Data Protection Bill [HL] - Commons Amendments

Part of the debate – in the House of Lords at 4:00 pm on 14th May 2018.

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Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 4:00 pm, 14th May 2018

My Lords, the amendments in this group concern the regulation of the press and the processing of personal data for the purposes of journalism. First I will address Clauses 142, 168 and 169, which were added to the Bill by this House without the support of the Government, and which the Commons amendments now seek to remove. These clauses, and the issues they pertain to, have been subject to a great deal of passionate debate in both this place and the other. Since we previously discussed the Bill in this House, the Government have also published their response to the consultation on Section 40 and the future of the Leveson inquiry, to which these amendments relate, and have outlined their position in detail on these matters.

The Bill is about data protection and, as previously observed by the noble Lord, Lord Stevenson, during our last debate, it is therefore not the right forum for a debate on press regulation in the future. I hope to demonstrate that, even if it were, these clauses are simply not the solution to the problems faced by the press today to ensure that it is free, fair and sustainable.

Commons Amendments 106, 107 and 141 would remove Clauses 168 and 169, which were added to the Bill by this House. As they stand, these clauses would essentially introduce the provisions contained in Sections 40 and 42 of the Crime and Courts Act 2013, although they would apply only to breaches of data protection law. They would mean that any publication not regulated by Impress would be at risk of having to pay the legal costs for any complaint against them, whether they won or lost.

As I have already said, since we previously discussed the Bill in this House, the Government have published their response to the consultation on the future of Section 40. By way of update, then, I can tell the House that some 79% of direct responses favoured full repeal of Section 40, compared to just 7% which favoured full commencement. Many respondents cited concerns about the “chilling effect” that Section 40 would have on the freedom of the press. Andrew Norfolk, who uncovered the Rotherham child abuse scandal, has said that Section 40 would have made it “near impossible” to do his job. These clauses would also impose further financial burdens on already struggling local and national publishers, with 200 local newspapers having closed since 2005.

I recognise, however, that the primary motivation behind this House originally inserting these clauses was to ensure that victims of press intrusion would have access to adequate redress. I can reassure your Lordships that enormous progress has been made on this front—some of it since the Bill left this House—making these cost provisions no longer necessary or proportionate.

In 2014, the old Press Complaints Commission was replaced by the Independent Press Standards Organisation. IPSO follows many of the principles set out in Sir Brian’s report and is fundamentally different to the PCC. It has a legally binding contract with the publications it regulates, which means that, if a publication fails to comply with IPSO’s orders, such as publishing a front page correction, it can face court action.

Earlier this month, IPSO announced that it would create a compulsory low-cost arbitration scheme under which claims can be made for as little as £50, and all the major national newspapers that are IPSO members have signed up to it. This means that someone who has been wronged by a newspaper can, for the first time, ask for arbitration of their claim—and the newspaper cannot refuse. With the introduction of this scheme, IPSO has met one of the most important recommendations of the Leveson report and has ensured that ordinary people have a fair legal remedy that is quick and inexpensive. As Opposition noble Lords have previously acknowledged, once IPSO has met the majority of the standards for recognition established by the Press Recognition Panel, it is sensible to look afresh at this complex set of interrelated measures of inducements and penalties. Now is that time.

Amendments made by the other place would go even further in creating a strong data protection regime for journalists. Commons Amendment 108 would require the Information Commissioner to publish information on how people can get redress from the media. This plain-English guidance means that anyone with a complaint will know how to navigate the system. Commons Amendments 55, 56, 58 and 61 would require the Information Commissioner to create a statutory code of practice for journalists, setting out standards around data protection. When investigating a breach of data protection law, the commissioner would have to decide whether a journalist acted reasonably. When making this judgment, a failure to comply with the statutory code would weigh against the journalist. Taken together, these amendments would mean that Britain would have the most robust system of redress from press intrusion, accessible to all, that it has ever had—and it could be achieved without the chilling effect on investigative journalism that Section 40 would bring.

That brings me to Commons Amendment 62, which would remove Clause 142 from the Bill. Clause 142 requires the Government to, in effect, reopen the Leveson inquiry—but, again, only in relation to data protection. The first Leveson inquiry lasted for more than a year and heard evidence from more than 300 people, including journalists, editors and victims. It was a diligent and thorough examination of the culture, practices and ethics of our press, in response to illegal and improper press intrusion. It cost about £5.4 million of public money. An inquiry pursuant to Clause 142 could be expected to place a similar burden on the public purse.

Of course, there were far too many cases of terrible behaviour. Having heard the experiences of some noble Lords in this House—in particular, the impassioned contributions from the noble Baroness Lady Hollins—I can begin to understand the impact that they had. However, since this House last debated this clause, there have been at least four significant developments in the media regulatory landscape.

First, as I have said, IPSO has also launched a compulsory arbitration scheme to which most major national newspapers have signed up. This will ensure that victims have access to fair and affordable redress like never before. Secondly, as set out last week by my right honourable friend the Secretary of State, the Government have asked Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to undertake a new review to look at how police forces are adhering to new media relations guidance, as recommended by Sir Brian Leveson. Thirdly, we have established the Cairncross review, which will address the challenge of how we can ensure a sustainable future for high-quality journalism that can hold the powerful to account.

The current business model of the press is facing fundamental challenges, and the rise of disinformation and fake news is putting at considerable risk the foundations on which our democratic processes lie. A series of round-table discussions with industry experts is already under way, as well as visits to specific regions of the United Kingdom.

Finally, the Government have proposed additional amendments to ensure that the press has changed it ways and can be held to account in the future. Commons Amendment 109 would require the Information Commissioner to conduct a statutory review of media compliance with the new law over the next four years.

A free and vibrant media is vital to democratic discourse, and we need to tackle the challenges that threaten it. I humbly submit that these developments embody exactly the kind of proportionate solutions that we have been seeking and that we need. High-quality news provision is vital to our society and democracy. Over many centuries our press has held the powerful to account and been free to report and investigate without fear or favour. These principles underpin our democracy and are integral to the freedoms of our nation. Clauses 142, 168 and 169 would derail this Bill and harm the vital work that we are doing to strengthen the future of high-quality journalism in this country. The elected Chamber has debated them and rejected them, and I urge noble Lords to do likewise. I beg to move.