no doubt welcome discussions with my noble friend Lord Moynihan.

In addition, the arrangement outlined in my noble friend’s amendment would appear to present a number of risks. As he mentioned, the World Anti-Doping Code and the UNESCO convention set a clear framework that allows major events organisers and international federations to conduct their own anti-doping activities. Their ability to test cannot, without risking a breach of the convention, be contingent on them having obtained prior authorisation by a national Government.

Sports bodies change regularly as new sports are recognised and new bodies gain funding and manage competitions. A new round of designations would be required every time a new sporting body came into being or organised competitions or an old body changed its name. Under the system proposed by my noble friend, even a short delay in doing so could allow a drugs cheat to escape sanction by challenging the validity of the data processing undertaken by a sports body weeks, months or even years prior. That is not least because the Secretary of State’s decision to designate a body would itself be subject to judicial review. This could turn a relatively straightforward process of designation into a lengthy process of review, consultation and litigation. Similarly, if international bodies wanted to hold competitions in this country, they would, on the face of it, need to be officially designated by the Secretary of State. In a competitive marketplace, this could discourage organisers of major events from bringing their events to the UK.

To summarise, the Government believe that my noble friend’s amendment will put the UK’s status as a leading destination for clean sport at risk. It will create uncertainty in the sporting world and will be out of step with the recognised international framework that is already in place. It is widely understood that UKAD is the recognised body in the UK with responsibility for enforcing anti-doping rules. But the Bill must not be used as a tool to limit interventions by internationally recognised sporting bodies, such as the England and Wales Cricket Board, the Football Association and the Rugby Football Union. They, like UKAD, should be allowed to set and enforce anti-doping rules in sports. The fact that these bodies are not governed entirely by UKAD’s rules does not make their need to process data without consent for anti-doping purposes any less important. We are clear on that, the World Anti-Doping Code is clear on that, and the bodies themselves are clear on that.

Indeed, I have a statement from four of our leading sports bodies: the Football Association, the Rugby Football Union, the England and Wales Cricket Board, and the British Horseracing Authority. They are not speaking with different voices. This is a joint quote, which they have authorised me to announce. They say:

“We welcome further discussion with all parties on this issue but do not believe that this Amendment, that has not been discussed with or subject to any consultation with our organisations, is the right way to proceed today”.

In answer to the noble Viscount, Lord Falkland, who asked about the horseracing authority, I am afraid he should direct his question to my noble friend Lord Moynihan, because it is his amendment that would change the current system. Therefore, while I understand the desire of my noble friend to assist in the fight against doping, which we all support, I do not believe that the Bill is the proper vehicle to achieve it; nor do I believe that my noble friend’s amendment would in fact achieve it.

Let me be clear: if my noble friend or the noble Lord, Lord Stevenson, want to keep talking about anti-doping in general, I am very happy to do so, as is my honourable friend the Minister for Sport; I have already said that. But the Government have spent a great deal of time working with UKAD and sports bodies to design paragraph 23 of Schedule 1, and I have heard nothing in the debates in Committee and today that would suggest that we should alter our view before the review of UKAD is complete. On that basis, I urge my noble friend to withdraw his amendment.

Photo of Lord Moynihan Lord Moynihan Conservative

My Lords, I am grateful to all noble Lords who have contributed. I will respond to the Minister first. I was disappointed that he did not respond to the suggestion of the noble Lord, Lord Clement-Jones, which I also touched on, namely, that it was important, if at all possible, to take away this amendment and consider it in greater detail so that the Government could bring it back at Third Reading. The Government have decided not to do so, and in so doing they have argued the following points.

The first was that there has been inadequate consultation—for example, no discussion between the BHA and myself. If I may respond to the noble Viscount, Lord Falkland, I had a conference call with, I think, four BHA people last Friday to discuss in detail the consequences of the proposed amendment. It was a constructive and helpful discussion. It was very important to them that they did not come under the umbrella of UKAD, and they would not. Amendment 31 says very specifically that the references are,

“to be read as references to … UKAD … , its successor bodies or a body designated by the Secretary of State”.

They asked me whether that would be a cumbersome process, and I said, “Certainly not”. The Secretary of State could respond to a letter pretty much immediately by saying, “Continue the good work that you’re doing”. That would be absolutely fine under the amendments I have tabled to Schedule 1.

This would apply to any organising group that exercises authority in anti-doping in this country outside UKAD, which covers the wide majority. Indeed, UKAD can test any athlete in this country, if it so wishes, at any level of competition. But there are organisations which will operate outside UKAD, for example the international federations and the International Olympic Committee. The other organisations which the noble Lord mentioned operate within UKAD in any event. Organisations such as the Football Association and the Rugby Football Union have a relationship with it to continue its good work, not least because those are Olympic sports, so they are covered in any event by the phrase,

“a body designated by the Secretary of State”.

I want further to assist my noble friend the Minister by suggesting that, instead of simply leaving it at that, every single point that he made could be covered by the regulations that he is being asked to bring forward under the Bill. There would be no uncertainty; there would be complete clarity, and we would have the opportunity to address those points in detail prior to that secondary legislation coming forward.

Why was it important to amend a general catch-all clause on sport to deal with these issues? It was important so that the BHA knew its position and could continue the good work with minimum bureaucracy, simply by a letter recognising that it continues the good work. I have heard nobody—not from the Bill team, which I met, not the policy advisers from DCMS and not the BHA, which I had a long conference call with last Friday—mention that there is anybody who seeks to change the way in which the BHA does excellent work in this area. It would simply be recognised on the face of the secondary legislation and so it should be—

Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

Does my noble friend not accept, then, that if the situation is exactly the same as now, he is proposing a new process which will possibly be subject to litigation and achieve exactly the same status that we have today?

Photo of Lord Moynihan Lord Moynihan Conservative

First, there is no evidence whatever that it is subject to litigation. If the Secretary of State

Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

I am sorry to interrupt again. Of course there has not been any litigation because the system that my noble friend proposes has not been put in place.

Photo of Lord Moynihan Lord Moynihan Conservative

But there are no grounds for litigation. If the BHA is doing good work in anti-doping then, in the context of this paragraph, all that is being done is for that to be recognised within the legislation and by the Secretary of State in designating the BHA to continue its good work. Who would wish to litigate on that? Nobody is changing any relationship between the BHA, and those who work within it, and the excellent anti-doping policy that it currently runs. I am sure the Government would not want to change that.

The reason why this should be on the face of the Bill and in the secondary legislation—the regulations—is that this is of serious importance. We are asking athletes to give up a lot of personal data, and we should protect them when giving up personal data. It is important and right for an anti-doping policy that they should do so, but its importance should be recognised and my noble friend the Minister did not even mention it in his response. It is about the data management.

I conclude by saying simply this, and I will happily give way to my noble friend the Minister. If he is prepared, as I hope he is, to follow the initiative of the noble Lord, Lord Clement-Jones, which I fully support, on improving the wording of the amendment, I stand absolutely ready to find consensus with all governing bodies, the Government, the Bill team and everybody else who is interested in the subject, including all Members of your Lordships’ House, in order to find an improved amendment. I think the amendment works perfectly satisfactorily, and I have just tried to explain that to my noble friend and the House, but I am sure it could be improved by further discussions. Is my noble friend the Minister willing to take it away and bring it back at Third Reading? If he is, I will happily give way.

Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

I have to be very clear about what we are doing, particularly as this is the first group on our first day on Report. To be absolutely clear, I am not content to return to this issue at Third Reading of the Data Protection Bill because we have heard nothing that would suggest to us that paragraph 23 would benefit from further consideration at this time. I have to repeat that the wording on the face of the Bill was drawn up—this is a quote from the governing bodies that I mentioned—

“in close consultation with the sports governing bodies and the Sport and Recreation Alliance and we support the original wording as the right way forward”.

Photo of Lord Moynihan Lord Moynihan Conservative

I hear what the Minister said. We have had many discussions with different members of governing bodies and others who have argued that this provision could be improved. Indeed, the noble Lord, Lord Stevenson, and I sat opposite UKAD and governing bodies last Monday, so what the right hand in some of these governing bodies is doing is clearly not what the left hand is doing. I think this amendment is a significant improvement that protects the rights of individual athletes. That is what we should be doing in this Bill because it is about data management. Regretfully, because I hoped that the Minister would take this away and come back with a consensus on something better, I wish to test the opinion of the House.

Ayes 229, Noes 232.

Division number 1

See full list of votes (From The Public Whip)

Content

Not-content

Amendment 31 disagreed.

Amendment 32

Moved by Lord Ashton of Hyde

32: Schedule 1, page 125, line 21, after “court” insert “or tribunal”

Amendment 32 agreed.

Amendment 33

Moved by Lord Stevenson of Balmacara

33: Schedule 1, page 126, line 21, at end insert—“Safeguarding of children and vulnerable adults32A(1) This condition is met if the processing— (a) is necessary for the exercise of a safeguarding activity,(b) is carried out without the consent of the data subject so as not to prejudice the exercise of that activity, and(c) is carried out in compliance with any guidance issued under statute by a Minister of the Crown or a Scottish Minister or Welsh Minister as the case may be.(2) In this paragraph, “safeguarding activity” means an activity designed to—(a) protect children and vulnerable or protected adults from maltreatment,(b) prevent the impairment of children’s, or vulnerable or protected adults’, health or development,(c) ensure that children grow up in circumstances consistent with the provision of safe and effective care, or(d) enable children and vulnerable or protected adults to have the best outcomes. (3) This paragraph applies to a safeguarding activity carried out whether as part of a statutory function or otherwise by any holder of a public office, institution, authority, church or religious congregation, company, organisation, body, or association, whether or not having corporate status.(4) This paragraph does not apply to the activities of individuals acting in a private capacity.(5) In this paragraph—“child” means a person who has not attained the age of 18;“vulnerable adult” has the same meaning as in paragraph 7 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006;“protected adult” has the same meaning as in the Protection of Vulnerable Groups (Scotland) Act 2007.”

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

My Lords, I intend to be brief, but not because this is a minor matter—quite the reverse. This is one of the biggest concerns that we should have about how we engage through the public view on the issues that affect many of our citizens. I am talking particularly here about safeguarding, especially in relation to sport, although it also has wider concerns, wherever an adult has responsibility for a child.

The public concern has mostly focused on issues such as football and swimming in recent months and the last few years, but there are wider concerns that have been dealt with under various inquiries, and we await the results. The narrow issue relating to this Bill is that those individuals or bodies that have a protective function of safeguarding children or, indeed, vulnerable adults, and need to process sensitive data, even though they have no legal obligation to do it and have no statutory function may be an issue that the Government wish to return to. There is no doubt that UK Anti-Doping has the powers that are necessary in sports. But when members of the public and their children are not being sufficiently looked after, extra vigilance must be taken, and we must ensure that the Bill in no way affects that.

I have tabled this amendment, sent to us by a number of bodies involved in sport, but there are other groups outside the sporting area with interests here. The Government are currently discussing these issues and hoping to come to a conclusion shortly. On that basis, I hope that the Minister can give us some indication of the progress that has been made here and, if he can, some sense of the timescale in which the Government will act. I beg to move.

Photo of Lord Ashton of Hyde Lord Ashton of Hyde The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

My Lords, I will be brief. Amendment 33 seeks to introduce a condition permitting the processing of special categories of personal data where it is necessary for the purposes of safeguarding children or vulnerable adults. The Government take the issue of safeguarding extremely seriously and recognise the need for the Bill to provide certainty to organisations with safeguarding responsibilities, so I thank the noble Lord, Lord Stevenson, for raising this issue.

Organisations in all sectors wish to ensure that they have a lawful basis when they process special categories of data for safeguarding purposes. In many—maybe even all—circumstances, organisations will be able to rely on existing conditions under the Bill: for example, where processing is necessary for the purposes of preventing or detecting unlawful acts or where the processing is necessary for the exercise of functions under legislation or under a rule of law. However, I recognise that there is an argument for having a specific safeguarding condition to put the issue beyond doubt.

This is an issue which requires careful consideration and noble Lords may be assured that my department is actively working across government and with stakeholders in the voluntary and private sectors to consider the issue. We must be mindful, for example, of the broader implications of defining safeguarding and vulnerability within data protection law. Inclusion of such definitions within the Bill could have unforeseen consequences for other legislation which uses the same, or similar, terminology. As such, I can assure noble Lords that the Government are sympathetic to the objective of this amendment. However, given the importance of this issue and the potential impacts both within and beyond data protection law, we are sure that further consideration is required before any amendment can be brought forward. I can assure noble Lords that we will continue to examine this issue urgently. While it will not be possible to conclude our consideration in time for Third Reading, I am confident of doing so in time for Committee stage in the Commons. On the understanding that we will return to the issue of safeguarding in the Commons, I hope that the noble Lord feels able to withdraw his amendment this evening.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

I am grateful to the Minister for giving such a precise response to this, not only on the substance, recognising the issue and confirming that it needs to be put beyond doubt that the powers will exist, but giving us the assurance that this matter will be brought back in the Commons, which is wonderful. I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Clause 13: Automated decision-making authorised by law: safeguards

Amendment 34

Moved by Lord Clement-Jones

34: Clause 13, page 7, line 20, at end insert “or a group sharing a protected characteristic, within the meaning of the Equality Act 2010, to which the data subject belongs”

Photo of Lord Clement-Jones Lord Clement-Jones Chair, Artificial Intelligence Committee

My Lords, I will speak also to a number of other amendments to Clause 13 in this group. I regret that the rules of drafting on Report mean that I was not able to produce a consolidated clause; it is rather bitty in the way it is presented in the amendments, but I very much hope that the Minister will be able to interpret the bits as eventually forming a perfectly-formed whole and a much preferable alternative Clause 13. In addition to those amendments I will speak to Amendment 41, which constitutes a new clause after Clause 13.

Clause 13 concerns the prohibition and exemptions around significant solely automated decisions. However, it can be confusing. There are three grounds on which such decisions are permitted under the GDPR: to enter or to perform a contract, to give explicit consent or to be authorised under UK law. Clause 13 concerns only the safeguards for the last category. Therefore, our amended version of Clause 13 has the following important four aims.

First, it clarifies that an individual’s ability to claim that a decision had a significant effect on them—a prerequisite for triggering any of the protections that the GDPR has to offer relating to automated decision-making—can be grounded in a significant effect on a protected group under the Equality Act 2010. The Equality Act is a strong piece of legislation, but it contains no information rights for individuals to investigate suspicions of machine bias or illegal discrimination. Given that the Information Commissioner will already be overloaded with work, given the changes accompanying the GDPR and the speed of technological development, this is a simple and crucial check and balance that will strengthen enforcement of not just data protection but many UK laws.

Secondly, the amendments further clarify that in order to claim that a decision was not solely automated—and therefore benefiting from none of this clause’s protections—there must be “meaningful human input”. The Minister argued in Committee that this is,

“precisely the meaning that that phrase already has”.—[Official Report, 13/11/17; col. 1869.]

Unfortunately, we have reason for concern because, in respect of identical wording in the 1995 data protection directive, German courts, for instance, have previously read “solely” in a restricted, narrow sense. Therefore, having such clarification in the Bill would ensure that the Minister’s understanding of the protection afforded to data subjects is the protection they will receive. This clarification is in line with the article 29 working party guidance—I recognise that the Minister corresponded with me on the subject of article 29 guidance—but it takes us closer to an adequacy agreement if one is sought upon leaving the EU.

Thirdly, the Explanatory Notes in paragraph 115 promise a safeguard that is not found in any of the articles of the GDPR, nor the safeguards laid out by the Government: a right to,

“an explanation of the decision reached after an assessment”.

The cause of this is that its position is in a non-binding recital, and there is a contradiction between the recitals and the main text. This is easily rectified for the decisions authorised by law, as the purpose of Clause 13 is to specify safeguards for these particularly impactful and largely public sector decisions.

It is included as well to indicate—in a very similar way to a recent French law on exactly the same issue—what such an explanation should provide to be useful. These explanations are possible even with black box algorithms. I have tabled an additional simple amendment to include this safeguard explicitly for automated decisions authorised by consent or contract, not just those authorised by law.

Fourthly, in line with the huge successes of open data and recommendation 4 of the 2013 Macpherson review into the quality assurance of business-critical analytical models in government, it is undoubtedly good practice to publish details of the models being used in the public sector. Clause 13 as reconstituted by these amendments would propose that where models are used solely or partially as the basis for significant decisions, with the grounds for processing drawing on UK law rather than on consent or contract, these models must have relevant metadata about them published, as well as information where applicable on how they meet the Equality Act’s public sector equality duty. This duty does not always require documentation. That is important, as it is clear that, by virtue of their significance, these systems are consequential enough to justify documentation. It also introduces a requirement for controllers that argue that their significant decisions are only partially automated, and therefore fall outside these protections, to publish information and analysis on how they prevent overreliance.

These changes to Clause 13 are part of the positioning of the UK as the world leader in trustworthy AI systems. Public procurement has typically been a lever to drive new ethical markets; an example is how the UK’s BREEAM green building standard has been built into tenders and spurred a market and national niche in environmentally friendly construction. Explainability in AI is a cutting-edge research field, with recent research calls on it from the EPSRC and DARPA, and it was discussed keenly in the recent Hall and Pesenti government AI review, as well as in the Royal Society/British Academy data stewardship report. Explainability of complex systems that centre on particular data subjects—in other words, outcomes—rather than trying to explain the whole of an algorithm in one go is perfectly doable. We want economies around the world to turn to us when they want a reliable, trustworthy and ethical system of assessing automated systems.

These grey areas are real and the outcome in the courts is far from settled. As this Bill passes through our hands, we have a real opportunity to give its protections certainty and renewed vigour.

Amendment 41 attempts to incorporate the end of recital 71 into the Bill. I am sure that the noble Lord is highly familiar with this recital, which deals with automated decision-making. It begins:

“The data subject should have the right not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing”, and so on and so forth. The final sentence of the recital says:

“Such measure should not concern a child”.

What is the Government’s answer to the lack of anything in the Bill that reflects that sentence as regards automated decision-making? Clause 13 as amended is intended to fill that gap and I very much hope that the Minister will see it as an attractive and practical way of improving the Bill. I beg to move.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 5:00 pm, 13th December 2017

My Lords, I support Amendment 34 and will speak to Amendments 35, 93, 100, 101 and 102. I retabled these amendments because I think I did not make myself clear in Committee and some of the Ministers’ replies seemed confused. It was pacifying to be soothed in that way but I still have a problem. The noble Lord, Lord Ashton, said:

“All decisions relating to the processing of personal data engage an individual’s human rights, so it would not be appropriate to exclude automated decisions on this basis”.—[Official Report, 13/11/17; col. 1871.]

My point was that there is confusion between the gathering of evidence, the processing and decision-making. My amendments do nothing to inhibit automated data processing or seek to move us back to handwritten records. Automated data processing is unaffected by my amendments, which focus on decisions based on data, however the data is processed. Data could be gathered, processed and analysed completely automatically with no human involvement—a computer could even generate a recommended decision—but where human rights are engaged, the final decision must be made by a human being.

There was similar confusion in the replies of the noble Baroness, Lady Williams, in regard to law enforcement and intelligence service decisions. She said that,

“the unintended consequences of this could be very damaging. For example, any intelligence work by the intelligence services relating to an individual would almost certainly engage the right to respect for private life. The effect of the amendment on Part 4 would therefore prevent the intelligence services taking any further action based on automated processing, even if that further action was necessary, proportionate, authorised under the law and fully compliant with the Human Rights Act”.—[Official Report, 15/11/17; col. 2073.]

Again, there is confusion between the processing, gathering of data and making the decision where human rights are engaged.

I repeat that my amendments allow for data to be processed automatically: they do not allow for a computer to make a decision contrary to someone’s human rights. Decision-makers can be supported by automated processing but the ultimate decisions must be made by a human being. We have to have this vital safeguard for human rights. After all the automated processing has been carried out, a human has to decide whether or not it is a reasonable decision to proceed. In this way we know where the decision lay and where the responsibility lies. No one can ever say, “We messed up your human rights. We interfered with your human rights and it is the computer’s fault”.

I am grateful to Liberty for drafting the amendments I have tabled and I hope that I have explained them fully and rather better than in Committee. I look forward to the Ministers’ replies. I feel strongly about this issue. These words have to be in the Bill so that it is absolutely clear that human rights are protected.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I support my noble friend’s amendments. The points that he made apply almost entirely to Amendments 91, 92 and 94, which relate to later parts of the Bill, including particularly the phraseology “solely” and in Amendment 94 “solely” or “partially”.

I am pleased that the noble Baroness, Lady Jones, decided to retable her amendments. What she said can be summed up as, “Human rights, so human decision”. Human beings will ensure transparency and accountability in a way that machines simply do not. The Minister smiled when the noble Baroness said that she was not sure whether she was clear on the last occasion. I rather wish that I could ask her to give us the reassurances and concessions that that smile might have indicated, but I do not know.

These issues are extremely important. I was thinking about them over the weekend and, although it sounds patronising, the Government are entirely correct to ensure that human rights are engaged in these subjects. Given how central human rights are, they cannot be thought of as an occasional peripheral, particularly not as regards law enforcement and security issues. I have come full circle to thinking that the protection of human rights should be spelled out at the start of the Bill, which would take us back to our debate on Monday about an introductory clause covering the protection of a subject where the right is not absolute because of the criteria of necessity and proportionality. I think that that should be made clear in the Bill and it would put what the noble Baroness is seeking to achieve in her amendments in the right context. I support her in this.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

My Lords, we have Amendment 37 tabled in my name and that of my noble friend Lord Kennedy in this group. The focus of our amendment is to tease out from the Dispatch Box a sense of what is meant by “meaningful” in the context of the discussions we have already had about how organisations might disclose details of algorithms used in profiling and data-driven decision systems, to meet the obligation in the GDPR to provide meaningful information about what has been going on in that space. It will be difficult to do this because “meaningful” can involve many words and obligations and is, I think, a slightly slippery concept. It will probably exercise the noble and learned Lord, Lord Mackay of Clashfern, in its imprecision—but do not blame us, mate; it is the GDPR, which we are not allowed to discuss. However, I think that the Minister can help us here by providing a bit more information.

We have suggested that a way of dealing with this would be to look at how the information is used and make it a requirement that it should,

“be sufficient to enable the data subject to assess whether the profiling will be beneficial or harmful to their interests”.

That may not be sufficiently strict legal language but, if it is an important distinction, it would help to get us to the point at which the Minister might say that she will bring back improved wording in an amendment at Third Reading.

The real issue which is not discussed here is the question of whether we can access the algorithms themselves. The problem, and the reason for the solution to that problem lying in terms of the test of how it works in practice, is that it is not sufficient just to have simple information about the actual mathematics of the algorithm because that in itself would not give us enough information. What we need, for those in a particular part of the population cohort, is knowledge of the consequences of being in one category or another and how that is weighed up by those carrying out the processing. This covers all the ways in which decisions are made on credit, on our purchases and how we are advertised to. It is happening now, so the sooner we can get the information, the better. I look forward to hearing the Minister’s comments when she comes to respond.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I start by thanking noble Lords for their amendments, which bring us back to the important issues around the use of automated processing in what is an increasingly digital world. I apologise if my smile was misleading, I was just very pleased to see the noble Baroness in her place; it did not indicate anything other than that.

The range in which automated processing is applied includes everything from suggested views on YouTube to quotes for home insurance and beyond. In considering these amendments it is important to bear in mind that automated decision-making can bring benefits to data subjects, so we should not view these provisions simply through the prism of threats to data subjects’ rights. The Government are conscious of the need to ensure that stringent provisions are in place to regulate appropriately decisions based solely on automated processing. We have included in the Bill the necessary safeguards such as the right to be informed of automated processing as soon as possible, along with the right to challenge an automated decision made by a data controller or processor. We have considered the amendments proposed by noble Lords and believe that Clauses 13, 43, 48, 94, 95, 111 and 189 provide sufficient safeguards to protect data subjects of all ages—adults as well as children.

Let me respond first to Amendments 34 and 92. They seek to insert into Parts 2 and 3 a definition of “significant decision” as including a decision that has a legal or similar effect for the data subject or a group sharing one of the nine protected characteristics under the Equality Act 2010 to which the data subject belongs. Of course, all types of discrimination, including discriminatory profiling via the use of algorithms and automated processing, endanger an individual’s rights and liberties. However, we note that the Equality Act already provides for safeguards for individuals to ensure that they are not discriminated against on the basis of a protected characteristic. In addition, recital 71 of the GDPR states that data controllers must ensure that they use appropriate mathematical or statistical procedures to ensure that factors that result in inaccuracies are minimised, and to prevent discriminatory effects on individuals based on their racial origin or ethnicity, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation. We therefore do not believe that a further provision is required.

Amendments 35, 93 and 100 are designed to prevent any automated decision being taken if the decision engages the rights of the data subject under the Human Rights Act. The GDPR and the Bill permit automated decision-making where it is authorised by law, subject to the safeguards provided. The noble Baroness, and Liberty, in its briefing, argued both that we should lower the threshold of types of decisions to which the prohibition on automated decision-making applies to include a broader range of decisions—namely those that engage the convention rights—and that we have muddled types of decisions and processing in resisting the amendments in Committee. I assure the noble Baroness that this is not the case. Clause 13 merely replicates the threshold in article 22 of the GDPR. Similarly, in Part 3, Clauses 47 and 48 faithfully give effect to article 11 of the Law Enforcement Directive. We believe that these amendments would strike the wrong balance because they would mean that practically all decisions would be caught by the prohibition, even if authorised by law. As I have indicated, the safeguards in the Bill will apply where significant decisions are based on automated processing.

It may assist if I provide a practical example of the effect of these amendments in the context of Part 4. The intelligence services may use automated processing in their investigations, perhaps in a manner akin to a triage process to narrow down a field of inquiry. The decision arising from such a process may be to conduct a further search of their systems; arguably, that decision significantly affects a data subject and engages that individual’s human rights. As such, it would be prohibited by the amendment, potentially impeding appropriate investigative work around identifying national security threats where the alternative of trawling through records by hand would be quite impossible.

Amendment 36 seeks to clarify what is meant by a decision,

“based solely on automated processing”, to ensure that human intervention must be meaningful. I am sympathetic to the intention behind the amendment but the phrase, especially when read with recital 71 of the GDPR, already provides for this. As my noble friend Lord Ashton indicated in Committee, mere human presence or incidental human involvement is not sufficient to constitute meaningful input. The input must be meaningful. Therefore, the level of human intervention required is already clarified in the text and I am confident that further elaboration of this provision is not required.

Amendments 37, 38 and 91 seek to enable the data subject to receive meaningful information about the qualifying decision taken so that they can determine whether it will benefit or harm their interest. The GDPR already provides for this in articles 13 and 14, which require data controllers to provide data subjects with meaningful information about the logic involved, as well as the significance and the envisaged consequences for the data subject when data is collected from them and whenever it is processed for a new purpose. The provision of information to data subjects is addressed in the article 29 working group guidelines published in October, which emphasise the need for the information to be meaningful and include an example relating to credit scoring. However, I would be happy to send the noble Lord a copy of the guidelines.

Similarly, we consider that Part 3 already provides for adequate information to be given to the data subject. Where a significant decision is based solely on automated processing, Clause 48 places a duty on the controller to notify the data subject and confers a right on the data subject to request that the controller reconsider the decision or take a new decision that is not based solely on automated processing. Given these provisions, we consider that the existing rights in the GDPR and in Part 3 are sufficient to enable a data subject to access information about processing related to them and to use such information as the basis to challenge any decisions.

Amendments 39, 40 and 94 would require the data controller to provide specified information, some of it technical in nature, regarding automated processing. We consider such a provision unnecessary, not least because of the substantial burden it would place on the data controller. Furthermore, a data subject would gain little from receiving technical information of arguably little practical use. As I have indicated, the GDPR and the Bill already provide that where automated processing results in a significant decision affecting the data subject, they must be informed of it. The GDPR and LED do not require data controllers to provide such technical information to data subjects and I am not persuaded that the Bill should take a different route.

Amendment 41 seeks to require a data controller to deposit an impact assessment with the Information Commissioner before engaging in automated decision-making concerning a child. I fear I am similarly unpersuaded of the case for this amendment. Article 35 already makes comprehensive provision for a data controller to conduct an impact assessment where a type of processing of personal data is likely to result in high risk to the rights and freedoms of natural persons, which will include children. Furthermore, article 36 requires the controller to consult with the commissioner prior to processing if the impact assessment reveals that there is a high risk to the processing. On the basis of this, the commissioner will provide the controller with appropriate written advice. We consider these measures comprehensive and believe no further requirements are needed in the Bill to supplement these articles.

Finally, Amendments 101 and 102 seek to strike out the provisions in Part 4 regarding automated decision-making relating to contracts. Although, of course, Part 4 derives from the modernised Council of Europe Convention 108 rather than the GDPR, it is instructive that recital 71 to the GDPR expressly refers to processing,

“necessary for the entering or performance of a contract between the data subject and a controller”, as one example of automated processing allowed when authorised by law. That being the case, I do not see why these provisions should be seen as vexing in any way. Again as I indicated in Committee, running a job applicant’s or prospective contractor’s name through a database as part of an initial sift could be one step in a selection or procurement process. The result of such processing could help determine subsequent stages of the process and therefore whether to enter into a contract.

The drafters of the GDPR, LED and Convention 108 were sensitive to the need to apply appropriate safeguards around the use of automated decision-making. The GDPR and the Bill give effect to such safeguards. In particular, data subjects must be notified of decisions and may request that the decision be reconsidered. Given this and the other safeguards provided in the Bill, including the monitoring and enforcement role of the Information Commissioner, I am satisfied that the Bill already makes adequate and proportionate provision and I therefore invite noble Lords not to press their amendments.

Photo of Lord Clement-Jones Lord Clement-Jones Chair, Artificial Intelligence Committee 5:15 pm, 13th December 2017

My Lords, I thank the Minister for that helpful unpacking of the amendments. I hope that the ICO will read her speech because, in essence, it has helpfully brought together a series of glosses on automated decision-making and the rights of the data subject. My amendments tried to bring together those rights specifically on the face of the Bill. The fact that the Minister had to unpack them from a quite a number of articles and recitals demonstrates just how opaque is the GDPR for many of us, including those of us who have spent many weeks in the salt mines—it is no less opaque than when we started. Her response was extremely helpful. I hope that some sort of explanatory memorandum produced by the ICO might help because many of us around the House are trying to future-proof the Data Protection Bill so that we do not have to keep coming back and invoking Clause 15, Clause 9 and so on—whatever our differences may be about Henry VIII powers. We want to come to some conclusions while the Bill is going through and really understand what the rights of the data subject are in the face of increasing use of algorithms and so on.

There are just a couple of areas in which I should push, in particular the article 29 working group guidance on “meaningful”. None of us really knows what the status of the article 29 working group will be. Will we have a 29 March 2019 working group? Does everything change after that or not? If we are relying on that kind of interpretation, we need to have a pretty clear idea and a pretty good statement from the Government that it will continue after Brexit.

Where I am still unpersuaded and thought the argument was not really as good as it could have been was over my Amendment 41, on recital 71. Children are not adequately drawn into the legislation or protected from automated decision-making—that was the reason for proposing that additional clause.

I will withdraw my amendment, but I will read very carefully what the Minister has had to say. I am sure we will have many more happy hours corresponding in this area, because it will provide grist to the mill for quite a number of observers who are extremely interested in the consequences of artificial intelligence and the data it uses. I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

Amendments 35 to 41 not moved.

Amendment 41A

Moved by Lord Stevenson of Balmacara

41A: After Clause 13, insert the following new Clause—“Use of private personal data accounts(1) Within the period of 12 months beginning with the day on which this Act is passed, the Commissioner must carry out a public consultation on the use of private personal data accounts by data subjects.(2) The consultation must include, but is not limited to—(a) how the rights accorded to data subjects under the GDPR and this Act, including the rights to rectification and to be forgotten, may be affected by having a private personal data account;(b) the conditions under which a data subject may make their personal data available to data controllers via a private personal data account; and(c) the remuneration arrangements which may arise between a data subject and a data controller through the use of a private personal data account.(3) In this section, “private personal data account” means a single account through which a data subject can store and share their personal data with data controllers.”

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

My Lords, I can be brief, I hope. Amendment 41A builds on a discussion held in Committee. We were trying to articulate, perhaps not very successfully but with some justification, the nature of the relationship between data subjects and data controllers when data is passed across for processing and use by that data controller. At that time my thinking was stimulated by work that we had read and heard about in relation to the idea that a person’s data could be given a personal copyright. That would open up to data subjects who are giving data to data controllers the rights that come with copyright ordinarily, such as a limited time—quite a long time, though—in which they have ownership and therefore are licensing their data for use. That could be subject to remuneration, as is very often the case in the creative industries where copyrights are used; they are used on a licensed basis for which remuneration is returned. If that were the case, one might also question whether copyright should be time-limited. That would put an end to the question of whether data subjects could withhold or retract their information in some sense, or rectify it so that it would not, therefore, be archived or go forward into other activities.

Since that time, a surprisingly large number of people have contacted me about this and offered advice and thoughts—not all of it helpful, I have to say. There seems to be a certain feeling that personal copyright is not the way to go forward on this, although I am still quite attracted to it. However, in that process I got a very interesting set of communications around the idea of data subjects becoming controllers of their own data; in other words, personal data controllers. This is a difficult concept. It seems to suggest that two characteristics are existing in the same time and space. Of course, the force will be with us when we get to this, but I am not sure I quite understand how it would happen. I think the problem has come because of the timeframe in which the GDPR was created. Preliminary debates took place in 2012 to 2014, and the GDPR dates from 2016 and will come in in 2018. We are talking about six to eight years since the original thinking, which is a very long time in cyberspace.

We have found that technology has moved ahead of us and the issue raised by this amendment, if I may be so bold as to suggest it, is that we will have to think quite hard about how individual data is used by data controllers, in the context not just of the Bill, but of the way in which the technology is moving. I fully expect the Minister to say that this is a blue-sky issue that needs to be picked up and looked at. Warm words will be offered and even a smile or two might glance its way across the Chamber to me and I will sit down in a miasma of happiness as a result, but the truth is that we need expertise and advice—this is not an easy concept, even if the force is with us. We will need to think harder about all these issues, including the points we have been talking about in terms of algorithms and automated use, in the context of people’s advancing rights and use of their data. It calls for a data ethics commission. The subject will come up again and I am sure that we will return to it on day three of Report, but in the interim I beg to move.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, this amendment has a lot of merit. For some time I have been discussing with certain people who know an awful lot about this, as has the noble Lord, the concept of agency: having control over your own information. It is a very important concept because the GDPR and the Bill are all about data processors looking after your stuff for you, but the real issue is having control over things that affect you. Why, if people are using it to make money out of you or on your behalf, should you not sell them that control in return for better access?

There are many issues around this that might suit a modern world in which your data can be useful, but to you, so that data processors do not just mine it and use it for their own purposes—you have control over it. This amendment has a lot of merit because it gives a foundation for us to start researching this. There is no compulsion here, but it could move us down a line whereby the data subject—the person in the street— suddenly gets some control over what happens when people research things for their own good. We are going to have to give away our location and other things to use most of these apps, so why can we not also control that and decide how to sell it to other people and benefit from it ourselves?

Photo of Baroness Kidron Baroness Kidron Crossbench

I, too, support the amendment. I raised this issue at Second Reading and pointed to the work of the ethics committee of the IEEE, which has done a lot of work on this. This is not as blue sky as the noble Lord suggested; this is indeed the direction of travel.

Photo of Lord Clement-Jones Lord Clement-Jones Chair, Artificial Intelligence Committee

My Lords, I am inspired by the last two speeches to add some words here. This is a very imaginative amendment. There is a great debate about ownership or control of one’s personal data, and this may be an elegant solution to some of that in future, although I suspect that the noble Lord, Lord Stevenson, may be right in his prediction about the Government’s response at this stage. Again, it is a bit of future-proofing that we really should think about.

If the Government do not like this, how do they think portability will work? If portability is to be a substantive right that can be taken advantage of under the GDPR, this is a very good way to make sure that data can then be inserted into a vehicle as a result of it having been sought in a portable way. This could be a very imaginative way to give teeth to the right of portability. I shall be extremely interested to hear how, otherwise, the Government think it will take effect.

Photo of Baroness Chisholm of Owlpen Baroness Chisholm of Owlpen Baroness in Waiting (HM Household) (Whip)

My Lords, I thank the noble Lord, Lord Stevenson, for explaining the amendment, and the noble Earl, Lord Erroll, the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, for their words. The amendment is fascinating. When I talked to the noble Lord, Lord Stevenson, about it earlier today, I thought that it just shows how interesting it is, how fast everything is moving in this world and how difficult it will be for us to keep up. I feel rather relieved that I may not be around to have to grapple with it myself and that there will be younger people better at dealing with it than I am.

The amendment would require the Information Commissioner to consult on the use of private personal data accounts, which provide for people to retain greater ownership of their data. While I recognise the intention behind this amendment—to stimulate debate and a shift in public attitudes towards personal data and its value—this is not the appropriate means through which to pursue these aims.

By way of explanation, I have three quick points to make. First, I question the value of the Information Commissioner consulting on the use of private data accounts, which are already available to those members of the public who wish to use them. Importantly, the priority for the commissioner at the moment and for the foreseeable future is helping companies and organisations of all sizes to implement the new law to ensure that the UK has the comprehensive data protection regime we need in place, and to help prepare the UK for our exit from the EU. I hardly need to point out that these are massive tasks, and we must not divert the commissioner’s resources from them at this point.

Secondly, it is a question not only of resource, but of remit. It is right that the commissioner monitors and advises on developments in the use and storage of personal data, but it is not her role to advise on broader issues in society. The question of whether individuals should have ownership of their personal data and be remunerated by companies for its use falls squarely into that category. The commissioner is first and foremost a regulatory body.

Thirdly, I take this opportunity to highlight that there are already mechanisms in the new regime which will support individuals to have more control over their data and place additional requirements on data subjects. For example, data controllers will be required, when obtaining personal data from an individual, to inform that person of: the purposes for which their personal data are being processed; the period for which their data will be stored, to the extent that this possible; their right, where applicable, to withdraw consent for their data to be used; and their right to lodge a complaint with the supervisory authority. Obviously, that is not an exhaustive list but it is illustrative of the protections that will be put in place. Such information must also be updated if the controller intends to process the personal data for any new purpose.

I fully agree with the noble Lord that the questions of an individual’s control over their data and the value of that data are worthy of debate and, as I said earlier, we will have to wrestle with them for years to come as the digital economy evolves. However, the Government’s view is that the Bill strikes the right balance between protecting the rights of data subjects and facilitating growth and innovation in the digital economy, and that placing an arbitrary requirement on the commissioner to consult would not be appropriate or the best use of her resources at this point. On that basis, I urge the noble Lord to withdraw his amendment.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

I thank all noble Lords who have spoken in this short debate, particularly the noble Earl, Lord Erroll, for the idea about agency, which is an important construct that we will need to keep an eye on. He is quite right about that. I thank the noble Baroness, Lady Kidron, for reminding me, correctly, that I had got a lot of information from the IEEE, whose work on this I have praised before. I reiterate that: it has done a great job in trying to think through some of the bigger issues involved in this area. I also take this opportunity to acknowledge the debt I owe an organisation called HATDeX, which has been working in this area and from which I got the original idea of a private personal data account.

I agree with the noble Lord, Lord Clement-Jones, that this is something that will come back to haunt us. Obviously, as long as the Minister is there with her beaming smile, we will be able to resist all blandishments to come at it, but I think it will come and bite us. It was not an arbitrary thought of mine that it might be something that the ICO would want to look at it. I know from talking to the ICO that it is interested in this as well. I think the Minister is saying that the proposal, as it is, stands outside the Bill framework, but that is because the Bill focuses on a particular area, and perhaps that is a pity. But if it is not the ICO, who is it? I hope it will be the data ethics commissioner that we hope to establish in the future. I beg leave to withdraw the amendment.

Amendment 41A withdrawn.

Photo of Viscount Simon Viscount Simon Deputy Chairman of Committees, Deputy Speaker (Lords)

I must advise your Lordships that if Amendment 42 is agreed to, I cannot call Amendments 43 or 44 due to pre-emption.

Schedule 2: Exemptions etc from the GDPR

Amendment 42

Moved by Baroness Hamwee

42: Schedule 2, page 129, line 18, leave out paragraph 4

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, paragraph 4 of Schedule 2, which this amendment would delete, deals with the provisions of the GDPR—that is, protections—which do not apply to immigration control. Government Amendment 44 alters that by removing some of the protections from the list; in other words, the protections would continue to apply in relation to the rights to rectification and data portability.

So what protections will the data subject forgo? I suggest that they are almost all basic safeguards, including: that the processing of someone’s personal information must be lawful, fair and transparent; that data must be processed accurately and kept up to date; that it be held securely; that the person to whom the data relates is informed of the data being held, for how long it may be held and for what purpose it may be used; and that the person to whom the data relates may inspect it and request its erasure. I am not clear what use the right to rectification, which will be retained, would be without one being able to access the data being held so that one could identify the factual inaccuracies. The Information Commissioner’s Office says that this will mean that,

“the system lacks transparency and is fundamentally unfair”.

The list may appear innocuous because not every paragraph in the articles listed is in play, but what is left are things such as that this right,

“shall not adversely affect the rights and freedoms of others”; the best part of each of the articles listed will no longer apply. This is not a limited or modest modification of the basic safeguards but a wholesale removal.

What is the purpose of this? The purpose is for,

“the maintenance of effective immigration control, or … the investigation or detection of activities that would undermine the maintenance of effective immigration control, to the extent that the … provisions would be likely to prejudice”, these matters. In other words, this is very far-reaching indeed.

Nothing that I say should be taken as suggesting that immigration control is not an important issue. By definition the provisions extend beyond criminal offences, which are dealt with separately. There are many offences within our immigration law. I do not resile from my observation that the second limb in paragraph 4(1)—

“the investigation or detection of activities that would undermine the maintenance of … immigration control”— gives scope for quite considerable fishing expeditions.

The phrase “likely to prejudice” means that judgment must be applied. It will be applied by the data controller, which in most cases will actually be the Home Office. In other words, the Home Office will apply or disregard safeguards by reference to whether the safeguards may prejudice its own purposes. The very fact that data is held will not be told to the data subject. To cite the Information Commissioner again, the “likely to prejudice” test is not,

“a … focussed provision with reference to specific statutory immigration functions”.

It is very wide indeed.

Immigration control has expanded in nature over the last few years. It stretches beyond the Home Office to the activities and functions of public bodies and private individuals in providing housing, healthcare, employment, education, social assistance, banking facilities, driving licences and marriage registration, as well as the private sector in carrying out functions for the state such as immigration removal centres. For instance, if an individual is refused a tenancy or a job, not only could he not take steps to protect himself but he may not even know that the Home Office is the source of the problem. Home Office Ministers must cringe when they hear examples—I will not demean them by describing them as anecdotes—of things that go wrong. I am sure we would all acknowledge that, as systems become more complex and more players are involved, the scope for error increases.

I will add one example, which has a worrying coda. My noble friend Lord Greaves was helping a lad in Lancashire—they call them lads in Lancashire, of course—who was born and raised there and had applied for a driving licence. He got a letter from the Home Office, not the DVLA or the Department for Transport, telling him that he could not have a driving licence and that, in a phrase with which we will be familiar, he must take steps to leave the country immediately. My noble friend asked a Question for Written Answer about with whom the Home Office has,

“data sharing arrangements in connection with the identification of individuals’ rights to receive public services or to reside in the UK, and other matters”.

The Answer stated that the Home Office has,

“agreements with government and non-government partners”, and that the data-sharing is in line with the Data Protection Act and so on, which is understood. It went on:

“The Home Office keeps such data sharing agreements under review but does not currently maintain a central register of all … agreements”, so there is no way of knowing with one Question what all the agreements are. I find that deeply worrying.

Our objections to paragraph 4 are not merely theoretical. I have referred to a British citizen being told that he is not only subject to immigration control but not entitled to be in the country. There are many such reports of similar experiences; the Independent Chief Inspector of Borders and Immigration found a high rate of error in a sample of refusals to open bank accounts. There are also many reports of documents in applications for bail from immigration detention being inaccurate, and not in a trivial way. The Information Commissioner tells us that the majority of data protection complaints to her office about the Home Office relate to requests for access to personal data to UK Visas and Immigration, mostly by solicitors acting for asylum seekers. As noble Lords will appreciate, the wider context is the reduction and removal of appeal rights and legal aid.

One group of people—3 million of them—who are very aware of the importance of accurate information and access to it are EU citizens living in the UK and concerned for their future. Subject access requests, as they are known, are an integral part of most immigration cases. If nothing else—I hope this relatively short canter round the subject indicates that there is a lot else—the scope to deny access is inconsistent with the spirit of last week’s understanding between the UK and the EU.

A similar proposal was seen off in 1983 when there was concern about race discrimination and race relations. The concerns now are even wider. The EHRC submits that the exception could,

“permit the authorities to access and process highly personalised data, for example, phone or social media relating to sexual lives of immigrants claiming residency rights on the basis of their relationship with a British citizen”.

We are used to being told that opposition amendments are unnecessary; I suggest that paragraph 4 is not only objectionable but unnecessary. In Committee, the Minister asserted its necessity and gave two examples: a suspected overstayer and the provision of false information. Both are criminal offences and can be dealt with under the other provisions of the schedule. People making immigration claims are, for the most part, merely seeking to assert their rights, not to offend in a criminal manner, or any manner.

This paragraph falls foul of article 23(1) of the GDPR that an exemption must respect,

“the essence of the fundamental rights and freedoms”, and must be,

“a necessary and proportionate measure in a democratic society”.

Administrative procedures should not be exempt from transparency and accountability. I beg to move.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Spokesperson (Housing), Opposition Whip (Lords), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Home Affairs) 5:45 pm, 13th December 2017

My Lords, Amendment 42, moved by the noble Baroness, Lady Hamwee, was also debated in Committee. The noble Baroness, her noble friend and other noble Lords raised concerns in Committee about paragraph 4 of Schedule 2 in respect of the broad nature, the wide-ranging exemptions and the application of those exemptions. I see the point about the application of this part of the Bill. The amendments tabled by the noble Lord, Lord Ashton of Hyde, set out in the Bill those rights which might be restricted by virtue of article 23(1) of the GDPR and so give more focus to this part of the schedule.

I want to see effective immigration controls and also fair immigration controls, but I do not want to see people unable to get access to data held on them or to how that data is being used and shared except in limited circumstances. I hope the Minister can confirm that the government amendments will do this on a case-by-case basis and do not provide a blanket power. These things are very sensitive and are a matter of balancing important principles, protections and rights carefully and coming down with the right protections in place. I think it would be a problem if we were left in a situation where we could disclose to data subjects information that could give them the opportunity to circumvent our immigration controls.

The noble Baroness, Lady Williams of Trafford, gave a detailed explanation of the Government’s opposition to the amendment in Committee and highlighted a number of the issues that would come forward. I do not think anyone wants a situation where we are making things worse for ourselves. I recall the examples given of an overstayer where the authorities are seeking to enforce an administrative removal or where there is an application to extend the leave to stay and it is suspected that false information has been given. These seem perfectly reasonable to me. The amendments tabled by the Government provide important clarification on what is exempt, limit the power in Bill and seek to address the concerns highlighted during the previous debate and today.

Photo of Lord Clement-Jones Lord Clement-Jones Chair, Artificial Intelligence Committee

Before the noble Lord sits down, does he therefore agree with the Government that this is all about the circumvention of immigration controls? Does he not think that essentially, as my noble friend Lady Hamwee mentioned, most of the circumstances are about people asserting their rights?

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Spokesperson (Housing), Opposition Whip (Lords), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Home Affairs)

I accept that people want to assert their rights. Of course, I do. I also think that we had a very detailed debate in Committee. Points were raised about the broad-brush approach; the Government have responded, and I am happy to support their amendments.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, these amendments bring us back to the immigration exemption in paragraph 4 of Schedule 2 which, as the noble Lord, Lord Kennedy, said, was debated at some length in Committee. As this is Report, I am not going to repeat all the arguments I made in the earlier debate, not least because noble Lords will have seen my follow-up letter of 23 November, but it is important to reiterate a few key points about the nature of this provision, not least to allay the concerns that have been expressed by noble Lords.

Let me begin by restating the core objective underpinning this provision. The noble Lord, Lord Kennedy, specifically asked for further clarity on this point. The UK’s ability to maintain an effective system of immigration control and to enforce our immigration laws should not be threatened by the impact of the GDPR. It is therefore entirely appropriate to restrict, on a case-by-case basis, certain rights of a data subject in circumstances where giving effect to those rights would undermine that objective. That is the sole purpose and effect of this provision—nothing more, nothing less.

The GDPR recognises this by enabling member states to place restrictions on the rights of data subjects where it is necessary and proportionate to do so to safeguard,

“important objectives of general public interest”.

The maintenance of effective immigration control is one such objective. This is the basis for the provision in paragraph 4 of Schedule 2.

The noble Baroness referred to article 23 of the GDPR. It does not expressly allow restrictions for the purposes of immigration control. She asked whether the immigration restriction is legal. She pointed to Liberty’s claim that the exemption is unlawful. It is not the case.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, the Minister is reading from her brief, but I do not think I made any of the statements it anticipated I would make.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I have been badly advised somewhere. Shall I just get on with what I was going to say?

I made clear in Committee that the exemption is not a blanket provision applying to a whole class of data subjects. It is important to note that Schedule 2 does not create a basis for processing personal data. The exemptions in that schedule operate as a shield allowing data controllers to resist the exercise or application of the data subjects’ rights as set out in chapter III of the GDPR. It is the assertion or application of those rights that triggers the exemptions in Schedule 2. Given this, it is simply not the case that the Home Office, or any other data controller, can invoke the immigration exemption or, for that matter, any other exemption as a default response to subject access requests by a group of persons. Instead, an individual decision must be taken as to whether to apply the exemption in circumstances where a data subject’s rights are engaged.

Moreover, before a right can be restricted, the controller must be satisfied that there would be a likelihood of prejudice to the maintenance of effective immigration control or the investigation or detection of activities that would undermine the maintenance of effective immigration control. Only if that test is satisfied will the controller be able to apply the restriction on the data subject’s rights. I should also stress that this restriction should be seen as a pause button and not something to be applied in perpetuity to the data subject. If circumstances change so that the test is no longer satisfied in a given case, then the restriction will have to be lifted.

Having said that, I recognise the concerns that were expressed in Committee about the breadth of the exemption, and government Amendments 43 and 44, as the noble Lord, Lord Kennedy, said, respond to those concerns. These amendments remove the right to rectification and the right to data portability from the list of data subjects’ rights that may be restricted. On further examination of the listed GDPR provisions in paragraph 1 of Schedule 2, we have concluded that the risk of any prejudicial impact on our ability to maintain effective immigration control that might arise from the exercise of the rights in articles 16 and 20 of the GDPR is likely to be low.

Having clarified both the purpose of this provision and the way it will operate, and having addressed the concerns about the extent of the exemption, I would ask the noble Baroness, Lady Hamwee, to withdraw her amendment and support the government amendments.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I am obviously disappointed by both those speeches. I agree with the noble Lord, Lord Kennedy, that immigration control should be effective and fair, which is precisely what I was driving at. He referred to balance; I quoted article 23(1), which requires necessity and proportionality.

I thank the Minister for her answers and for her response to Liberty. She talked about taking this “case by case”, but is that not how we deal with all our immigration control? We do not apply wholesale visa bans; we are not Trump’s poodle. Data requests are made on a case-by-case, individual basis, but you need to know what data is held in order to make the request.

The Minister referred to a “pause button”. I am afraid that does not, to me, have the air of reality or really offer any assurance in the real world.

Amendment 44 does not respond to our concerns. As I commented, you cannot exercise the right of rectification unless you know what is said about you. I feel we are hardly even talking the same language, although it gives me no pleasure to say that. I think I must seek to test the opinion of the House.

Ayes 92, Noes 222.

Division number 2

See full list of votes (From The Public Whip)

Content

Not-content

Amendment 42 disagreed.

Amendments 43 to 46

Moved by Lord Ashton of Hyde

43: Schedule 2, page 129, line 18, leave out “listed GDPR provisions” and insert “GDPR provisions listed in sub-paragraph (1A)”

44: Schedule 2, page 129, line 24, at end insert—“(1A) The GDPR provisions referred to in sub-paragraph (1) are—(a) the following provisions of the GDPR (the rights and obligations in which may be restricted by virtue of Article 23(1) of the GDPR)—(i) Article 13(1) to (3) (personal data collected from data subject: information to be provided);(ii) Article 14(1) to (4) (personal data collected other than from data subject: information to be provided);(iii) Article 15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers);(iv) Article 17(1) and (2) (right to erasure);(v) Article 18(1) (restriction of processing);(vi) Article 21(1) (objections to processing);(vii) Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in sub-paragraphs (i) to (vi); and(b) the following provisions of the GDPR (the application of which may be adapted by virtue of Article 6(3) of the GDPR)—(i) Article 5(1)(a) (lawful, fair and transparent processing), other than the lawfulness requirements set out in Article 6;(ii) Article 5(1)(b) (purpose limitation).(That is, the listed GDPR provisions other than Article 16 (right to rectification) and Article 20(1) and (2) (right to data portability).)”

45: Schedule 2, page 130, line 2, at end insert “or tribunal”

46: Schedule 2, page 132, line 23, column 2, at end insert—“( ) the Prison Ombudsman for Northern Ireland, or”

Amendments 43 to 46 agreed.

Amendment 47 not moved.

Amendment 48

Moved by Lord Pannick

48: Schedule 2, page 138, line 44, at end insert—“Confidential trust informationThe listed GDPR provisions do not apply to personal data in respect of which the controller is (or acts as agent or confidential adviser to) a trustee or other officer of a private trust to the extent that the data consists of information—(a) which records any person’s deliberations about the manner of exercise of a power or discretion under that trust, (b) which discloses any person’s reasons for any particular exercise of such power or discretion, or(c) upon which such deliberations or reasons were or might have been based.”

Photo of Lord Pannick Lord Pannick Crossbench

Amendment 48 is in my name and the name of the noble and learned Lord, Lord Walker of Gestingthorpe. It concerns the law of trusts, and I should mention, as the noble and learned Lord is unlikely to do so, that for many years he was the leading trusts practitioner at the Bar. During his career on the Bench, including in the Appellate Committee of this House, in the Supreme Court and in the Judicial Committee of the Privy Council, he gave many of the leading judgments that define the modern law of trusts.

I declare a much more modest interest as a practising barrister. I am not a specialist in the law of trusts but, as I explained in Committee, I know that the law has long recognised that a trustee is not obliged to disclose to a beneficiary the trustee’s confidential reasons for exercising or not exercising a discretionary power. The law recognises that if the trustee were to have such a duty of disclosure it would impede the trustee’s ability to perform his or her function, the effective exercise of which depends on confidentiality. The public interest is protected because the court has an inherent jurisdiction to supervise and, where appropriate, to intervene in the administration of trusts.

A recent Court of Appeal judgment, Dawson-Damer v Taylor Wessing, has prompted a concern of trust practitioners about the applicability of data protection law in this context. I have received powerful representations on this subject from the Trust Law Committee, which is a group of leading academics and practising lawyers. One of its concerns is that in other jurisdictions, such as Jersey, the data protection legislation contains express statutory restrictions on the right of a data subject to make a subject access request where that would intrude on the principle of confidentiality. Those who practise in this area are very concerned that offshore trusts, and offshore professionals providing trust services, are already actively encouraging the transfer of trusts business away from this jurisdiction because of data protection concerns. The irony in this is that data protection law may be driving trust business towards less transparent offshore jurisdictions.

The noble and learned Lord, Lord Walker, and I, accompanied by other trusts lawyers, had the benefit of a very helpful meeting with the Minister—the noble and learned Lord, Lord Keen—and members of the Bill team. I am extremely grateful to them for the very constructive discussions we had. I very much hope that the Minister, when he replies to this short debate—I hope it will be short—will be able to confirm three matters.

The first is that the Government understand and are sympathetic to the concerns raised by the Trust Law Committee, which I have just summarised. The second matter, which I hope the Minister can confirm, is that the Government’s view is that article 15(4) of the GDPR, which states that the right of access,

“shall not adversely affect the rights and freedoms of others”, applies in this context to protect the confidentiality principle. The third matter, to which I hope the Minister will be able to respond, is that if that view is shown to be erroneous in future litigation—I anticipate the Government do not believe this will be the case, but if it were to occur—I hope the Government would consider using the delegated powers conferred by this Bill to enact a specific and express exemption. I recognise, of course, that the Minister will be unable to commit the Government to any future course of action. I hope that the Minister will be able to respond positively on those three matters. They would go a long way to alleviating the concerns of trusts lawyers. I beg to move.

Photo of Lord Walker of Gestingthorpe Lord Walker of Gestingthorpe Judge

I have added my name to the amendment proposed by my noble friend Lord Pannick, and I shall say a few words in support of it. I do not want to repeat any of the points my noble friend has made, but I shall say a little bit about the practicalities of the documents that are likely to be the subject of data access requests by a disappointed beneficiary who wants to circumvent by the use of these powers the traditional confidentiality of discussions between trustees, even if put down on paper, which has been established in English law for about 50 years or more.

Discretionary trusts are still very common—surprisingly, in a way, given the increasingly complex inheritance tax provisions that affect them. I am talking about trusts with English law as the proper law and trustees resident in this country, who pay all the income tax, capital gains and inheritance tax that is due from them from time to time. In my experience, trustees of long-term discretionary trusts are often not solicitors or accountants but friends or acquaintances—reliable people trusted by the settlor with important discretions. Solicitors and accountants are, of course, involved, but they get their fees for professional advice. The trustees themselves generally get no remuneration for taking on what are sometimes huge and increasingly worrying responsibilities.

Discretionary trusts commonly confer wide discretions over both the disposition of income and the eventual destination of capital—usually it is a trust over income and powers over capital, but I need not go into those technicalities. Often, there will be a large class of beneficiaries who can be the objects of the exercise of the trustees’ discretion, typically a settlor’s children and remoter issue, very often their spouses or some remoter relatives or friends—named, of course, rather than just left as “friend”—and named employees and retainers. All those beneficiaries are, in a sense, in competition with one another. They do not, of course, seek favours from the trustees, but the fact is that the trustees sometimes have to exercise very difficult decisions on how to spend resources.

It is the duty of the unremunerated trustees to keep themselves fully informed about the beneficiaries. They have to take account of births, deaths, marriages, separations and divorces; of success or failure in education, and in business or professional life; of disability or injury—and sometimes, sadly, of beneficiaries who have become addicted to drink, drugs or gambling. So let us imagine trustees of a discretionary trust who meet once or twice a year to consider how they will distribute income and whether they will distribute capital in the course of that year, or six months. In a sense, all the beneficiaries are in competition, and inevitably the confidential minutes of the trustees’ deliberations will record how the trustees approached those competing demands and how they measured up, as they have to in a sense, the claims of one beneficiary rather than another on the settlor’s bounty. It is a consideration by the trustees collectively of all the competing claims on the settlor’s bounty, yet the data subject, to use the phrase in the Bill, who will in this case typically be a disgruntled and disaffected beneficiary, is entitled to information about the data subject himself or herself alone. That is fundamental to how the provisions work, which is underlined by paragraph 14 in Part 3 of Schedule 2, which relieves the data controller, who in this case will be the solicitor or accountant who keeps the trust records,

“to the extent that doing so would involve disclosing information relating to another individual who can be identified from the information”.

If one looks at the practicalities, the likelihood is that those confidential minutes would have to be so savagely redacted with the censor’s blue pencil as to be barely comprehensible—certainly, not giving any sort of true picture of how the trustees had operated. Redaction would be troublesome and oppressive to the trustees, but even more oppressive—and I come back to the central point made by the noble Lord, Lord Pannick—is the fact that the trustees, who are typically unremunerated and doing their best to do what is sometimes a very difficult job, would be compelled to disclose what was not redacted to the disaffected beneficiary: the data subject. For those reasons, which I have briefly given, and all the reasons given by the noble Lord, Lord Pannick, I support the amendment.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 6:30 pm, 13th December 2017

My Lords, I begin by thanking the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Walker of Gestingthorpe, for taking the time to meet me and officials to explain in detail the concerns following the debate in Committee. The question about the interaction of the fundamental principles of trust law and the GDPR is a valid one that we understand, and which deserves a response.

In Committee, my noble friend the Minister conveyed that it is not our intention to compel trustees to disclose the kind of information described in the noble Lord’s amendment. The Government both understand and are sympathetic to the noble Lord’s concerns in this respect.

Article 15 of the GDPR confers a general right for a data subject to seek access to personal data held by a controller, but there are a number of exemptions, set out directly in both article 15 and in Schedule 2 to the Bill. The amendment of the noble Lord, Lord Pannick, seeks to add an additional exemption to Schedule 2 to preserve the confidentiality of trustees’ decision-making and to minimise the risk of disagreement between beneficiaries and trustees, to which the noble and learned Lord, Lord Walker, referred. The Government’s position remains that article 15(4) of the GDPR already prevents the disclosure of the material the noble Lord’s amendment is concerned with. This is because the Government consider that the,

“rights and freedoms of others”, referred to in article 15(4) includes the rights of both trustees and other beneficiaries. Where disclosure under data protection law would reveal information about a trustee’s deliberations or reasons for their decisions that would otherwise be protected from disclosure under trust law, the Government’s view is that disclosure would adversely affect the rights and freedoms of trustees and beneficiaries in the trustees’ ability to make independent decisions in the best interests of the trust without fear of disagreement with beneficiaries.

While I appreciate the noble Lord’s concerns, rushing to codify what in trust law is generally referred to as the Londonderry principle would, we consider, be a disproportionate step. The wider potential risks and unintended consequences involved mean that pre-emptive action in this area, far from clarifying the position, might actually confuse it. Should the law be tested after Royal Assent and found wanting—which, I stress, the Government do not expect to happen—the delegated power in Clause 15(1) allows the Secretary of State to bring forward regulations to correct this. By that point it will be much clearer what deficiency, if any, has in fact been identified in the law and we would expect a Government to consider those powers in such circumstances. I hope that is a full and adequate response to the three points the noble Lord, Lord Pannick, made. In those circumstances, I invite him to withdraw the amendment.

Photo of Lord Pannick Lord Pannick Crossbench

I am very grateful to the Minister. He has responded positively to each of the points that I made. I know that the House is anxious to move on to reaffirming freedom of speech. Therefore, I will say no more other than to beg leave to withdraw the amendment.

Amendment 48 withdrawn.

Amendment 49

Moved by Lord Ashton of Hyde

49: Schedule 2, page 140, line 43, leave out “by the controller”

Amendment 49 agreed.

Amendment 50

Moved by Lord Keen of Elie

50: Schedule 2, page 142, line 1, leave out sub-paragraph (2) and insert—“(2) Sub-paragraph (2A) applies to the processing of personal data carried out for the special purposes if—(a) the processing is being carried out with a view to the publication by a person of journalistic, academic, artistic or literary material, and(b) the controller reasonably believes that the publication of the material would be in the public interest.(2A) The listed GDPR provisions do not apply to the extent that the controller reasonably believes that the application of those provisions would be incompatible with the special purposes.”

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, exactly a month ago, we had an interesting debate concerning a range of amendments tabled by my noble friend Lord Black. It was a surprisingly consensual debate, and I am rather hoping for more of the same this evening. The noble Lord, Lord Stevenson, agreed that there were serious issues raised that needed to be addressed. The noble Lord, Lord McNally, agreed that the Bill needed amending to ensure that it did not undermine the work of investigative journalists. The Government have listened, as we have on so many issues raised by noble Lords, and we have tabled appropriate amendments.

Government Amendment 50 deals with the issue raised by my noble friend that the Bill applies the exemptions only where processing is for the special purposes. We heard the persuasive example of the media being penalised if, for example, the police sought the pre-broadcast disclosure of journalistic material in relation to an undercover investigation because they wanted to see whether the alleged wrongdoing uncovered by the broadcaster’s investigation merited further police investigation. We agree that it is unfair and our amendment puts this right.

Government Amendment 57 concerns the list of journalistic codes of practice that appears in paragraph 24 of Schedule 2, which is also the focus of a number of amendments tabled by noble Lords, from whom I am sure we will hear in due course. In Committee, the noble Lords, Lord Clement-Jones, Lord Stevenson and Lord Skidelsky, and the noble Baroness, Lady Hollins, all highlighted that the editors’ code is incorrectly described in the Bill as the IPSO editors’ code. Having looked at this further, we concede the point and the Government’s amendment removes the reference to IPSO. The legal effect of this is nil but we should use the correct label. We are grateful to noble Lords for bringing this fault to our attention.

Government Amendment 61 is a further concession to deal with further concerns raised by noble Lords. Article 36 of the GDPR would have required investigative journalists to consult with the ICO before instigating covert filming, such as when investigating allegations of abuse against vulnerable residents at a care home. Article 44 of the GDPR might disproportionately impact on collaborative investigative journalism, including the sharing of data across borders where appropriate, such as with, for example, the Panama papers. The government amendment allows journalists to be exempted from these restrictions where the public interest test is otherwise met.

Government Amendments 150, 156 and 161, as well as a number of consequential amendments, create journalistic defences to the offences in Clauses 161 and 162 in respect of unlawfully obtaining personal data or unlawfully reidentifying de-identified data. We accept the arguments of my noble friend Lord Black that what processing is permitted for the special purposes under Schedule 2 should not be criminalised later in the Bill. These amendments remove any doubt on this matter. We wish to ensure that we do not criminalise journalistic or whistleblowing activities that are believed to be in the public interest.

Government Amendment 162 removes paragraph (c) from Clause 164(3). This measure allowed the Information Commissioner to determine prepublication whether processing could be done without reliance on the special purpose provisions. Many noble Lords felt this was a power to allow the commissioner to overreach and interfere in journalistic decisions. I am grateful for the advice of the noble Viscount, Lord Colville of Culross, together with that of my noble friend Lady Stowell of Beeston, who took the time to come and see me about this provision and further explain its dangers. The noble Lord, Lord McNally, set out similarly powerful arguments in Committee. Following further discussions with stakeholders and the commissioner, the Government have concluded that giving the commissioner power to take such enforcement action in relation to data being processed for the special purposes before the journalist or author publishes their work goes beyond what we consider is the appropriate role of the commissioner as the regulator and enforcer of the data protection legislation. With Amendment 162, the circumstances in which enforcement action would be available to the commissioner in relation to the special purposes would be limited to that of the existing position under the 1998 Act.

I will respond in full on the other amendments in this group once noble Lords have explained their intent. I beg to move.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees

My Lords, I have to inform the House that if Amendments 50 or 50A are agreed to, I cannot call Amendments 51 or 52 by reason of pre-emption.

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, the government amendment is excellent and I support it. However, it does not go far enough. I have therefore introduced a manuscript amendment.

My Amendment 50A would simply add two further provisions—my Amendments 51 and 52—into government Amendment 50, and would do no more than what Lord Justice Leveson recommended: to rebalance data protection law and prevent speculative trawling for stories. Operation Motorman was a police investigation in 2003, which I have mentioned before in debate, and it found that private data was being stolen on behalf of newspapers. That information, taken from private, medical, police, local authority, bank and many other confidential records, was used for stories or to hack phones. Those findings were considered by Leveson, who also reviewed the submissions of media organisations, and he was able to cut through some of the rhetoric—the kind of rhetoric that we have seen splashed across several newspapers today. He found that data protection law was fundamentally imbalanced in favour of publications at the expense of the public. That is not right. Just as the Human Rights Act strikes a balance between Article 10 speech rights and Article 8 privacy rights, so the GDPR obliges us to strike the same balance on data protection. This is not just following our own precedent; it is the right thing to do and is a legal requirement.

This amendment would implement some of Leveson’s recommendations. First, it would change the test for the exemption to apply to ensuring that the data processing in breach of the individual’s rights was necessary for future or continuing publication rather than undertaken just with a view to publication, as in the DPA and currently in the Bill. This is Leveson recommendation 48A and would protect the public from fishing operations when journalists process data without any specific intention to publish. Let me be clear: the data itself would not have to be published but the processing would need to have been done with an intention to publish—that is all. Secondly, this amendment would ensure that the exemption should be available only where the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication. This properly strikes the balance between privacy and freedom of expression—this is Leveson recommendation 48C—and this balance is specified in the GDPR.

These amendments are the product of representations from all sides at the Leveson inquiry which sought a compromise—a way to protect the free-expression rights of publishers and to ensure that the public are protected. I thank the noble Lords, Lord McNally and Lord Stevenson, who have supported this amendment, and I also acknowledge assistance from a number of sources including the victim-representative organisation Hacked Off. I hope the House will support these reforms to bring balance to data protection law.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

My Lords, in this group of amendments I support government Amendment 50 and oppose, therefore, the plainly incompatible manuscript amendment to which the noble Baroness, Lady Hollins, just spoke. Its incompatibility is surely obvious. First, and perhaps most critically, in proposed new sub-paragraph (2)(a) it would substitute the words,

“necessary for the future or continuing publication”, for the Minister’s words,

“being carried out with a view to the publication”.

There would be two important consequences of that. First, as the noble Baroness said, it would involve establishing the necessity of processing, plainly a steeper and more exacting test to be satisfied than the test of processing “with a view to” publication. I respectfully suggest that necessity is too high a hurdle to demand with regard to processing data in these most important areas of our life—journalism, academe, art and literature. Linked to that, the proposed change would seriously inhibit prepublication preparatory work, most obviously and particularly work of investigation and research with a view to publication but which may in the end never result in publication.

As the noble Baroness also rightly told your Lordships, the second change from the Minister’s draft is the proposed addition by her of new sub-paragraph (2)(c), which again is designed to stand as a possible obstacle to the journalistic processing of data. Essentially, I am sure it will be accepted that Amendment 50A attempts to tip the balance rather against journalists and others who are seeking to invoke these exemptions. They tend to introduce a presumption in favour of privilege whereas I suggest it ought properly to be a presumption in favour of freedom of speech.

I would respectfully remind the House of Section 12 of the Human Rights Act 1998, which is headed “Freedom of expression”. It basically forbids any restraint on pretrial publication unless the court or tribunal,

“is satisfied that the applicant is likely to establish that publication should not be allowed”; and it requires that particular regard be had to the importance of the convention right to freedom of expression and, so far as journalistic, literary or artistic material is concerned, regard also to the extent to which publication would be in the public interest.

I respectfully urge the Minister to stick with his draft, brought before us in the shape of Amendment 50.

Photo of Viscount Colville of Culross Viscount Colville of Culross Crossbench 6:45 pm, 13th December 2017

My Lords, I declare an interest as a series producer at ITN Productions. I thank the Minister for responding so positively to the concerns expressed by myself and other noble Lords from across the House in Committee who were worried about the effect that Clause 164(3)(c) would have on free speech. I am therefore grateful to him for bringing forward government Amendment 162, and I also support government Amendment 50.

I have concerns about my noble friend’s Amendment 50A. It replaces the phrase,

“with a view to the publication”, with the term “necessary”—which, I fear, would cause huge problems for journalists, authors and academics. The present wording in the Bill allows them to take the view that material can, and indeed should, be appropriately retained, even if it is not for publication. This could be necessary to respond to any possible legal or editorial complaints which might arise from the publication of a programme or article. Surely noble Lords would want these complaints or legal actions to be responded to as fully and accurately as possible. The ability to defend a publication surely supports the act of publication itself. This amendment would not allow data to be retained for those purposes.

I am also concerned that data collected which might not be used in the original publication could be crucial in supporting subsequent stories on the subject. In Committee I referred to the investigation by the Sunday Times of drugs cheating by the cyclist Lance Armstrong. Initially, Mr Armstrong sued the paper for defamation. But, despite settling, the newspaper persevered in its investigations, which ultimately led to Mr Armstrong confessing that he was indeed a drugs cheat.

Keeping hold of data in many investigations can be crucial, even if it is not necessarily obvious at the time whether it should be so. The Hillsborough inquiry and subsequent stories over 20 years relied heavily on unbroadcast BBC footage from the Hillsborough football stadium at the time of the tragedy. It provided vital information for subsequent inquiries and inquests. Surely noble Lords would not want that sort of material, which might seem unimportant at the time, to be deleted. I therefore ask the Minister to stick to his guns and reject Amendment 50A.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, we had rather strong debates in Committee and I am not going to repeat any part of those. I have thought about how I could best help the House at this stage, and I think it is by stating what I believe the law to be and why Amendment 50A, if carried, would put the Bill in breach of the Human Rights Act and the European Convention on Human Rights.

When the Bill was first introduced, the Minister certified, as is required under the Human Rights Act, that in his view it was compatible with the convention rights; those being the right to free speech, the right to personal privacy and the right to equal treatment without discrimination. The amendments that the noble and learned Lord, Lord Keen, has introduced in this group would pursue the convention rights and, if carried, as I hope they will be, make sure that the Bill continues to be compatible with the convention rights.

In the light of the speech by the noble and learned Lord, Lord Brown, it would be quite unnecessary and wrong for me to go through the relevant law in any detail. But perhaps I can help the House a bit by giving a very brief summary of why I consider the government amendment compatible, and the amendment put forward by the noble Baroness, Lady Hollins, or those supporting Hacked Off and all the rest, incompatible.

The position is this. Article 10 of the convention protects the right to free speech and freedom of the press, subject to necessary and appropriate exceptions. One exception is, of course, personal privacy, which is guaranteed by Article 8 of the convention. The test the convention uses, as interpreted by the European Court of Human Rights, is a pressing social need test. The starting point is free expression and any restriction or limitation on that right must be in accordance with legal certainty and must be proportionate. The Human Rights Act requires that all legislation, old and new, including this Bill, must be compatible with the convention rights. It also requires courts to read and give effect to the convention compatibly with those rights.

Together with the noble Lord, Lord Pannick, I edited a textbook, the third edition of which we published in 2009. It has a whole chapter on free speech and another on privacy. What I am trying to summarise now, we spelled out in that large textbook some years ago. I am trying to help the House by giving a legal opinion on what I consider the law to be. I very much hope that the noble and learned Lord, Lord Keen, will correct me if I have got it wrong in any respect, because the House needs to know that if it were to support Amendment 50A, it would, in my view and that of the noble and learned Lord, Lord Brown, put the Bill in breach of the convention and the Human Rights Act. The Minister could then no longer certify that it was compatible with the convention rights.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I declare an interest as the co-author with the noble Lord, Lord Lester, of Human Rights Law and Practice, available in all good bookshops. I declare an interest also as a practising barrister. I have represented newspaper groups many times in relation to privacy and freedom of speech issues, but I have also represented individuals complaining about breaches of their privacy—individuals as diverse as Max Mosley and Her Majesty the Queen. Noble Lords may remember that the contents of Her Majesty the Queen’s breakfast tray were disclosed in the Daily Mirror by a footman who was, in truth, a foot-in-the-door man from that paper. I speak, therefore, from legal experience.

I agree entirely with what was said by the noble Lord, Lord Lester, my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Colville. We should be very slow indeed to limit the scope of the exemptions for journalists and in relation to academic, artistic and literary material. Without these exemptions, as defined in government Amendment 50, journalists cannot do their job effectively: you cannot investigate child sex abuse in Rotherham, corruption in Tower Hamlets or any of the other examples that have been given if those you are investigating are entitled to see the data you are processing that relates to them. Such data may not be “necessary” but it may be material that needs to be retained and published. It is as serious as that.

These are not theoretical concerns. Earlier this year, Mr Justice Popplewell dismissed a claim by James Stunt, a businessman who was married to one of Bernie Ecclestone’s daughters. Mr Stunt complained about a number of articles in the Daily Mail and the Mail on Sunday, claiming rights under the Data Protection Act 1998. The judge dismissed the claim, stating in paragraph 56 of the judgment that journalism would be discouraged or impeded,

“if the subject had access to the detailed extent or direction of the investigation, of the information gathered or of the intended story”.

That is right. In my view, government Amendment 50 adopts the right approach with its focus on the reasonable belief—not any belief, but the reasonable belief—of the data controller that publication is in the public interest.

It gives me no pleasure to say that many of the amendments in this and the next group are not concerned with promoting the ability of journalists and others to carry out their essential functions under Article 10 in relation to freedom of speech and freedom of information. They pursue a different agenda: either to encourage newspaper groups to join Impress as their regulator or to punish the press for the wrongdoing of some of its members. I say to noble Lords that that should not be the concern of this Bill, which should focus on protecting freedom of information in relation to data.

I cannot agree with manuscript Amendment 50A. It would provide a field day for those seeking to impede academic work, artistic and literary expression, and journalism that they do not welcome. It would inevitably create a chilling effect on work in academia, the arts, literature and journalism. I simply do not understand how a necessity test would work. When the journalist, the academic or the artistic or literary individual is conducting the processing, they cannot know whether it is necessary for future publication—they may reasonably believe that it will be or that it may be, and that is enough. Manuscript Amendment 50A, if accepted, would seriously damage freedom of expression in this country. As the noble Lord, Lord Lester, said, it would be a blatant breach of Article 10 of the European Convention on Human Rights.

Photo of Lord Prescott Lord Prescott Labour 7:00 pm, 13th December 2017

My Lords, I cannot give this House a legal opinion but I can give an opinion based on experience. I declare an interest: I attended the Leveson inquiry because I was on the end of illegal tapping of my phone. Public interest was not defined there; it was defined by the editors of the papers. They said it was not illegal, but clearly it was.

I support what the noble Baroness has said tonight. She is absolutely right and I am glad that there is a lot of support for her amendment. However, I am concerned that it addresses only a small part of what Leveson recommended. He made recommendations about public interest—it is an important issue and I welcome the amendment—but even though we all voted unanimously for the royal charter and the proposals of Leveson, we keep hiding away from debating his main recommendations. He made 37 recommendations and only 12 have been implemented. We have taken a small step forward but to have a serious debate about public interest you have to cover all the things that Leveson recommended—and we do not do that. We have to ride on the back of a single piece of legislation, and the answer always comes that it is not realistic to put such a proposal in the legislation. I am glad that tonight there has at least been agreement—presumably by both sides, for whatever political reason—that we have to move to do something about the important issue of public interest.

I will not go on about that. I have a couple of questions for the Minister, which I hope he will answer. I wonder whether we are taking into account here the hacking actions that are going on at present in the courts. The Government have always said that they will wait until the courts have finished, but hacking actions are continuing. Statements have been made in court that hacking is still going on, involving and paid for by some members of the press.

The royal charter involves the monarchy in politics. It is where the divisions are and why I resigned as a privy counsellor. I thought it was designed to keep the monarchy out of it, but now it is right in the middle of it as we get more and more into whether we are for or against the Leveson proposals. Is it still the Government’s policy that they will wait until all the court trials have finished before they give their view of the many recommendations in Leveson? Is it the position that the Government do not want to accept Leveson’s recommendation for a second inquiry into the relationship between the police and the press, which is still at the heart of many of these problems at the present stage?

To show that I am intellectual, I read in the Times—which is not a paper I support—an editorial headed “Free Speech in Peril”, which covers the very things we are discussing at the moment. It states:

“A number of peers have seized on a chance to curb press freedom by meddling with new data protection legislation. They should desist”.

I hope that tonight we will not desist but will carry it through.

The charge levelled in the Times—that this is an attack on press freedom—is signed by 70 newspaper editors. In fact, that means it is signed by seven owners of different papers. Seven cabal owners decide to describe Leveson as a big attack on press freedom, so why is it that the same papers that object to interference, in regulatory form or by government, all sign up for press regulation in Ireland? Every one of the papers we are talking about, which tell us that we are threatening freedom, have now signed up recently. I do not know whether they are less democratic or whether their freedom is threatened in Ireland, but they are the same people. It is hypocrisy.

Have the Government looked at what they have done in Ireland? A Minister is in charge in Ireland, not an independent regulator as proposed by Leveson. In Ireland a government Minister—a direct political person—decides whether the press is acting in a responsible way and, presumably, in the public interest.

The amendment is a small step forward and there is a long way to go yet, without a doubt. I hope that we will give more consideration to those factors. Basically, there is a lot more to be done. I am thankful that the Government, as I have heard, are supporting the proposal of the noble Baroness, Lady Hollins. It is a small step but there is a lot more to be done. These threats to press freedom are not coming from the politicians but from the press—and it is about time we took account of that.

Photo of Lord Black of Brentwood Lord Black of Brentwood Conservative

My Lords, as these amendments deal with the media, I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

I will say a brief word first about Amendment 50 and the other government amendments in this group. These amendments seek to deal with a number of the problems raised in Committee by noble Lords across the House, as my noble friend said. I have a number of times during the course of the Bill commended the Government for their commitment to consultation on all the issues impacting on media freedom and for their willingness to discuss them with interested parties. I am grateful to my noble friend the Minister for the way in which he has approached these issues and I strongly support the amendments.

Manuscript Amendment 50A, like Amendments 51 and 52—especially in combination with later amendments with which we will deal in due course—point, I fear, in absolutely the other direction. The issue surrounding them has been eloquently and cogently set out by the noble and Lord, Lord Brown of Eaton-under-Heywood, and the noble Lords, Lord Lester and Lord Pannick. I could not improve on what they have said in any way, shape or form. Those amendments would, in short, cripple investigative journalism for all the reasons the noble Lord, Lord Pannick, set out.

Above all, they would create a deeply repressive data protection regime for all those involved in journalistic, academic, literary and artistic activities. It is not only journalists on national newspapers, who are so clearly targeted by these amendments, who would be punished but the local press, broadcasters, academics, film producers, playwrights, book producers and many others. As they all use data regularly in the course of their activities, it would make their day-to-day work almost impossible. This House, which contains so many people drawn from academia, the arts and the world of literature—I see many around me here today—has always prided itself on championing the UK’s creative industries. How ironic that we should even be debating these repressive amendments, which would be a body blow to the entire sector. They would place all those who work in it—many tens of thousands of people—at a huge disadvantage compared with their colleagues and competitors in the rest of Europe and elsewhere in the world.

On the amendments concerning the designation of codes by which the media should reference the public interest in publication, Amendments 54 and 56 seek to downplay the role of the Ofcom code, BBC guidelines and the Editors’ Code of Practice, all of which the 1998 Act sought to safeguard, and Amendment 55 would sweep them out completely. Amendment 55 seeks to give a statutory regulator, the Information Commissioner, power to determine codes of practice and guidance for the purposes of operating the journalistic exemptions and applying the public interest criteria within the Bill. This, again, is a significant departure from the terms of the 1998 Act, which has worked so well.

The Information Commissioner could choose not to determine particular codes even though they are recognised by the courts and elsewhere in legislation. She could even draw up and determine her own codes and guidance, without any reference to the long-established regulators of the broadcasters and the press, which would then have legal status. Even to a non-lawyer such as me, codes and guidance with legal status determined, drawn-up and administered by a statutory regulator is a system of statutory press regulation in the making—to which the vast majority of Members of this House say they are opposed—and is therefore a dangerous step which we should not take.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, in the absence of the noble Baroness, Lady O’Neill, I shall speak in support of Amendment 58, which is in the names of the noble Baroness, Lady O’Neill, the noble Lords, Lord Lipsey and Lord McNally, and myself.

The Bill contains an exemption for publication which is for journalistic, academic, artistic and literary purposes and is in the public interest. In determining whether publication is in the public interest, regard must be had to,

“any of the codes of practice or guidelines listed in sub-paragraph (5)”, of paragraph 24, which is in Part 5 of Schedule 2. The codes of practice listed in sub-paragraph (5) are the,

BBC Editorial Guidelines; … Ofcom Broadcasting Code; … IPSO Editors’ Code of Practice”.

The purpose of Amendment 58 is to add to that finite list a further, open-ended category of codes to cater for any other relevant code of practice approved by the Press Recognition Panel. The immediate effect of the amendment would be to add the Impress standards code to the list of journalism standards codes recognised in the Bill, because so far it is the only one which has been approved by the Press Recognition Panel.

The Bill rightly recognises that journalists may sometimes have occasion to process and publish people’s personal data. On the rare occasions when a journalist has occasion to breach someone’s data privacy, the Bill requires them to show a reasonable belief that doing so was in the public interest. The Bill itself does not include a public interest test. Instead, it refers to three codes which do: the BBC Editorial Guidelines, the Ofcom Broadcasting Code and the IPSO Editors’ Code of Practice. Our amendment would add a fourth code, or rather a class of codes, to the list:

“any code which is adopted by an approved regulator as defined by … the Crime and Courts Act 2013”.

This modest amendment would bring the Bill closer to the recommendations made by Sir Brian Leveson following his inquiry into press standards and press regulation. It would also reflect the changing nature of news publication in this digital age. An approved regulator as defined in the Crime and Courts Act 2013 is a regulator that is compliant with the Leveson recommendations as distilled in the royal charter on self-regulation of the press. The royal charter requires an approved regulator to have an independent board, to have effective powers of remedies, to provide a low-cost arbitration scheme for civil disputes and to take responsibility for a standards code. According to the charter, the standards code of an approved regulator,

“must take into account the importance of freedom of speech, the interests of the public … and the rights of individuals”.

In particular, it must include appropriate “respect for privacy” where there is no sufficient public interest justification for breach.

The charter also states that a regulator can be approved only if it provides,

“non-binding guidance on the interpretation of the public interest that justifies what would otherwise constitute a breach of the standards code”.

In other words, a regulator can be approved only if its code properly balances the interests of freedom of speech with appropriate respect for privacy and if it provides guidance on what this means in practice. In order to be listed, an approved regulator must not just be likely to have the right kind of code; it must be guaranteed to do so.

At present, the only approved press regulator is Impress, the Independent Monitor for the Press, which was recognised by the Press Regulation Panel in October 2016 after a nine-month application process. The decision of the Press Recognition Panel to approve Impress has recently been upheld by the High Court, which dismissed an application for judicial review brought by the News Media Association on all six counts. In due course, other regulators may be recognised.

The system we envisage is not exclusive and more than one regulator at a time may enjoy approved status. In this way, Amendment 58 allows for changes in the regulatory landscape. So long as a regulator has successfully completed the rigorous approval process, its standards code would be included; if a regulator withdraws from the recognition system or loses its approved status, its code would no longer be included.

Impress now regulates 78 news publications across the UK that reach almost 7 million readers every month. A further 36 publishers have applied to join. Without this amendment, these publications would not enjoy the same protections as members of IPSO, which does not meet the Leveson criteria and is not externally accountable. In these circumstances, for the Bill not to contain a framework that covers Impress and other Press Recognition Panel-approved publishers beyond the three codes currently listed would be perverse.

I understand that Impress has been endeavouring for more than a year to ensure that its code is listed alongside the other codes in this part of the Bill. So far, the Government have failed to engage with these efforts while choosing to continue to include the IPSO Editors’ Code of Practice in the Bill. Amendment 58 does not seek to remove IPSO’s code; it simply seeks to include Impress’s code and the code of any other approved regulator. I hope that the noble Lord, Lord Pannick, will recognise that doing this in no way seeks to curtail press freedom or to remove the IPSO Editors’ Code of Practice from being listed in the Bill. It seeks only to add Impress and any other Press Recognition Panel-approved code of practice.

An alternative approach is before us today in the shape of Amendment 55 tabled in the name of the noble Lord, Lord Stevenson. It would replace the list of codes entirely and refer instead to any,

“appropriate codes of practice and guidance as determined by the Commissioner”.

I appreciate the intention behind the proposal, but it raises a number of questions. Would the Information Commissioner maintain and publish a list of codes that have been found appropriate, or would she consider any code on a case-by-case basis? How would the commissioner reach her determination? What criteria would she consider? Without answers to these questions, we are faced with a great deal of uncertainty about how the proposed system would work in practice.

If Amendment 55 were adopted, a journalist whose work is currently regulated under one of the codes already listed would lose their protection under the Bill. They might be concerned that the commissioner would find that their code was not appropriate. As a result, they might choose not to pursue an important investigation. Conversely, a journalist whose work is not currently regulated under a code listed in the Bill might write a code on the back of an envelope and then breach someone’s privacy in the hope that their code was subsequently found to be appropriate. In the digital age, where news websites are launched on almost a weekly basis, this scenario is not as far-fetched as it might seem. In both cases the lack of clarity would lead to harmful consequences for the public. It would have a chilling effect on legitimate and responsible journalism and an emboldening effect on illegitimate and irresponsible journalism. Furthermore, Leveson criticised the Information Commissioner for failing to act robustly when it came to exercising her duties in relation to the press.

In short, if the Bill is to include a list of codes, that list should include the standards code of any approved regulator. Any such code is guaranteed to balance freedom of expression and privacy, and to be independently and effectively upheld. It would, as I say, be perverse if the Bill did not include such a code—

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 7:15 pm, 13th December 2017

I am grateful to the noble Lord, Lord Low, for giving way. I rise to answer the question that he put to the noble Lord, Lord Pannick, on what he thought of the amendment. Speaking for myself, I cannot think of any objection to including the Impress code as well as the IPSO code. In my speech, I did not say anything about the IPSO code because I thought it was inappropriate in this debate. I have a detailed brief about that from Sir Alan Moses but I will not talk about it any more because this is not a competition between IPSO and Impress.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I am grateful to the noble Lord for that intervention, which I think supports my contention that there is nothing in the inclusion of the Impress code that strikes at the heart of press freedom.

As I was saying in concluding my remarks, it would be perverse if the Bill did not include a code such as that of Impress but one of an organisation that is not approved by the Press Recognition Panel and does not meet Leveson criteria, such as IPSO. I hope that the Government and the Minister accept that, but at the very least I hope that the Minister will be prepared to assure the House that the Government are not opposed to the Impress standards code being listed in the Bill.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I follow what the noble Lord, Lord Low, said, which is of considerable importance. In doing so, I address Amendment 55, which has not yet been spoken to by the noble Lord, Lord Stevenson. I have both an observation and suggestion to make and I would be very grateful if he could let me have his views on them.

I suggest to your Lordships that Amendment 55, as it stands, goes too far, in that it gives great power to the commissioner, who is in no way subject to parliamentary control. Given the nature of the powers to determine appropriate guidance and practice, that is undesirable, on the face of it. That said, I have considerable sympathy for the proposition that the commissioner should be involved in the formulation of policy and in identifying amendments to the list. One way to address that is as follows: under subsection (6) of the clause we are dealing with, the Secretary of State has a power to make regulations that amend the list, which is itself subject to affirmative procedure. If we were minded to do so, we could make it explicit that the power exercised by the Secretary of State under subsection (6) should be used after representations made to him or her by the commissioner, and furthermore that, in any event and at all times, the power to amend the regulation should be used after consultation with the commissioner. If we went down this road, it would enable the commissioner to play a proactive role in shaping a very important list; in any event, it would involve the commissioner in the policy-making process.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

It may have gone unnoticed in Committee, because we considered no fewer than 432 amendments, but I say this in the context of Amendment 55—to be spoken to by the noble Lord, Lord Stevenson—and in the light of observations made by the noble Viscount, Lord Hailsham: the then Amendment 181 amended Clause 169 to ensure that when regulations are made to amend the list of codes of practice, the Secretary of State must consult the Information Commissioner.

Photo of Viscount Hailsham Viscount Hailsham Conservative

That is extremely helpful and I am grateful to hear it, but I do not think that it says that the commissioner can be proactive in the regulation. The point made by my noble and learned friend is that the Secretary of State must involve the commissioner in discussions but it does not make it explicit that the commissioner can be proactive by making suggestions to the amendment of the list. My suggestions are twofold and I would be grateful if the noble Lord, Lord Stevenson, would share his thoughts on the matter.

Photo of Baroness Cavendish of Little Venice Baroness Cavendish of Little Venice Conservative

My Lords, I want to briefly bring us back to Amendment 50A of the noble Baroness, Lady Hollins. I declare an interest; I have been a journalist for about 15 years and have won several prizes for investigative journalism. One of my campaigns, which exposed miscarriages of justice, led to the Blair Government changing the law in 2009. Looking back on that case—and the Rochdale and Rotherham sexual harassment and grooming cases, which I was involved in as part of the investigative team at the Times—I feel that the use of “necessary”, which the noble Baroness is suggesting, is fraught with more difficulty than it may appear.

It is perhaps difficult to understand quite how difficult it is for journalists to do some of the deep, preparatory investigative work that results in some of these exposés. The vested interests arranged against the exposure of some of these cases are phenomenal; the legal remedies available are quite significant. Indeed, I think someone mentioned earlier that, only two years ago, the Sunday Times was faced with the threat of an injunction and civil proceedings for the publication of what turned out to be completely accurate information about doping among gold-medal athletes. That paper was protected under the Data Protection Act 1998, but the cases were brought under that Act. It is important to remember that journalists do not have the entirely free hand that we perhaps imagine.

I find myself standing in this Chamber, which has historically been a bastion of freedom, and looking at a series of largely well-meaning amendments that would amount to a shift towards presumption of privacy, which would protect precisely the kind of vested interests that I have spent part of my career challenging. I come back to the point about necessity: as the noble Lord, Lord Pannick, suggested earlier, it is extremely difficult to understand, as a journalist, how this would work in practice. The definition of what is necessary seems extremely difficult. I foresee that that would be a gift to those who have an interest in preventing the investigation and publication of their activities—some of whom would be perfectly innocent and some of whom would be precisely the kind of people that this House would want to expose, I hope—because it would enable them to debate the definition of necessity and to delay investigation, potentially stopping it altogether. Delay is an enormously powerful weapon—do not underestimate it—when people are up against newspapers; do not forget about local newspapers, which sometimes have extremely limited resources.

I am deeply worried about the wording of the amendment; I would prefer the House to support Amendment 50.

Photo of Lord McNally Lord McNally Liberal Democrat

We need to get to the Front Benches soon. I am sorry but I think the Times newspaper has had quite a good run tonight.

Oh!

Photo of Lord McNally Lord McNally Liberal Democrat

We have heard from journalists, we have heard from lawyers—come on.

Before we hear from the Front Benches, I want to say that it would be perfectly good to have this debate and listen to all these distinguished speakers if we were looking at a few tweaks to the 1998 Act, which otherwise had run perfectly smoothly, and if in the 20 years since then we had seen nothing to perturb us about how the law was working. The truth is that we are operating against the background of Lord Leveson’s report. I have the greatest respect for the noble and learned Lord, Lord Brown, my noble friend Lord Lester and the noble Lord, Lord Pannick, as all three of them know, but I also have the greatest respect for Lord Leveson. I saw him week after week in one of the most public examinations of how the law was working that we have ever seen in this country. It revealed abuse on an industrial scale by many of the people who have spoken about their profession tonight.

It is no use saying that we have to have a law only for the kinds of things that the noble Baroness, Lady Cavendish, does. I know the noble Lord, Lord Pannick, was only joking when he said that we move on to debate free speech, but I resent the idea that you have to be a lawyer or a journalist to believe in free speech. Every part of my fibre in all my career has been on the side of free speech and to defend it, as have many others, such as the noble Lord, Lord Prescott. It really is no good pretending that there is not a real problem to solve and then say that the Government have got us to the right place.

The truth is that a lot of the problems are of the Government’s making. They implied that they were going to get rid of Leveson 2. There was an announcement about what is happening to Leveson 2, which is now being kicked forward to next year. Putting IPSO in was a needless provocation, as the noble Lord, Lord Low, commented. What has not been caught by the debate is that the kind of thing the noble Baroness, Lady Hollins, puts with tremendous dignity and great passion represents not the Max Mosleys, or even the John Prescotts or the Queen, but lots of ordinary citizens abused by the media during this period who still feel they have had no closure for what they suffered. Indeed, as the noble Lord, Lord Prescott, indicated, some of those abuses may still continue. Whatever the vote tonight, the House, the Government and the noble Lord, Lord Black, and his friends have to realise that those little people, who still feel they have not had justice, will continue this fight. They will have support in this House and the other place. To my mind, it would be far more sensible if the Government and the media took part in a proper dialogue—

Photo of Viscount Hailsham Viscount Hailsham Conservative 7:30 pm, 13th December 2017

Does the noble Lord accept that the amendment he supports will tilt the argument against free speech and chill the ability of the press to publish?

Photo of Lord McNally Lord McNally Liberal Democrat

No. The amendment I have put forward is exactly the finding of Leveson—that what was wrong in the 1998 Act was an imbalance the wrong way. That is what Leveson found and suggested that Parliament put right. There may be many other ways of putting it right, but to say that what Leveson did was somehow to be totally ignored ignores not only Leveson itself but the findings and support of both Houses of Parliament. Since Leveson and the setting up of the royal charter—I was the Minister involved with that—nobody could have tried more than that set of Ministers to find a solution that was as far away from state regulation as we could possibly find.

Photo of Lord McNally Lord McNally Liberal Democrat

I am trying to wind up, but carry on.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

The noble Lord said that Leveson found that the press had abused its position and looked to Parliament to put it right. Would the noble Lord not agree that Parliament has put it right with Section 40 of the Crime and Courts Act 2013, but that the Government have not given effect to that provision?

Photo of Lord McNally Lord McNally Liberal Democrat

I am grateful for that accurate intervention. The noble Lord, Lord Berkeley, asks from a sedentary position what the answer is. The noble Lord, Lord Low, is right: the Government have not gone ahead with Section 40. The Government have sat on their hands. All I will say in conclusion is that the media can roll out all their lawyers and journalists, and they can write their editorials suggesting that we are attacking press freedom: they know it is rubbish and not true. Unless the Government deal with the real hurt, problem and exposed faults of the media, this will continue. A sensible, smart Government —one advised by the noble and learned Lord, Lord Keen —would deal with these problems now rather than let it drag on into 2018, as it will. We will vote for the amendment.

Photo of Lord Finkelstein Lord Finkelstein Conservative

I hope the noble Lord, Lord McNally, will forgive me, but I feel his comments require response. I recall at a university meeting when we had to discuss rules for debate, one student started a speech with, “I’m a liberal, but I’m against free speech”. I notice we have a very large turnout of both small “l” and big “L” liberals in the House, which usually suggests we are about to ban something. I am very sorry to be on the other side from the noble Lord, Lord McNally, who has been my inspiration and mentor for many years, but I have to disagree with him on this.

First, the proponents of these various amendments argue that these changes are not an attack on free speech but, in practice, they are. They tilt the balance against investigative journalism, scrutiny of the powerful and legitimate inquiry. The high bar introduced of necessity would have a chilling effect for anyone who has worked on practical investigations. What will happen is not so much that the law will be used, but that it will never be used because investigations will not take place.

Secondly, the proponents say that this is not about state regulation of the media, but it is. It will be done in two ways. The Information Commissioner will end up with so much power that he or she will become a press regulator whether or not he or she wishes to. That would be the impact of Amendment 55. At the same time, newspapers will be pulled against their will into Impress, which has been the burden of several remarks in this debate. That is also an aim of Amendment 55. It is simply nonsense to say that all that is being sought is voluntary self-regulation when the failure to volunteer or regulate in a state-approved way and be licensed by a state body is backed up by repeated attempts to penalise and punish, as these amendments would do.

Thirdly, the proponents say that all we will be doing is controlling behaviour, not content. I am afraid that this is wilfully naive. Impress has been named as a regulator. That choice by the panel is instructive. The behaviour of the staff and board of Impress, the body the panel has approved, shows quite clearly the agenda being followed. Its chief executive has been sharing views such as:

John Lewis is bringing its name into disrepute by advertising in a Neo-Fascist rag”, and:

“I do like @StopFundingHate’s campaign to defund racist media”.

This means it cannot claim to be the independent regulator the noble Lord, Lord Low, talked about. This is apparently acceptable as charter-approved behaviour, yet some noble Lords are critical that national newspapers are suspicious of the charter and fear Impress.

My fourth point is very important because the noble Lord, Lord McNally, said this in Committee. I respected it and listened to it. He said that newspapers have “got away with it”. This is not the case. People went to jail, newspapers closed and the regulatory system changed utterly. Those of us working in the industry all know and agree that there has to be change. Anyone who thinks that there has not been has not read a newspaper or been in a newspaper office since the scandal broke. I respect and understand the pressure for change, but you have to take “yes” for an answer.

Finally, there is a suggestion that the public are crying out for further regulation and more inquiries. People who advance this argument must have been in different constituencies from me. The attempt to hijack Bills to bully the press into compliance is a diversion from the public interest and there is no public pressure for it. Of course, it is right to insist on high standards of behaviour, but to introduce amendments designed to help powerful people keep secrets and to make free publication harder is an odd position for liberals. All I ask is that we do not remove protections in Britain enjoyed by Europeans. Normally, this rallying cry is very effective in this House. Let us hope that it is today.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords)

My Lords, I had better deal with Amendment 55, which is in my name and that of my noble friend Lord Kennedy. I am loath to do so at any length, so I simply say that it will be answered by the Minister when he responds. He has partially given me the answer and it would be wrong for me to anticipate the rest of it. I reassure him that I do not intend to press that amendment.

This debate is not about free speech; it is the latest exchange in a long-running debate on how in a democratic society we enshrine the press’s freedom to publish as it sees fit, to root out the culture of abuse, illegality and criminality which has for too long involved all the newspapers at some point or other, and to make sure that victims can get effective redress when such abuse happens. We should not lose sight of those cardinal aims.

If the House believes that everything in the garden is rosy, as the previous speaker tried to persuade us, we can of course do nothing and simply allow the Data Protection Bill to go forward as amended. I agree that the Minister has moved a long way and agree with the noble Lord, Lord Black, that we could now rely on the processes and procedures that have worked so well since 1998—for nearly 20 years. They could be allowed to continue, because they are tried and trusted and seem to do most of what we require.

But it is not like that. One could not listen to my noble friend Lord Prescott and the noble Lord, Lord McNally, for any length of time without feeling that there is still a canker. Something needs to be cut out of what we currently do and we are failing as a House if we do not do what we must to get this right. We have a lot of problems. We had a cross-party agreement; that has gone. We have let down the victims grievously time and again. We are unable to discuss this without accusations of a ridiculous nature being thrown at us about our intentions and processes. We need to do this properly; we need to do it coolly and with some consideration. We need evidence of the changes that are affecting the press. Is it true that the traditional press as we know it is going down the tube? Is it true that fake news, other news sources and the other things that our children are reading and reporting to us will destroy our understanding in a democratic society of what it is to be informed about the way things are done? Will we lose the extremely good points made by the noble Baroness, Lady Cavendish, who said that she was an investigative journalist and proud of her record, which is exemplary? We want that to continue, but we do not want people such as the noble Baroness, Lady Hollins, to suffer as a result of it. We have to be mature about this; we have to get it right.

I have an amendment, Amendment 165, to be taken on Wednesday 10 January—buy your tickets now—which will rehash a lot of our discussion today. It is focused on running a proper inquiry into what needs to happen now to deal maturely with the issues which the press does not wish to be regulated. It tries to find a way forward, to investigate the illegality of the past and learn lessons from it. Above all, it seeks to get a handle on this whole issue and come forward with a proper set of recommendations that we can implement. I hope that the House will look at that carefully when we come to it. In the interim, my advice to the noble Baroness, Lady Hollins, whom I admire for the fantastic work she is doing and I want to be with her on it, is to withdraw her amendment now and live to fight another day on 10 January.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, the noble Baroness, Lady Hollins, has reminded us a number of times in this House of the need for suitable press regulation, and she has some interesting arguments. I am grateful for the time she took earlier this week to meet me and explain her perspective and concerns. However, the position remains that the Government cannot accept her Amendment 50A. The Government support objective, high-quality journalism and a free press. We are committed to ensuring there is a sustainable, effective business model for high-quality media. Of course, we also need a fair system and this Bill is designed to strike a fair balance between individual privacy rights and the right to freedom of expression. The noble Lords, Lord Lester and Lord Pannick, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, have just alluded to the requirement in law for us to maintain that balance. I do not seek to repeat that, but I gladly adopt the observations they made about the need for balance in the context of convention rights with regard to privacy and freedom of expression.

The noble Lord, Lord Stevenson, suggested that we approach this in a cool and considered way. I entirely endorse that suggestion. He has told us several times in recent weeks that he believes that the data protection regime that applies to the press, as found in the 1998 Act, has worked well. We agree. If we maintain that common bond, I hope that noble Lords will understand why we cannot accept the amendments that have been proposed.

Amendment 50A would amend the special purposes exemption so as to make it available only where the processing of data is necessary for publication. The noble Baroness, Lady Cavendish, and the noble Lord, Lord Finkelstein, have both made clear why that would be so intrusive on investigative journalism. “Necessary” is a powerful word where it appears in an Act of Parliament. In our view, it would be effectively destructive of journalistic freedom.

Furthermore, Amendment 50A would limit the exemption to where the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication. This shifts the weighting against the right of freedom of expression. We believe that the existing balance is right, as expressed in the 1998 Act. If we tamper with it, information that is in the public interest will be buried due to the data protection regime that is in place. That is not how a free press operates. The special importance of the public interest in the freedom of expression is explicitly stated in sub-paragraph (3) of paragraph 24 of Schedule 2. One cannot read that alongside Amendment 50A and make sense of it; it is as simple as that. The two pull against each other.

I believe that the noble Lord, Lord Stevenson, would agree that the balance of rights achieved in the 1998 Act is fair. Against that background, I come on to look at the other amendments. The noble Lord has indicated that he will not press Amendment 55. I make two points with regard to that which touch on matters addressed also by the noble Lord, Lord Low. First, there is now an amendment that introduces the requirement to consult the Information Commissioner. Over and above that, Clause 113(3) gives the commissioner the duty to advise government and the power to give opinions on her own initiative, so that is already covered by the Bill.

The noble Lord, Lord Low, spoke to Amendment 58 on behalf of the noble Baroness, Lady O’Neill. I am not sure whether it is intentional or accidental, but the amendment would entirely cut out the commissioner from the process of approving codes. That is simply not an appropriate way forward. While it is true that any approved regulator has, by definition, met the criteria set out in the royal charter on press regulation, it does not necessarily equate to meeting the standards required by the Information Commissioner regarding balancing privacy with freedom of expression. The Information Commissioner has to be in that loop, if I can put it that way. Nobody is excluding the Impress code. The three codes which appear in the schedules of the present Bill are those which appear in the 1998 Act and they have worked well. People have referred to the IPSA code. We have taken out reference to IPSA; it was inappropriate, as I acknowledged when speaking to the government amendment. It is the Editors’ Code of Practice. Impress has contacted the Government about its own code and sought to put it before them. In due course the Government will have to address that. There is a regulatory regime and that will involve the Information Commissioner again. It is simply a matter of taking that road in order to determine, at the end of the day, what codes are appropriate and what codes are not. It appears to me that while some may feel that this straightforward set of provisions are being hijacked for an ulterior purpose, I can understand what drives people in this context: it is a concern to see a suitable outcome, not only for the press but for the individual. We recognise the importance of that balance.

The noble Lord, Lord Stevenson, alluded to an amendment he was advertising for the beginning of next year by which this debate can be taken forward, but it is not in the context of the present proposed amendments. I am obliged to the noble Lord for agreeing with me on that. I therefore urge noble Lords not to press these amendments.

Photo of Lord Elton Lord Elton Conservative 7:45 pm, 13th December 2017

The noble Lord, Lord Low, in an intervention on the noble Lord, Lord McNally, referred to a provision, the name of which I do not recall. They both agreed that that, if implemented by the Government, would resolve the problem. Can the Minister say what the position is on that?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

It would not necessarily resolve any problem. As noble Lords may be aware, we have consulted on the question of Section 40 and the second part of the Leveson inquiry and there will in due course be a report upon that consultation. I notice that the noble Lord, Lord Stevenson, has assisted my lip-reading by saying “soon”. He may be aware that a letter was recently sent by the Secretary of State to the Committee with regard to the timing of that report. If not, I can bring that news to him. Sir Brian Leveson himself has indicated that he would like the opportunity to consider the responses to the consultation and that will take a little time—of course, that has to be accommodated.

Photo of Lord Puttnam Lord Puttnam Labour

Will the Minister do the House an enormous favour and make it clear that this not a debate between people who favour press freedom and people who are opposed to press freedom? There is nobody in your Lordships’ House who is opposed to press freedom. It is very important for all our sakes that this is made absolutely clear.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I hope that I indicated that in my earlier comments but I make it clear that we are all concerned with maintaining the very delicate balance between the right to privacy and press freedom.

Amendment 50 agreed.

Amendment 50A

Tabled by Baroness Hollins

50A: Schedule 2, page 142, line 1, leave out sub-paragraph (2) and insert—“(2) Sub-paragraph (2A) applies to the processing of personal data carried out for the special purposes if—(a) the processing of the personal data is necessary for the future or continuing publication by a person of journalistic, academic, artistic or literary material,(b) the controller reasonably believes that the publication of the material would be in the public interest,(c) the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication.(2A) The listed GDPR provisions do not apply to the extent that the controller reasonably believes that the application of those provisions would be incompatible with the special purposes.”

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, I want to take a moment to respond to some points made by noble Lords who do not support my amendment. I suggest that they protest too much. Some noble Lords have suggested that the necessary test is too high, but I stress that the amendment simply requires an intention to publish, not a requirement to publish. I also understand that in 1998 the noble Lord, Lord Lester, argued that the provision “undertaken with a view” was too speculative. He did not support it at that time, so it is surprising that he opposes my amendment today.

My advice from eminent lawyers is that these amendments do not in any way breach human rights law. Instead, they reinstate an equal balance between freedom of speech and personal privacy. Nor is there any reason why, for example, this amendment would require footage from Hillsborough to be destroyed. It would stop newspapers hanging on to data illegally for any unspecified period. That is just one of the good things this amendment would do. The amendments would not allow debate on necessity from the subject of a planned story. The subject would not know about it, and many journalists have commended the importance of these amendments.

I have thought about these amendments. I think there has been some wilful misrepresentation of the role of the press recognition panel. None of the amendments in this or the later group would favour Impress over any other recognised independent regulator. The noble Lord, Lord Black, implied in Committee that he believed that IPSO would meet the Leveson criteria if it applied to the press recognition panel for approval. It could move towards recognition, so to say that this is about trying to favour Impress is nonsense.

I remind the House that my family was subject to data fishing trips with no genuine public interest. Has the media changed its behaviour? I suggest not and I give a couple of quick examples. IPSO is not the game changer that has been suggested. It is still not a very clean game. I remind noble Lords of a couple of front page code breaches followed by tiny footnotes for a correction with no equivalent prominence.

“1 in 5 Brit Muslims’ sympathy for jihadis”.

“Queen backs Brexit”. These reflect some of the most important topics being debated in the country today, yet they are not corrected adequately. Or the Mirror front page:

“Ebola terror as passenger dies at Gatwick”.

In fact, nobody had Ebola, there was no terror because nobody knew about it and it was not at Gatwick. The Mirror printed a tiny apology and IPSO did nothing about it. Or the lady who lost a huge amount of weight and agreed to a feature in a local magazine which described her successful weight loss. She said she had had to shower before she lost weight because she could not fit in the bath. The Daily Star picked up the story:

“Too fat to wash! Grubby gran who weighed 27 stone didn’t bath for 20 years”.

This was not true, was not the story and IPSO did nothing.

I have listened to the Government’s arguments. All that Amendment 50A does is to raise the bar for processing data to be “necessary” for an intended future publication. I am an academic myself. I argue that the ethical standard of the processing of personal data being necessary is a standard that is already in place in our universities. These are Lord Justice Leveson’s recommendations. He considered that the Data Protection Act was not in balance. I think that it is right that the public’s privacy rights and publishers’ free expression rights are properly balanced to protect the best of both. We will not make progress in achieving this balance by some of the hyperbole we have seen in the press and in the House today about these amendments. We will make progress by listening to all sides, considering the arguments and coming to a reasoned conclusion. That is what Sir Brian Leveson was appointed to do.

I have heard the suggestion of noble Lords that it is not the right moment to vote on this amendment and that there is going to be an opportunity to debate these issues further in the new year, by which time, perhaps, we will have the result of the consultation that was begun as an urgent 10-week consultation a year ago, on the day that a previous amendment in a similar vein was to be voted on in the other place. We have still not got the report from that consultation. I think I want to wait to see what is going to emerge from the consultation and I hope that it will be forthcoming before we reach Third Reading.

Amendment 50A not moved.

Consideration on Report adjourned until not before 8.58 pm.