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House of Lords Hansard
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Data Protection Bill [HL]
21 May 2018
Volume 791

Commons Amendments

Motion A

Moved by

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That this House do not insist on its Amendment 62B proposed instead of the words left out by Commons Amendment 62, to which the Commons have disagreed, and do agree with the Commons in their Amendments 62BZA to 62BA and 62BC to 62BF in lieu of Amendment 62B.

COMMONS DISAGREEMENT AND AMENDMENTS IN LIEU

The Commons disagree to Lords Amendment 62B proposed instead of the words left out of the Bill by Commons Amendment 62 but propose amendments 62BZA to 62BA to Clause (Review of processing of personal data for the purposes of journalism) inserted by Commons Amendment 109 and amendments 62BC to 62BF to the Bill in lieu of the Lords Amendment—

109: Insert the following new Clause—

“Review of processing of personal data for the purposes of journalism

(1) The Commissioner must—

4 (a) review the extent to which the processing of personal data for the purposes of journalism complied with the data protection legislation during the review period,

(b) prepare a report of the review, and

(c) submit the report to the Secretary of State.

9 (2) “The review period” means the period of 4 years beginning with the day on which Chapter 2 10 of Part 2 of this Act comes into force.

11 (3) The Commissioner must—

(a) start the review within the period of 6 months beginning when the review period ends, and

(b) submit the report to the Secretary of State before the end of the period of 18 months beginning when the Commissioner started the review.

(4) The report must include consideration of the extent of compliance (as described in subsection (1)(a)) in each part of the United Kingdom.

(5) The Secretary of State must—

(a) lay the report before Parliament, and

(b) send a copy of the report to—

(i) the Scottish Ministers,

(ii) the Welsh Ministers, and

24 (iii) the Executive Office in Northern Ireland.”

62BZA: Line 4, leave out paragraph (a) and insert—

“(a) review the extent to which, during each review period, the processing of personal data for the purposes of journalism complied with—

(i) the data protection legislation, and

(ii) good practice in the processing of personal data for the purposes of journalism,”

62BZB: Line 9, leave out ““The review period” means” and insert “In this section— “review period” means—

(a) ”

62BZC: Line 10, at end insert “and

(b) each subsequent period of 5 years beginning with the day after the day on which the previous review period ended;

“good practice in the processing of personal data for the purposes of journalism” has the same meaning as in section (Data protection and journalism code).”

62BZD: Line 11, leave out subsection (3) and insert—

“(3) The Commissioner must start a review under this section, in respect of a review period, within the period of 6 months beginning when the review period ends.

(3A) The Commissioner must submit the report of a review under this section to the Secretary of State—

(a) in the case of the first review, before the end of the period of 18 months beginning when the Commissioner started the review, and

(b) in the case of each subsequent review, before the end of the period of 12 months beginning when the Commissioner started the review.”

62BA: Line 24, at end insert—

“( ) Schedule (Review of processing of personal data for the purposes of journalism) makes further provision for the purposes of the review under this section.”

62BC: After Clause 176, insert the following new Clause—

“Effectiveness of the media’s dispute resolution procedures

(1) The Secretary of State must, before the end of each review period, lay before Parliament a report produced by the Secretary of State or an appropriate person on—

(a) the use of relevant alternative dispute resolution procedures, during that period, in cases involving a failure, or alleged failure, by a relevant media organisation to comply with the data protection legislation, and

(b) the effectiveness of those procedures in such cases.

(2) In this section—

“appropriate person” means a person who the Secretary of State considers has appropriate experience and skills to produce a report described in subsection (1);

“relevant alternative dispute resolution procedures” means alternative dispute resolution procedures provided by persons who produce or enforce codes of practice for relevant media organisations;

“relevant media organisation” means a body or other organisation whose activities consist of or include journalism, other than a broadcaster;

“review period” means—

(a) the period of 3 years beginning when this Act is passed, and

(b) each subsequent period of 3 years.

(3) The Secretary of State must send a copy of the report to—

(a) the Scottish Ministers,

(b) the Welsh Ministers, and

(c) the Executive Office in Northern Ireland.”

62BD: Page 120, line 32, leave out “subsection (2)” and insert “subsections (2) and (2A)”

62BE: Page 121, line 4, at end insert—

“(2A) The following provisions come into force at the end of the period of 2 months beginning when this Act is passed—

(a) section (Data protection and journalism code);

(b) sections 125, 126 and 127, so far as they relate to a code prepared under section (Data protection and journalism code);

(c) section (Guidance about how to seek redress against media organisations); (d) section (Review of processing of personal data for the purposes of journalism) and Schedule (Review of processing of personal data for the purposes of journalism);

(e) section (Effectiveness of the media’s dispute resolution procedures).”

62BF: After Schedule 16, insert the following new Schedule—

“REVIEW OF PROCESSING OF PERSONAL DATA FOR THE PURPOSES OF JOURNALISM

Interpretation

1 In this Schedule—

“relevant period” means—

(a) the period of 18 months beginning when the Commissioner starts the first review under section (Review of processing of personal data for the purposes of journalism), and

(b) the period of 12 months beginning when the Commissioner starts a subsequent review under that section;

“the relevant review”, in relation to a relevant period, means the review under section (Review of processing of personal data for the purposes of journalism) which the Commissioner must produce a report about by the end of that period.

Information notices

2 (1) This paragraph applies where the Commissioner gives an information notice during a relevant period.

(2) If the information notice—

(a) states that, in the Commissioner’s opinion, the information is required for the purposes of the relevant review, and

(b) gives the Commissioner’s reasons for reaching that opinion, subsections (5) and (6) of section 143 do not apply but the notice must not require the information to be provided before the end of the period of 24 hours beginning when the notice is given.

Assessment notices

3 (1) Sub-paragraph (2) applies where the Commissioner gives an assessment notice to a person during a relevant period.

(2) If the assessment notice—

(a) states that, in the Commissioner’s opinion, it is necessary for the controller or processor to comply with a requirement in the notice for the purposes of the relevant review, and

(b) gives the Commissioner’s reasons for reaching that opinion, subsections (6) and (7) of section 146 do not apply but the notice must not require the controller or processor to comply with the requirement before the end of the period of 7 days beginning when the notice is given.

(3) During a relevant period, section 147 has effect as if for subsection (5) there were substituted—

“(5) The Commissioner may not give a controller or processor an assessment notice with respect to the processing of personal data for the special purposes unless a determination under section 174 with respect to the data or the processing has taken effect.”

Applications in respect of urgent notices

4 Section (Applications in respect of urgent notices) applies where an information notice or assessment notice contains a statement under paragraph 2(2)(a) or 3(2)(a) as it applies where such a notice contains a statement under section 143(7)(a) or 146(8)(a).”

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Noble Lords will recall that Amendment 62B would require the establishment of an inquiry into allegations of data protection breaches committed by or on behalf of national news publishers and other media organisations. This House has debated the necessity and proportionality of such an inquiry on several occasions during the passage of the Bill. It has been an informative and sometimes impassioned debate as noble Lords from all sides of the House have brought their experiences to bear, and the Government have being listening throughout.

The last time that we debated this topic, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Hollins, asked about the past. Before I get into the substance of my speech, I think I can offer some reassurance on that point. When the Information Commissioner undertakes the review described in Commons Amendment 108, she will be reviewing the extent to which the processing of personal data for the purposes of journalism complied with data protection law in the next four years; as my right honourable friend the Secretary of State has said, we must look forward, not back. Her hands are not tied, though, and the commissioner’s existing enforcement powers are not time-limited. Indeed, compliance with the new law and compliance with the old law are deeply intertwined. That is why the Commons sent us 20 pages of amendments on transitional provision.

Most of what we have heard about relates to wrongs in the past that were illegal. If at some future date new evidence came to light that showed that the press were acting in breach of the law, the Government would expect the relevant enforcement bodies, including the Information Commissioner’s Office, to investigate and possible sanctions to follow. The Government are clear that what was illegal then remains illegal now.

There is no lacuna and no amnesty. Anyone who thinks that that is what the Government are proposing is quite wrong. What we are doing, however, is providing the institutions we need for the challenges of the future. 

We have given the Bill a thorough examination. My noble friend Lord Ashton of Hyde has reminded us several times of the number of amendments that have been secured, not just on media regulation but on issues that impact on everyone. This is a good Bill, but we have now, I suggest, run out of road. The question now is whether the Bill is good enough to justify passing it into law.

To assess that requires two things. First, it requires knowledge of the Government’s proposed way forward on the issues we asked the other place to reconsider last week. Secondly, it requires knowledge of what would happen if this House did not pass the Bill which is before it today.

On the first point, I have already mentioned the Information Commissioner’s review of compliance with data protection law. Since we last debated the merits of having a review, the Government have further proposed that that should not be a one-off event but a recurring fixture. We have also given her additional powers to make sure that her review is as comprehensive and robust as it can be.

Between now and then, the commissioner will produce guidance for data subjects seeking redress and a code of practice for those who process data for the purposes of journalism. My right honourable friend the Secretary of State will report on the availability and effectiveness of alternative dispute resolution procedures, including IPSO’s new mandatory low-cost arbitration scheme, and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services will report on police forces’ adherence to its guidance on how to interact with the media.

I am confident that, when these amendments are viewed alongside the improvements IPSO has already made to its processes and procedure, this country now has the most robust system of redress for press intrusion it has ever had, and it has achieved it without resorting to state regulation.

But noble Lords know all this already, especially if they, like the noble Lord, Lord Stevenson, watched last Wednesday’s debate in the other place. So I want to spend my remaining time on the subject of not media regulation but data protection.

The GDPR will take effect in the United Kingdom at midnight on Friday. It will do so irrespective of whether or not we are prepared for it. If we do not pass implementing legislation in the next three days, medical research will grind to a halt. The administration of justice will stutter as chambers attempt to work out whether it is preferable to breach court disclosure rules or data protection law. Sectoral regulators will have to tip off the people they are investigating. It will potentially be chaotic, and this House will be held responsible.

The noble Lord, Lord Paddick, said it well at Second Reading, when he welcomed the Bill:

“It provides the technical underpinnings that will allow the GDPR to operate in the UK both before and after Brexit … it is an enabling piece of legislation, together with the GDPR, which is absolutely necessary to allow the UK to continue to exchange data, whether it is done by businesses for commercial purposes or by law enforcement or for other reasons, once we are considered to be a third-party nation rather than a member of the European Union”.—[Official Report, 10/10/17; col. 205.]

The damage done by not passing this Bill today would be irreversible, and the only winner would be data protection lawyers.

As is quite proper, the House has asked the elected Chamber to think again about the detail of this Bill. It did so, and it has returned it to us as a Bill that is now ready to go to Her Majesty for signature. Two votes in the House of Commons in the past two weeks have come to the same conclusion. If we further delay this essential legislation, that decision will be on us.

Is this Bill good enough to pass? We are convinced that it is, and I therefore beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

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Leave out “62BC to 62BF in lieu of Amendment 62B” and insert “62BD to 62BF in lieu of Amendment 62B but do disagree with the Commons in their Amendment 62BC and do propose Amendment 62BCA in lieu—

62BCA After Clause 176, insert the following new Clause—

“Effectiveness of the media’s dispute resolution procedures

(1) The Secretary of State must, before the end of each review period, appoint an Independent Reviewer to report to the Secretary of State, before the end of each review period, about—

(a) the use of relevant alternative dispute resolution procedures during that period in cases involving actual or alleged failure by a relevant media organisation to comply with the data protection legislation, and

(b) the effectiveness of those procedures in such cases.

(2) For the purposes of subsection (1) the Independent Reviewer must be—

(a) the Press Recognition Panel (incorporated by the Royal Charter dated 3 November 2014), if it agrees to act, or

(b) otherwise, a person who is or has been a judge of the High Court, the Court of Appeal or the Supreme Court.

(3) A person reporting under subsection (1) must have regard to the Leveson Inquiry - Report into the culture, practices and ethics of the press laid before Parliament under section 26 of the Inquiries Act 2005 and in particular any relevant conclusions and recommendations.

(4) As soon as practicable after receiving a report under subsection (1), the

Secretary of State must—

(a) lay a copy before Parliament; and

(b) send a copy to the Scottish Ministers, the Welsh Ministers and the

Executive Office in Northern Ireland.

(5) In this section—

“relevant alternative dispute resolution procedures” means alternative dispute resolution procedures provided by persons who produce or enforce codes of practice for relevant media organisations;

“relevant media organisation” means a body or other organisation whose activities consist of or include journalism, other than a broadcaster;

“review period” means—

(a) the period of 3 years beginning with the date on which this Act is passed, and

(b) each subsequent period of 3 years.”

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My Lords, like Pavlov’s dog, MailOnline this morning had the headline:

“House of Lords to make extraordinary THIRD bid to curb press freedom”.

Fulfilling the ambition of a lifetime, it has a photograph of me and suitable condemnation of this amendment.

In defence of the amendment, I refer to the interesting summation that the Minister made in his speech. I will come later to his blood-curdling threats about what would happen if we were to lose the Bill. On the question of historical offences, hands are not tied, nor time-limited. What was illegal then remains illegal now. There is no amnesty. It was worth tabling this amendment to get that on the record as a reminder of where we are on past criminality in this area. What it is not, as claimed by MailOnline, is an attempt to reopen the debate.

The amendment proposes to amend the Government’s Motion, which gives the Secretary of State the task of assessing the dispute resolution procedure and arbitration schemes, adopted by non-broadcast media regulators every three years. Instead, I propose that this task should be undertaken not by a politician but an independent body—the Press Recognition Panel, which is entirely independent of political, state or industry control. It would have the added advantage of being able to assess the effectiveness of dispute resolution procedures guided by the criteria set out in the Leveson report.

In moving the amendment, let me deal with a number of accusations levelled at those who sought to amend the Bill to make it Leveson-compliant during its passage in this House. First, we were told that we were hijacking the Bill to deal with matters that had nothing to do with data protection, only for the Government to bring forward their own print media-specific amendments, not least the one on the Marshalled List today. The truth is that the line between print and online is fast disappearing. Where does the Daily Mail end and the MailOnline begin? It is no accident that many of the hundred organisations that have joined Impress are online publishers. I have often thought that if Facebook and others wanted to get ahead of the game and be really smart, they would sign up for Impress and leave IPSO as a kind of dinosaurs’ graveyard of the old print media.

Then, we had the Minister’s threat that we were putting the whole Bill and the future of data protection in jeopardy by the various amendments because, as he said, the Bill must be passed into law by 25 May. If chaos is not to reign in the data protection world, we have to give a speedy passage regardless of shortcomings. I was a business manager in this House during the coalition, and I worked for the Callaghan Government in the 1970s when they came under various pressures from this House. The truth is—and we all know it—the Government will get their business, perhaps a little bruised and with a few ministerial reputations dented, but the Bill will be delivered on time, and Ministers should stop spreading scare stories and instead treat amendments on their merits.

Then, of course, there is the Salisbury convention. We have to face the fact that the squalid deal between the press barons and the Tory party to drop Leveson 2 was squeezed into the Conservative manifesto and thus became protected by the Salisbury convention. The convention was given fresh life by the Cunningham committee, of which I was a member. So let us be clear: the Salisbury convention promises that this House will give a Second Reading to a manifesto Bill; it does not protect that Bill from scrutiny or amendment—nor is there anything wrong in asking the Commons more than once to consider this. I think I hold the record: I knocked back the Bill on Murdoch’s predatory pricing of the Times six times, and would have done so a seventh if Len Murray, my chief Labour conspirator, had not told me that enough was enough.

We know what ping-pong means—by its very name it means “more than once”. What it does not do is to make it into a kind of madrigal, whereby we know that the House of Lords is going to give up. I have said more than once that the House of Lords must retain its right to say no because, once it loses that right, it becomes a debating society, not a House of Parliament.

When I took my seat in the House in January 1996, I had the great pleasure of sharing these Benches with Hugh Cudlipp. One suggestion that I have most resented in the speeches during the passage of the Bill is that I, and others, are against the freedom of the press.

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The noble Lord appears to be making a Second Reading speech. Would he kindly pay attention to the amendment on the Order Paper?

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My Lords, I made it quite clear that I was putting the amendment in context. The noble Countess intervenes on many noble Lords on many speeches in a way that actually delays the House rather than helps it.

As suggested in my opening remarks, this is not an attack on freedom of speech of the press. I had the great pleasure of working with Hugh Cudlipp, who was editor of the Daily Mirror and responsible for that great popular newspaper, which I read avidly when growing up in the 1950s and 1960s. I was also very fond of John Junor and his hard-hitting column in the Sunday Express. I admired William Rees-Mogg for his editorial attacking the prosecution of Mick Jagger for drug offences under the headline, “Who breaks a butterfly on a wheel?” And, of course, I remember the great crusade on behalf of the Thalidomide victims by Harry Evans of the Sunday Times. I am so pleased that Harry has been at our side in this battle to see Leveson implemented.

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My Lords—

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I am 30 seconds off.

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I wanted to back up my noble friend Lady Mar, whose interventions are usually absolutely on the ball—and she is quite right this time, too.

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I am very interested in that—perhaps we can debate procedure in this House another time. I do not think I am out of order, and I am within 30 seconds of finishing a very long debate, in which a number of people have asserted some rather hurtful things about those of us who have spoken about the freedom of the press.

I went into that little bit of history, because I do not think that in 30 years’ time Paul Dacre or Kelvin MacKenzie will be spoken of in the same breath as Cudlipp or Evans, or even Junor or Rees-Mogg. The Daily Mail is said to be the Prime Minister’s favourite newspaper, yet it is the embodiment of the nasty party that she once so rightly condemned. I think Matt Hancock will regret becoming Paul Dacre’s poodle, and I think the old print media will regret not protecting themselves within the strong walls of the royal charter, as the long shadow of court judgments and the growing power of the ICO come into play. On behalf of the victims of press criminality and malpractice, I express my admiration for the noble Baroness, Lady Hollins, for ensuring that their voice has not gone unheard.

The Government will have their business, but I urge Ministers to accept this amendment as being in keeping with the arguments, which they themselves have used during the passage of the Bill, that major regulation should not be in the hands of politicians and regulators should be independent of both government and proprietors if real press freedom is to be safeguarded. In order, I beg to move.

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I have voted against a three-line whip on earlier amendments of this kind, and will do so again today on this amendment, or any others like it. I entirely agree with the Minister in all respects. The Bill is now fit for purpose and represents a fair compromise. Without making a meal of it, I regard the amendment in the name of the noble Lord, Lord McNally, and similar ones, as unnecessary regulation, unprincipled, contrary to freedom of speech and unique in the democratic world. I know of no country that is a true democracy that has anything like this. I am surprised that it should be put forward by anyone who is a Liberal Democrat.

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My Lords, I have no personal interest in this matter, one way or the other. I regret to say that the Government have behaved far less honourably throughout this matter than I would have liked. As other noble Lords have said in previous debates, they have betrayed the expectations of all those who relied on Prime Minister Cameron’s undertakings. The fact that no Government can tie the hands of their successors does not make this any less bad. They have also conducted a consultation which, with the benefit of hindsight, looks like a sham. If the Minister takes exception to that allegation, I would point to the Government having disregarded the views of the 138,000 signatories of the 38 Degrees petition. More fundamentally, as others have said, they disregarded the views of Sir Brian Leveson himself. When the Government stated that the second part of the inquiry was not necessary, Sir Brian said, in a letter dated 23 January 2018:

“I fundamentally disagree with that conclusion”.

The Government’s worst failing here consists in having made this issue party political. If they had simply enacted the Leveson recommendations in full, including Section 40 and Leveson 2, this would not have happened and it is most regrettable. I have no animus one way or the other in this matter. Initially there was almost unanimity, both in Parliament and outside, that Leveson should be appointed and his recommendations adopted, as Prime Minister Cameron said. I regret that this Government—I speak as a Conservative—have failed to do that. No doubt the Government have their reasons for behaving this way. They will be judged on that, including by the 126 university lecturers in journalism who wrote on this matter two weeks ago.

However, as other noble Lords have said, the House of Commons—the elected Chamber—has now expressed its view on this matter more than once. As the noble Lord, Lord Pannick, pointed out in an earlier debate, this matter was in the Conservative manifesto. Therefore, it is now time for this House, reluctantly, to give way.

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My Lords, I completely concur with that last sentiment. I hope we will not have a long debate this afternoon. I hope we will accept what the other place has said, and I hope we will therefore behave entirely constitutionally. I have high regard for the noble Lord, Lord McNally, and he knows that is genuine. However, I urge him, as the constitutionalist he is and I know him to be, and as the man who was such an effective spokesman for the coalition Government, to realise that we have come to the end of the road here. This House has asked the other place to think again. I did not want it to do it once more last week, but this House did, and by a fairly significant majority. However, 25 May looms, and it is important that this Bill gets on to the statute book. That does not mean that the issues raised by the noble Lord, Lord McNally, and my noble friend Lord Fairfax—in a fairly blistering opening to his speech—cannot be returned to again. Many of us have thought that this Bill was not the right one on which to hang these amendments. But again, that is over—we have had that debate. I hope now that we can proceed quickly to a decision, but that we will not need to do so in the Division Lobbies. I appeal to the noble Lord, Lord McNally, whom I regard as a friend. He said his piece very effectively, but I hope he will not press the amendment.

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My Lords, I have been proud to support the completion of the Leveson public inquiry, not just for the benefit of past victims, including my family, but mainly to prevent future victimisation. I make it quite clear that although I am disappointed, I reluctantly accept the decision of the other place that it does not wish to proceed with and complete a public inquiry. However, some of the misrepresentations about my amendment that were made in the other place were quite disappointing, and some speakers remained in denial about the continuing bad behaviour of some elements of the national media. So, to my surprise, since last week’s vote I have been approached by some Members from the other place who voted with the Government, to ask me not to give up.

Some noble Lords believe that my amendments have secured real progress in holding the press to account through the new government amendments. I have a more guarded response. I am very interested in the amendment in the name of the noble Lord, Lord McNally. It would prevent state interference in press regulation and appoint a truly independent reviewer, and would restore the place of the Press Recognition Panel—the PRP—without the Government directing it. I look forward to due consideration by the Minister of that suggestion.

What people want is an apology and a promise that it will not happen again. As a victim, a mother, a grandmother and a psychiatrist, I try to put people first. Instead, it seems that the focus is on money, with promises that the media will engage with IPSO’s low-cost arbitration scheme, which is just one of the 29 other equally important Leveson criteria for an effective regulator. In addition, it appears that the proposed review in four years’ time is being done in secret and with no clear criteria.

As always, I am willing to meet Ministers at the DCMS, IPSO and the ICO, and invite other victims to join me; and perhaps, one day, a victim-first approach will be embraced by them all. I say to the Government that despite their new provisions, they have let them get away with it again. However, now is not the time to press this further; rather, it is a time to watch and wait.

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My Lords, Amendment A3 in my name is an amendment to Motion A. I will speak to it now although it will be formally moved later.

I want to make two points, the first of which is to explain the purpose of my Amendment A3. Before I do so, however, I want to take up what the noble Lord, Lord, Cormack, said. He begged the noble Lord, Lord McNally, to withdraw his amendment, a point which the noble Lord, Lord Fairfax, made from a slightly different point of view. It is important to listen to what the noble Lord, Lord McNally, is saying—and I strongly support what he is saying. He accepts that in the context of this Bill, the question of Leveson 2 has effectively been decided. We have sent it back twice to the Commons and, first with a majority of nine and then with a majority of 12, the Commons said that it did not want Leveson 2.

The noble Lord, Lord McNally, is not trying to reopen that debate in the context of the Bill. What he is doing—utterly legitimately, in my view—is raising with the Minister and this House what the other place sent back to us. It sent back a completely new series of clauses, one of which—as the noble Lord, Lord McNally, said—states:

“The Secretary of State must, before the end of each review period, lay before Parliament a report produced by the Secretary of State or an appropriate person on … the use of relevant alternative dispute resolution procedures, during that period … and … the effectiveness of those procedures in such cases”.

So the Secretary of State is to determine whether or not the procedures that the press has introduced are effective, and to make a report. Whichever side of the debate you are on, the one thing that you did not want was a Minister to be ruling on the effectiveness or otherwise of the press’s procedures.

Of course, this Government are innocent in every single respect of trying to put pressure in any way on the press—but imagine a future Government with this power. Sir Brian Leveson, President of the Queen’s Bench Division, stated in his report that,

“one of the fundamental requirements for the regulatory body is independence from the Government”.

Those were his words. Why are the Government suddenly breaking, at the very last minute, with that proposal, and giving a Minister the power to make those arrangements?

I was completely bewildered by the speech of the noble Lord, Lord Lester of Herne Hill. He asked how a Liberal Democrat could support the amendment put forward by the noble Lord, Lord McNally. What the noble Lord, Lord McNally, is saying is, “Don’t let the Secretary of State make that ruling. Make somebody who is genuinely independent do it”. I was very surprised that the noble Lord, Lord Lester of Herne Hill, thinks that Liberal Democrats should support the proposition that a Secretary of State should make that ruling.

So I seek from the Minister assurances that this will not lead to state intervention, and that arrangements will be made to ensure that it is not the Secretary of State’s opinion on effectiveness that will count. According to the report, it is not just a question of laying before Parliament somebody else’s report: it can be by the Secretary of State or somebody that he approaches. And it is not just a report about names and numbers —for example, how many times the dispute resolution procedure has been used—but about the effectiveness of the procedure. I do not think that any noble Lord in this House would support such an amendment. So I will be very interested to hear what assurances the Minister will give us, and I take issue strongly with those who criticised the noble Lord, Lord McNally, for raising a point that could have been raised in this House for the first time only today, because it was only when the material came back from the Commons that we first saw the clause.

There is a second new clause that has come from the Commons today. It states that the Information Commissioner will be given power, on a cyclical basis, to review whether,

“the processing of personal data for the purposes of journalism complied with … the data protection legislation, and … good practice in the processing of personal data for the purposes of journalism”.

Therefore, as I understand it, the Secretary of State for Digital, Culture, Media and Sport has it in mind that the Information Commissioner should review on a three-year and five-year basis whether newspapers are properly complying with the data protection legislation and with good practice in the processing of personal data for the purposes of journalism.

The Secretary of State, being a man who is aware of good practice, has included in his amendments, which currently form part of the Bill, that after Schedule 16, for the purposes of the review of personal data for the purposes of journalism, the Information Commissioner has the power to issue either information notices or assessment notices to the relevant newspapers. Information notices require newspapers to give information and assessment notices require them to allow the Information Commissioner to enter their premises to assess how things are going. Under the provisions of the Bill as currently drafted, putting aside these new provisions, an information notice or assessment notice cannot be served by the ICO if it relates to material used for solely journalistic purposes.

My reading of the amendment is that it is plain that the provisions currently to be found in Clause 174 of the Data Protection Bill cannot have been intended to apply to notices served for the purposes of this review, which is being put in at the last moment. If with one hand you give a power to issue information notices and assessment notices with the purpose of getting information about how a newspaper is using material in data processing for the purposes of journalism, it is quite contrary to that to say, “But you can’t ever use it where the data is being used for journalistic purposes”.

What do the Government have in mind? Am I right in assuming that in relation to this specific review the Information Commissioner is able to serve an assessment notice or an information notice that relates to journalistic material? If so, there is a problem there, because I do not think that it would be right for the Information Commission to be entitled to ask for information before publication. Nobody is in favour of pre-publication material being available. Let us suppose that a newspaper tricks a doctor into giving confidential medical information about a patient and then publishes it. Should the Information Commissioner, when he comes to do his cyclical review, be able to serve an information notice on a newspaper saying, “Is it true that you did the following in relation to getting material about somebody from a doctor?” I do not know what the Secretary of State has in mind here but he appears to be pointing in two rather contradictory directions. Can the Minister assist us with what is intended by the after Schedule 16 powers to which my amendment relates?

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My Lords, although it is perfectly correct to debate the Government’s Motion to agree with the Commons, I am not convinced that it is a good idea even to debate a further Lords amendment in lieu at this point. As my noble friend Lord Cormack pointed out, we are out of time. I agree with my noble and learned friend the Minister that the Bill is good enough and, if there is a vote, I will support the Minister.

I share the worries about the new role of the Secretary of State but unfortunately I do not think that it is an appropriate role for the Press Recognition Panel. The PRP has a very specific role, which is to test whether the approved regulator meets the standards laid out in the royal charter.

The House will be pleased to hear that I have cut out seven minutes of my speech. Nevertheless, I will be engaging with my noble friend Lord Black of Brentwood to explore how we can achieve what we all want: a free, vibrant, sustainable, competent press that adheres to the rules and acts decently, but which cannot be chilled by a very rich complainant.

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My Lords, the test has been given to us: we have to assess whether or not this Bill is good enough to pass. It is not the test I think we were expecting. It is quite refreshing in some ways because it means we do not have to look at every jot and every tittle, every “i” and every “t”, to make sure they are correct—we can just say that it is good enough so go with it. I am not sure it is the test that will sustain in your Lordships’ House for time to come, and perhaps we can draw a veil over it once we have got through this short period.

Is the Bill good enough to pass? Yes it is, and I have no doubt that it will pass today. However, it leaves behind two or three unanswered questions and some substantial issues that we will have to come back to. I think we have heard enough in the speeches today to know that these issues are not finally vanquished: they are present and they will be back, and we should think about that. If we wanted any assurance that this goes across all parties, all disciplines and all times, the speech by the noble Lord, Lord Fairfax of Cameron, put us absolutely on the spot. There is a sense that a great injustice has happened and a sense of fairness among UK citizens to want to see it organised better and done again. There was an all-party consensus—the evidence is that there still is an all-party consensus—that we should do it.

This was not the right Bill—I always said that it was not—but we have made huge changes to the way in which the Government were proposing to legislate in this area, changes which I welcome. Victim of the timing as we are, if there had been more time available, we perhaps could have sorted out many more of them. But we are not going to be able to do that because we must get the Bill through before midnight on 25 May. I absolutely subscribe to that.

What is left to do? There is no doubt that we have to know more about who did what to whom in the period running up to the Leveson inquiry being announced in November 2011. My Amendment A2 would have given the Information Commissioner powers to look at that and to provide what would effectively be a benchmarking report to allow subsequent work “looking forward”—in the words of the Secretary of State—to have a proper sense of what it was they were testing. I still think that that would be the right solution, but the noble and learned Lord made some welcome remarks from the Dispatch Box at the beginning of the debate and I accept those as being sufficient to make sure that I can withdraw the amendment at the appropriate time.

There is the narrow question of whether we should look at the particular points raised in the two other amendments. I think they are victim to the problems that we have had with this Bill, in that we have not been able to give detailed scrutiny in Committee or on Report to issues that we perhaps should have done had they been around. It is good that they are there and that the Government have listened. It is fantastic that they are prepared to work with us on these issues; much of the wording here has come out of discussions and debates with Ministers outside the House, and we have seen the benefit of that.

However, Amendment 62BC as proposed by the noble Lord, Lord McNally, worries us, and my noble and learned friend Lord Falconer made the point very well. It states:

“The Secretary of State must, before the end of each review period, lay before Parliament a report produced by the Secretary of State or an appropriate person on … the use of relevant alternative dispute resolution procedures … and … the effectiveness of those procedures in such cases”.

That goes a bit too close to whether it is politicians—the Secretary of State in this case—directing how independent assessments should go forward. I would be grateful if the noble and learned Lord could comment on that. It may well mean that the Secretary of State has the power but the actual work is done by others and, as was always going to be the case, that it is just a report and not a review. The confusion comes, I think, from having “review period” specified in the Bill, which is something that we would have picked up earlier.

On my noble and learned friend Lord Falconer’s amendments, there are issues around whether we are, in some senses, giving a responsibility to the Information Commissioner but not the powers to do the job that we want done. Again, some words from the Dispatch Box might help. I have covered my Amendment A2, in the sense that I think that responses have come back.

Is there a future for work in this area? Yes, there is. IPSO has made a significant change to its working practices since it was established and is now doing good and effective work. I do not disagree that the right thing is to let it continue on its path, watch how it goes and look at the reports that will be made on its effectiveness under Amendment 62BC.

We should not be tempted to change the structure of the PRP and its approval of independent press regulators. It may seem otiose but, as there are now 100 titles signed up to it, at least it is doing something right. As the noble Lord, Lord McNally, said, that system may well have something to offer Facebook, Google and others who might be interested in making sure that they are properly regulated.

Given that we are looking forward and the worry that we have in a liberal democracy of being able to see the kind of quality press and comment that we have in our present print journalism, which I support entirely, the review being carried out by Frances Cairncross will result in a number of recommendations and it is possible that we will need to legislate for that. These issues could come back relatively soon and I hope they do. There is enough all-party support in this House and the other place to get some movement on that and we will be happy to do so. For the moment, we wish the Bill well. It is good enough and we hope it will come into force and do the job it is meant to do.

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My Lords, I am grateful for the contributions of noble Lords. The noble Lord, Lord McNally, referred to me making blood-curdling threats. I made no threats—blood curdling or otherwise—and what I did say was essentially true.

This Bill is about data protection. The primary concern of your Lordships’ House, which we have debated over recent months, is whether individuals have the ability to defend themselves against excessive press intrusion, and the Bill now provides a number of mechanisms to address this concern. These are all designed to maintain the freedom of the press and the independence of self-regulation, albeit in compliance with the law. For example, it was announced three weeks ago that IPSO will introduce a low-cost mandatory arbitration scheme. We are determined that there will be no backsliding on that kind of commitment, and Commons Amendment 62BC is designed to ensure that the use of such schemes is reported on—a point to which I will return in a moment—to reduce any temptation there might be to turn away from them once the heat of the Bill is off.

The noble and learned Lord, Lord Falconer, sought, with vim and vigour, to address two points. I was slightly taken aback because, a few minutes before we began this debate, I had endeavoured to explain to him the operation of Clause 174(3)(b) and its interrelationship with Clause 144, and thought I had done so quite well. However, clearly I failed to some extent in that regard. I had also sought to give him further assurances about the role of the Secretary of State.

On the first point—the operation of the Information Commissioner’s powers—as I had sought to explain to the noble and learned Lord, under his amendment the Information Commissioner would have had access to prepublication material gathered for journalistic purposes. It was acknowledged across the House, and by the noble Lord, Lord McNally, during earlier debates that that could not be tolerated given the intrusion it would involve upon press freedom and journalistic preparation. The interrelationship between Clauses 174 and 144 is complex, but I again make it clear that the effect is that the Commissioner will not be able to access prepublication journalistic material but will be able to access material that has been processed for the purposes of journalism.

On the second point, about the power of the Secretary of State, one has to be clear that this is not actually a power but simply a duty to report. It is for the Secretary of State to report, and he could do so even without an express statutory power, but this is to underline it. We are making it a clear duty, to import transparency into the process. He will essentially be reporting on the metrics available with regard to the take-up of alternative dispute resolution. The effectiveness of dispute resolution will be determined by reference to its take-up and its resolution. It will then be for us—Parliament and the people—to determine in light of those facts whether we consider that further steps have to be taken.

Let us be absolutely clear: the Bill imports no power on the part of the Secretary of State to compel the media to act in any way on the report that he is putting in place. This is simply a mechanism by which he can ensure that the relevant facts and figures—if I can put it that way—are laid before Parliament at the appropriate time. I hope that I have been able to put both those reassurances with greater clarity than I did a few minutes earlier, and to reassure the noble and learned Lord on those points.

I am obliged to the noble Lord, Lord Stevenson, for the observations he has made, and I hope again that he is reassured by the position the Government have now adopted regarding the intent and consequences of the amendments from the House of Commons. As regards the observations from other noble Lords around the House, I recognise that there has been widespread concern about the way in which we have been able to address the past and the need to address the future, having regard to the fundamental requirement for freedom of the press—one of the foundations that underpins our democratic process. Before closing, I acknowledge the contributions of the noble Baroness, Lady Hollins, to this entire debate. I quite understand why she has maintained the need to bring these matters before the House on a number of occasions, and I do not seek to imply any criticism of her in that regard.

We have reached a point where the Bill should pass, however. It has to, really. It is in those circumstances that I invite the noble Lord to withdraw his amendment to Motion A.

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My Lords, when I studied the British constitution 50 years ago I read the books by Sir Ivor Jennings, who said that one of the only weapons that an Opposition have against a Government is time, and that an Opposition—and, indeed, critics on a Government’s own Benches—are perfectly entitled to use time to put pressure on Governments. My goodness, we have had a cascade of useful changes because we have used time to press the Government further on the issue.

As I said before, the line between the Daily Mail and the MailOnline is increasingly blurred. This legislation will be tested against that blurred background. At some stage, the old print media may regret not being in the comfortable protection of a royal charter, as my learned friends listening to this debate must think that there is a lot of work ahead for them as this Bill is tested.

We never wanted to stop the Bill coming into law, and I beg leave to withdraw Motion A1.

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A2 (as an amendment to Motion A) not moved.

Motion A3 (as an amendment to Motion A)

Tabled by

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At end, insert “and do propose amendments 62BFA and 62BFB to Commons Amendment 62BF—

62BFA Line 24, at end insert—

“( ) During a relevant period, section 144(1) does not apply (and proceedings in respect of an information notice given during a relevant period may continue after the end of the period).”

62BFB Line 36, leave out from “period,” to end of line 41 and insert “section 147(5) does not apply (and proceedings in respect of an assessment notice given during a relevant period may continue after the end of the period).””

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I am very reassured by what the noble and learned Lord, Lord Keen of Elie, said about the power. I took him to mean that it cannot be used pre publication, and will be available post publication. I apologise to him for being such a poor pupil in failing to understand that, but it is important that he said it.

The noble Lord, Lord McNally, is absolutely right not to press Motion A1, because it is too late, basically. However, like him, I remain incredibly disturbed about the terms of the provision and the ability that it gives the Secretary of State to interfere in the press. I can tell you only my experience as a Minister: nobody ever told you what was said in Parliament about how a power that was questionable would be used; they only came and told you the terms of the statute. The word “effectiveness” clearly carries a value judgment.

Motion A3 (as an amendment to Motion A) not moved.

Motion A agreed.