Report (2nd Day) (Continued)
My Lords, Amendment 50 having been agreed, I cannot call Amendments 51 and 52 due to pre-emption.
53: Schedule 2, page 142, line 10, leave out sub-paragraph (3)
My Lords, I thank the noble Lords, Lord McNally and Lord Blencathra, for supporting this group of amendments, which flow directly from three fundamental principles with which I believe the majority in your Lordships’ House will agree. First, we are entitled to the same rights over our personal private data as we are to our personal privacy and family life; secondly, a healthy democracy requires that journalists are free to expose corruption, incompetence or wrongdoing in high places; and thirdly, it is imperative that we protect citizens from those who might seek to abuse those protections and in doing so cause great personal distress.
Perhaps it would be helpful to offer some context here. Last week, several of the many foot soldiers who have assisted newspapers to obtain information illegally came into Parliament to describe the sheer scale of that abuse at a meeting for a group of parliamentarians. Two of them have written to noble Lords supporting these amendments. Their revelations were extraordinary, going far beyond what is in the public domain, and not just confined to tabloid newspapers. We heard how individuals of interest to the press were remorselessly targeted in the quest for stories—ordinary people, whose personal and private data was harvested and exploited, not to advance the democratic ideal of public interest journalism but to sell more newspapers. I do not know whether these practices have stopped, but new titles are still being implicated. Even if they have stopped, the competitive pressure on newspapers makes it possible that they will start again. We heard how hard it was for these whistleblowers to speak up and how others employed to engage in similar illegal practices have been silenced with money. I publicly applaud their courage and note the extraordinary stress and fear that they live under because of their positions. They were being employed to do illegal acts at the behest of newspaper proprietors and editors. It was not about freedom of speech—it was an abuse of power. The main perpetrators were not the foot soldiers, yet they are the most likely to be held to account. That is why we need adequate protection for the public, and for journalists, who may be prevented by the editors from speaking up.
The Bill quite properly imposes constraints on how businesses, institutions and even charities can use our private data, but it will allow the rules to be broken under certain circumstances. It is our responsibility to scrutinise the Bill to ensure that those who are permitted to break those laws—to breach the data privacy rights by which everyone else is bound—are in fact acting in the best interests of democracy and not simply on a journalistic whim: to put it crudely, a fishing trip, or something purely for personal or corporate gain.
In that spirit, this group of amendments would achieve a number of things: to address the current imbalance in the Bill whereby the newspaper’s right to publish overrides a citizen’s right to a private life; to enhance the protections in the Bill for public interest investigative journalism; to implement recommendations in the Leveson report in respect of data protection law; to protect the public from data misuse; and, finally, to provide an incentive for newspapers to sign up to an independent regulator so that the public can have faith that their interests are being safeguarded.
This group of amendments, working together, follows the recommendations of Sir Brian Leveson’s report in respect of data protection legislation, specifically the special purposes exemption and his recommendations to reform the Data Protection Act 1998 in line with public interest. When these recommendations were put to the Government in 2012, their response was to ask us to wait for the right legislation to be debated in Parliament. This is the right Bill.
Amendment 53 removes the existing clause in the Bill that gives the right to free expression precedence over the right to privacy. In Committee, the noble and learned Lord, Lord Keen, argued that removing the clause that elevates free expression above privacy would be incompatible with the GDPR. However, my advisers suggest that article 85 of the GDPR allows for exemptions only where they are necessary to reconcile the protection of personal data with the freedom of expression. There is no special importance for free expression; the rights must be balanced. Our default position must surely be compliance with the GDPR.
Amendments 54 and 56 are designed to ensure that when public interest is being considered for the purpose of the journalistic exemption, the codes assist journalists whether or not their publication is governed by one of the designated codes. The present wording would mean that, for example, a Guardian journalist—whose publication is not governed by any of the codes mentioned—would not have to consider any of them. Changing two of the words in the Bill—“must” to “may” and “relevant” to “appropriate”—provides more flexibility.
I move on to Amendments 59 and 64. Leveson said that, to protect investigative journalism and sources, all publishers should continue to enjoy several important exemptions. However, after hearing evidence from lawyers, newspapers and victims, Lord Justice Leveson concluded that a number of exemptions in the 1998 Act were superfluous to the purposes of investigative journalism and should be removed to protect the public from abuse, and could be done so at no risk whatever to genuine public interest journalism. These amendments offer a compromise.
Where Leveson recommended that certain exemptions be entirely removed—recommendation 49(a) to (f)—my amendments would retain them for newspapers that have demonstrated their commitment to accountability by joining an independent press self-regulator. Furthermore, having listened to the noble Lord, Lord Black, in Committee, I have tried to reflect his wishes by including some new exemptions in Amendments 60, 62 and 63 for such newspapers. Belonging to a self-regulator that has been recognised under the Leveson system is the mark of a publication that understands the need for independent, effective and transparent accountability. Such publishers should be entitled to the full list of exemptions, because the public can have faith in their commitment to public interest journalism.
However, neither we nor the public can have faith in publishers that continue to insist on marking their own homework. These amendments would allow those publishers to keep the exemptions necessary for genuine investigative journalism in the public interest and to protect their sources. But they would lose access to those exemptions that Leveson deemed to be superfluous and open to abuse.
Publishers committed to genuine investigative journalism have nothing to fear from these amendments. If they wish to enjoy access to the longer list, they need only join a recognised independent self-regulator or bring their own self-regulator up to the minimum standards of effective, independent scrutiny and redress that the public have a right to demand. I will not go through each of the exemptions to which publishers would lose access should they reject independent regulation as it would detain your Lordships’ House for too long—they are listed in the amendment itself. Moreover, they are listed in the Leveson report, and cover such basic requirements as for data to be kept accurately.
Amendment 217 would ensure that these provisions would be passed into law on Royal Assent, so that the Government could not use the same tactics of executive non-commencement as they have done previously, going back on commitments on press reform.
My Lords, in speaking to Amendments 59 and 64 I remind the House of the declaration of interests that I made on the previous group of amendments.
It will not surprise noble Lords or the noble Baroness that I am wholly opposed to these amendments, which are pernicious in their effect. This is because they fly in the face of the GDPR, which under article 85, as I understand it, mandates us to ensure that there are exemptions for journalistic activities. The amendments set their face against a successful domestic legal regime established by the 1998 Act which, thanks to the work of Gareth Williams and his colleagues on the Labour Front Bench at the time, has worked so effectively for two decades to balance rights to privacy and free expression. They single out legitimate journalism for special punishment in breach of the Human Rights Act. Above all they are simply a crude form of bullying—that is the best word I can use—to force the press into a state-sponsored system of regulation.
It is not only the national press that would be affected by the noble Baroness’s amendments but the whole of the local press, from the Maidenhead Advertiser—a great newspaper—to the Barnsley Chronicle, and many thousands of magazines such as Reader’s Digest, Country Life and Angling Times. It would also stifle international media, including the Wall Street Journal and Huffington Post. What these many thousands of publications have in common is not that they have been intruding on individual privacy, harassing people or anything of that kind, but simply that they do not want to be part of a system of regulation established by the state and changeable by politicians. They want to be part of a system of self-regulation which has existed in this country for 300 years.
That judgment has not been entered into lightly; it is a matter of deep-seated belief. Even Sir Brian Leveson, whose name has been bandied around a great deal in these debates, expressly acknowledged it as principled. It is also a choice which is entirely lawful. If these amendments were passed they would wholly undermine a fundamental tenet of public law—that it is unlawful to punish someone who has done nothing wrong. Given that the choice of publishers to be part of the Independent Press Standards Organisation and not of Max Mosley’s regulator is both principled and lawful, it is impossible to see how singling them out for special treatment could ever be compatible with the ECHR and the EU Charter of Fundamental Rights. I do not believe this House would want to put itself in such a position.
Nor should this House—the defender of our democratic values—want to introduce a legal regime which would undermine legitimate investigative journalism, and that is what these amendments would do. As we heard with the last group of amendments, journalistic exemptions are absolutely vital to enable investigation to take place and to develop. The Telegraph’s exposure of MPs’ expenses, for example, would have been impossible without these protections because it relied on handling of data. Is the noble Baroness really saying that she wants to put on the statute book laws that would make it impossible to subject this House to such scrutiny? I do not expect so.
These are contentious issues which arouse great passion, as we saw with the last group of amendments, which is one reason among many why they should not be played out in a highly technical Bill about data protection and one which is rightly constrained both by the terms of the GDPR and the Human Rights Act. The Bill as amended in Committee—building on the successful operation of the 1998 Act and making it fit for purpose in a digital age—is carefully crafted and balances rights to privacy with the equally fundamental right of free expression. It protects both individuals and free speech. The House will interfere with that balance, which is the foundation stone of our democracy, at its peril.
My Lords, I repeat my declaration of interest as a barrister acting in privacy cases including, I should mention in relation to this group, acting for the NMA in its unsuccessful attempt to challenge the recognition of Impress, a case which continues.
I shall speak first to Amendment 53. It seeks to remove paragraph 24(3) of the schedule which recognises,
“the special importance of the public interest in freedom of expression and information”.
I am surprised that the noble Baroness is seeking to remove that provision because it has been the law of this country for centuries. Because it has been the law of this country for centuries, a provision to almost identical effect appears in the Human Rights Act 1998 at Section 12(4). It is also the approach taken by the European Court of Human Rights in relation to Article 10. The idea that our law should no longer recognise the special public interest in freedom of expression is therefore a surprising one and would lead this country’s law into conflict with our international obligations under Article 10.
I shall speak also to Amendments 59 and 64 and express my agreement with what has just been said by the noble Lord, Lord Black. If enacted, these amendments would deprive journalists throughout the national and local media of all the exemptions under the Bill unless their employers choose to register with a regulator approved under the royal charter. The question for noble Lords is: why should a journalist on the Financial Times, or indeed on the Borehamwood Times, lose exemptions under this legislation and be hindered from doing his or her job effectively because the newspaper by which they are employed decides that it sincerely does not wish to be regulated by a royal charter regulator?
The fact of the matter, which is quite clear, is that Amendments 59 and 64 seek to use this Bill for what is a wholly extraneous purpose, seeking to compel newspaper groups into submitting to regulation under the royal charter or, as the noble Lord, Lord Black, put it, bullying newspapers in that respect. This Bill is simply not an appropriate vehicle for such an exercise.
My Lords, I have listened to the debate for several hours and I am growing increasingly worried about one or two things. In a sense I am going to act as a devil’s advocate. I believe passionately in a free and inquisitive press. For many years, I was one of its number both in the written and the spoken word. I believe that the press is absolutely vital to holding us all to account. But I have begun to feel that, in castrating Leveson’s work to such an extent, the public are going to lose confidence in public inquiries. Let us hope that that does not happen with Grenfell, although the residents of that tower, who live two roads away from me, are already beginning to think so.
Last year I attended a meeting in a committee room where Gerry McCann, PC Jacqui Hames and Hugh Grant spoke of their quite awful experiences. It is important that we remember the victims and recite these woes. I have not heard any expression of acceptance on this side of the House, or concern about some of these matters. I would go with noble Lords much more about not loosening things if I heard some kind of admittance that there are problems.
The answer to the noble Lord was given by the noble Lord, Lord Finkelstein, in the previous debate. The fact is that many of these individuals have justifiably brought civil claims against the newspaper groups concerned. They have recovered and are continuing to recover very large sums in damages, and no doubt rightly so. The News of the World closed down because of its conduct and individuals went to prison in circumstances where they broke the criminal law. That is the answer. No one is suggesting that terrible things were not done, but there are existing legal remedies and they have been applied.
I am grateful to the noble Lord, who obviously knows a great deal about the matter—more than I do. I still think that we should question the ability for this to happen in the future. Surely the whole point of the Leveson inquiry was to tighten things up so that this would not happen so much. When I listen to people talking about what happened to them and how they felt that they had very little recourse—although they took civil action and some of them won—I accept that newspapers shut down, but my goodness, perhaps they should have done. These things are right.
In listening to the debate, I was very impressed by the speech of the noble Lord, Lord McNally. It is not that I do not believe in the press—believe me, I think that the press does a wonderful job, by and large—but even those of us who are involved in doing wonderful jobs do so because we can look at ourselves and say, “We got this wrong”. That is what I have not heard enough of. My noble friend Lady Hollins is having a rather tricky time; she is up against some big guns.
What do the future victims have if they do not have recourse to law—if they believe that Leveson was the answer and we gradually remove most of his recommendations, which is what we seem to be doing? Perhaps noble Lords are right; perhaps in law we should be getting rid of them, but I am worried that the public will begin to think, “What are these inquiries? Why does the status quo always remain exactly the same?”. That is why I wanted to speak up for my noble friend Lady Hollins. We must think a bit more about people whose lives are sometimes ruined just by innuendo. As we have heard, they might get a tiny apology at the bottom of the page, but the damage is done—and it can terrible.
My Lords, I first congratulate the noble Baroness, Lady Hollins, on withdrawing her amendment, which I thought was extremely wise and thoughtful. She does us a great favour by constantly bringing us back to these issues.
I try to take the long view. I declare an interest: I am the extremely proud son of a journalist. My father was not any old journalist; he was one of only two people who were evacuated from Dunkirk twice, because he was sent back to report it twice. I am very proud of my father; he was a remarkable journalist and a very fine man. That is why I am passionate about this subject. I apologise to the noble and learned Lord, Lord Keen, if I intervened inappropriately at the end of the last debate. I was trying to make it clear that this House does not contain people who oppose freedom of the press; if we could just agree on that, it would be something of a triumph.
The noble Lord, Lord Pannick, for whom I have enormous regard, and the noble Lord, Lord Black, both used an interesting word: “bully”. The idea of using the word “bully” in the context of a debate such as this, as if it excludes the notion of press bullies, is obviously farcical. I ask the noble Lord, Lord Pannick: when a headline appears that accuses three High Court judges of being traitors, is that fair comment? Is that damaging? Does that provide for the type of democracy he would like to see this country moving towards, or does it irrevocably drive it backwards? As a remainer, I am sick to death of being accused of being somehow undemocratic and apparently opposing the will of the people. That is as much rubbish as is the notion that I might be opposed to freedom of the press.
The noble Lord, Lord Berkeley, is exactly right. We must be more sensible about this. There is fault on both sides. We are not where we would wish to be. The 1998 Act—I was here when it was passed—was a very good act, but it is not sufficient for our present circumstances. It has been ignored by some highly unscrupulous editors. The present regime of apology is ludicrous; the other day, I put that to the noble Lord, Lord Black. I am not sure if he agrees, but it is a joke. We must be more sensible about moving forward on this issue, so I applaud the noble Baroness, Lady Hollins, for taking a long view. We must do the same, but we must also adopt a very determined, clear and moral view to get this right.
My Lords, as I made clear in Committee, I wish to see the recommendations of the Leveson report, which strikes the right balance between the interests of the public and free expression rights of the press, be enacted in law. I say to my noble friend Lord Black that there is certainly no intention to punish anyone.
We already have the architecture in place: the royal charter and the Press Recognition Panel, which applies tests suggested by Leveson and made under the royal charter. There is already one approved regulator in place. The only role left for the state and the Government is for Section 40 of the Crime and Courts Act to be commenced and to deal with some of the detailed data protection issues. We do not need to do much more and we certainly do not need to start again.
These Leveson changes are the only way to achieve a thriving, free and independent press that is immunised against a very rich target for investigation, as well as to provide appropriate protection for the public from abuse. I therefore have no hesitation in strongly supporting the amendments in the name of the noble Baroness, Lady Hollins. I remind the House that I have never been mistreated by the media and I do not know any celebrities, except those who are or have been parliamentarians.
In Committee I also made it clear that one of the factors that stung me into action was the copious misinformation and wrongful propaganda published about press regulation and Leveson’s recommendations by elements of the press. This tactic of publicising falsities about the recommendation in the Leveson report also motivated the DCMS committee in another place to criticise press misreporting about Section 40 and other matters in its submission to the government consultation on press regulation earlier this year.
Probably one of the most palpably false media claims is that the implementation of Leveson is unnecessary. Many noble Lords have already touched on that. The media says that the regulator it has established and controls, IPSO—which fails the Leveson and royal charter tests for independence and effectiveness—which is already sufficiently robust. Many noble Lords clearly do not believe that. IPSO helpfully mailed a fact sheet last week to some noble Lords. I was pleased to see that it has already been subject to a rebuttal by a further mailing from Professor Brian Cathcart.
I was alarmed to see some particularly erroneous details in IPSO’s mailing. They cannot be left unchallenged. For instance, IPSO claims that it had ordered 17 front- page references. The truth is that not once in three years of work has IPSO required a national newspaper to publish a recognisable correction on its front page, no matter how profound the original breach. I have to confess that I do not regularly read a certain broadsheet newspaper that many noble Lords would expect me to read. I do not find it to be a reliable source of information, very sadly. So I subscribe to the Economist, but even that august newspaper last week disappointed by publishing a correction about a forgivable error in the previous week’s report on transgender rights that was in small print and at the bottom of a completely unrelated article about Labour Party polling.
Moreover, IPSO argues that its complaints process puts great emphasis on complaints between publication and the complainant being resolved with, it says, more than 600 resolutions in its three years of operation. But what does “resolution” mean? The reality is that in many cases, as with the failed PCC, complainants become so worn down by the process that they give up or accept weak and inadequate remedy. Furthermore, when cases are supposedly “resolved” there is no recording of a code breach, which means that essentially nothing is kept on record by IPSO to show that the newspaper has failed to meet the appropriate standards.
As for IPSO’s claim to offer Leveson-style arbitration, Leveson said that it is critical that arbitration is compulsory for news publishers, yet IPSO’s scheme allows the publishers to choose whether to accept an arbitration claim. In other words, the whole system is optional. This means that those with the strongest cases but with limited means can be refused arbitration, forcing them to go to court—if they can afford it—whereas a multi-billionaire can threaten very expensive legal proceedings against the newspaper. That is exactly what Leveson feared and it renders IPSO’s whole scheme redundant. This is not access to justice for all; it just protects the ultra-rich and elites but leaves ordinary aggrieved citizens with no protection. It is no wonder that, after 18 months, IPSO’s trial arbitration scheme has had no takers.
A further difficulty is that IPSO regulates compliance with the editors’ code, which is determined by an editors’ panel with minority input from IPSO, whereas an approved regulator such as Impress determines the code itself. Regrettably, the existing editors’ code stipulates that groups cannot complain on the grounds of discrimination—great. Therefore, the media can say what they like about religious or ethnic groups and individuals or organisations without fear of challenge, unless it falls short of the criminal law.
Finally, I draw to the House’s attention something omitted from IPSO’s grand claims: the £1 million fine. For the past three years, IPSO has boasted that it can impose £1 million fines on its publishers yet it has seemingly found nothing that even merits a £10 fine, with no investigations to speak of either.
If these amendments were brought into law, the press would have good reason to take meaningful steps towards making IPSO a genuinely independent regulator. Of course, I am not the arbiter of IPSO’s independence, and neither is the press and certainly not IPSO itself. Only the Press Recognition Panel, set up by the royal charter, is qualified to make that judgment. Until newspapers sign up to a regulator which meets those tests of independence and effectiveness, we are no further from where we were when we discovered that newspapers had been hacking the phones of the victims of crime on an industrial scale.
It is clear that a free press must enjoy special rights in respect of data protection. I slightly part company with some in that I am relaxed about how much data the media collect, provided that the data are collected legally, that the reporting is accurate and, most importantly, that the media operator is signed up to a genuinely independent regulator. I hope that Members from across the House will support these amendments so that we can finally achieve the reform that all sides agreed to.
My Lords, I am very pleased to support the cross-party amendments in this group, spoken to so ably by the noble Baroness, Lady Hollins, to remedy imbalances in the Data Protection Bill and provide new incentives for the press to join a properly independent system of self-regulation, which is what Leveson recommended and both Houses of Parliament agreed.
Let us remember what led to the establishment of the Leveson inquiry: we had revelations of data breaches on a massive scale. I have never met Hugh Grant—I have not even seen any of his films—but I suppose that one can say that film stars and politicians, as we are public people, are perhaps considered fair game by the media. I do not believe that, but it is an understandable point of view. However, we saw ordinary members of the public and anyone vaguely of press interest being targeted. That meant victims of crime, the bereaved and other totally innocent, private people. Medical records were stolen, mobile phones were hacked and bins were sifted through. Often, there was no public interest or even a suspected story. It was speculative—or “fishing”, as it is known.
Before we get bogged down in legal arguments that this is not the right Bill for these amendments, let us go back to basics and remember the one glaring example that started all this off. A little girl called Milly Dowler disappeared and the media hacked into her voicemails even before her murdered body was found. Despicable as that was, the police did nothing about it, because it was accepted that it was par for the course and that journalists did that sort of thing. That was the view I had as a Member of Parliament in the other place; we took it for granted that that would happen. It was part of the police/media mutual back scratching. Police tipped off friends in the media about arresting the actress Gillian Taylforth performing what was called “a sex act” on her boyfriend in a Range Rover and the media returned the favour by giving some crime story greater coverage in order to help the police.
All parties at the time recognised the need for reform and the Leveson inquiry was established. The inquiry was established to make recommendations to protect freedom of expression and take the matter of press regulation out of the hands of government and give it to an independent body. That is the proper way to reform regulation of the press: a public inquiry the recommendations of which all sides sign up to. Governments of left and right are always vulnerable to pressure from the press, whether it is from Murdoch, Dacre or other individuals, to sway policy in their direction, often at the expense of the public. Let us be honest that no Government have been immune from those pressures. All Governments run scared of doing anything on press regulation when the press might criticise it and not back the party at the next election. That is no way to settle policy, least of all when it overrides the will of both Houses of the British Parliament.
These are not new points; they are a summary of Sir John Major’s evidence to Leveson. I am supporting these amendments today in order to bring those reforms into effect, as Leveson recommended and as Parliament intended and voted for. As noble and noble and learned Lords have said, it is vital that newspapers have access to the exemptions necessary for investigative journalism—Leveson recommended that. We are all defenders of free speech. Newspapers that wish to continue to enjoy the broadest range of exemptions need only sign up to an independent regulator, whereupon they will enjoy not only all of the exemptions already in the Bill, but three new exemptions added by these amendments.
Let us be clear that we mean an independent regulator, not the in-house, fey, bogus, patsy system that the media have created for their own benefit and which is no better than the discredited Press Complaints Commission. We have heard enough examples from noble Lords tonight to show that they have failed to do their duty. We have a cross-party, judge-recommended way forward on these matters. We should take it and take press regulation policy out of the hands of government and into Leveson’s independent system. It is probably just as well that the noble Lord, Lord Prescott, is not here for this debate. In my 40 years in Parliament I have never agreed with anything he has said except every word tonight. I assure noble Lords that it would be as terrible a shock to the noble Lord to hear it as it is to me to say it, but he is absolutely right—we have implemented only a trivial amount of Leveson.
Noble and noble and learned Lords have said, “This is not the right Bill”. There never is a right Bill, unless the Government bring in a press regulation Bill, which I can understand that no Government would want to do. So we are forced to try to implement Leveson by tacking a bit onto this Bill, hoping that there will be another criminal justice Bill next year so we can tack another bit on and gradually, bit by bit, getting Leveson implemented. Of course, the Government could easily implement Section 40, which would give us 90% of what Leveson wanted. These amendments, or implementing Section 40, are the only ways to protect the public while ensuring freedom of the press. I hope that noble Lords from all sides of the House will support these amendments tonight—or, if not tonight if we do not have a vote, in the new year.
My Lords, I shall make very few remarks and confine them to Amendment 53—which I oppose, I should say at once. In my arguments addressed to an earlier group, I referred to Section 12(4) of the Human Rights Act, to which the noble Lord, Lord Pannick, referred again this evening. He is plainly right: if you look at the text of that, the amendment and paragraph 24(3) of the schedule—which the amendment would excise—you see that the amendment makes no sense. It would leave out precisely what is already there, which mirrors what is already in Section 12 of the Human Rights Act. If ever there were such a thing as a constitutional Act, that is. It has a considerable place in our overall constitution.
I have been searching the Leveson inquiry report, not least the paragraphs devoted specifically to the press and data protection. I certainly hope to be corrected if I am wrong, but I cannot find any suggestion by Lord Justice Leveson—Sir Brian Leveson, not Lord Leveson—that Section 12 of the Human Rights Act should be repealed. In effect, however, Amendment 53 is, if not repealing it, at least producing a position that would be inconsistent with it.
I do not seek to address Section 40. Manifestly, this is not the right Bill, but my objection is deeper still. It would be wrong and unwise, all these years on from the enactment of the 2013 Act, to bring into force Section 40. I set out all the reasons why I take that view in the full debate that we had in this Chamber on 20 December—just before Christmas—a year ago. I do not want to weary your Lordships by repeating it all, although, if I did so, I fear that what I would say would be in plain conflict with a good deal of what was just said by the noble Lord, Lord Blencathra. Surely the right course now on Section 40 is to wait to see the Government’s final response to their admittedly prolonged consultation process. We will not get there tonight, so I leave it at that. I oppose the amendments.
My Lords, it is late, so I will be brief, but I cannot avoid speaking against Amendment 53. I declare my interest as someone who spent most of her career in journalism and now chairs the Financial Times complaints commission, which is, I assure your Lordships, a very serious commission. The FT aims to put things right.
I absolutely accept that the public were justifiably incensed by the hacking scandal. It was atrocious and, as has been pointed out, illegal. The fact that it was not dealt with as it should have been at first instance through the criminal process was absolutely wrong. In the end, as we heard from noble Lords such as the noble Lord, Lord Pannick, people were punished and newspapers folded. That was right, because hacking was illegal and should never have happened, and the public were right to be angry about it. But I do not believe that the British public wish to see all media tarred with that scandal. Neither do I believe that the British public, who are an inherently fair group of people, wish to see all media straitjacketed into joining an inappropriate regulator. I cannot resist echoing my noble friend Lord Black in his use of the word “bullying”; that is exactly how it feels. On the whole, I do not think that the British public would go along with bullying on that scale.
I declare another interest as somebody who, as a supporter of remain, has found myself very much on the sharp end of what newspapers can do. The Brexit media have been quite unpleasant, putting aside the fact that at some stages I have worked for the newspapers in question. That did not stop them. Nevertheless, do I want to see them subject to punitive damages in the circumstances that Leveson imagined? No, I do not, because, as everybody in this House has expressed, I too am a believer in free speech. If we believe in free speech, we need to think very carefully about there being punitive damages for not joining an inappropriate regulator. I do not believe the public want that and I do not believe we should support the amendment.
My Lords, I did not intend to speak on these amendments, although we support them from these Benches, but I have to take issue with what the noble Lord, Lord Pannick, said—I think, quoting the noble Lord, Lord Black, from the previous debate—about how we do not need any of this stuff because people can sue the newspapers and achieve redress through those means.
When I was a commander in the Metropolitan Police Service, I was subjected to a kiss and tell story on the front page and eight inside pages of a tabloid newspaper. The story was a mixture of lies and intimate details of my private life and my relationship with somebody I loved and lived with for three and a half years. We broke up in acrimonious circumstances and subsequently he was paid £100,000 by the tabloid newspaper to tell these lies and intimate details of my private life. Thankfully, a group of solicitors and barristers agreed to a conditional fee agreement to pursue the newspaper. However, half way through the preliminaries leading up to the court case, it became apparent that I was unable to secure insurance against losing. Therefore, I was faced with a situation where if I pulled out of the action I would have to pay both sides’ costs—the newspaper’s costs and my own side’s costs because the conditional fee agreement would happen only if the case went to court and I lost—and could have lost my home.
The point is that there are many ordinary people, less high-profile than even I was at that time, who cannot get conditional fee agreements. They do not have the means to sue newspapers. Certainly, I would not recommend anybody going through the stress that I was put through by that newspaper and its lawyers, who tried every trick in the book to try to get us to fold before the court case happened. As it happens, two weeks before the case was due to be heard, they agreed to settle, although they claimed that it was not on the grounds of a breach of privacy but because everything that had been printed in the newspaper was untrue.
For noble Lords to say that there are sufficient safeguards at the moment for ordinary people to take the newspapers to court is, in my respectful submission, completely untrue.
I am very sorry to hear about the noble Lord’s personal experience and of course I accept everything he says. But will he accept that hundreds of people have brought legal proceedings against national newspaper groups for their wrongful, unlawful action in accessing personal data—for example, by listening to their mobile telephone calls—and publishing articles in consequence of that, and they have recovered very substantial damages, and rightly so, against those newspapers?
I completely accept what the noble Lord says but there are many hundreds, if not thousands, of other ordinary people who have not been able to claim redress for the wrongs that have been meted out to them by the press.
This is not simply about money; it is what it does to your reputation. That is much more important than money.
I am grateful for the noble Lord’s intervention. Obviously, despite the fact that we won the court case in the end and that there was a small apology in the said newspaper—I think it was on page 6—I was not able to recover the serious damage done to my reputation. I am grateful to be standing here in the House today to address noble Lords on this issue, but there are many people whose reputations have not recovered.
Perhaps I may give the noble Lord some information which he may not have been aware of, as he may have left the Met by then. The reason that maybe up to 100 people were able to sue on the hacking was because their names appeared in the Mulcaire diaries, and the Met team kindly went and told every single person who had possibly been hacked, “They’re after you. You’re in Mulcaire’s diaries and you may care to contact some lawyers. Here are some lawyers who are doing a group action. If you join that, there is no great risk to yourself—you will be in there with a lot of others. The lawyers will be there on a no-win no-fee basis and you’re perfectly safe to do it”. That is why most of those people were able to go together in a joint action, but the thousands of individuals do not have a hope.
My Lords, I have been trying to search for words to explain what is going on at the moment. It seems to me that we are living in two parallel universes. My first thought was that we were back in World War I territory—the noble Lord, Lord Black, will get the reference—and that we were engaging in sniping over long pieces of dead ground over issues that nobody could understand, fought by people who did not want to be there and led by people even more stupid than that. But I have decided that this is the rerun of an acrimonious family dinner that we had before the break. We are now reflecting on that and trying to nerve ourselves up to talk again to each other and restore relationships, because relationships must go on.
Again, we have had these passionate stories, anecdotes and recollections of times when things have gone disastrously wrong. No amount of legal redress can undo that suffering. From others, we have heard a perfectly robust and understandable account of why things are perfectly all right at the moment and, given time, will be sorted out. I begin to think that Leveson, for all the great work he did and the excellence of his report—and the longevity of its recommendations—is a bit of a McGuffin here. This is about us and society; it is about Parliament. I tried to address some of that at the end of the last debate. We have to get serious about this and work out how to make progress. We have to restore the rightful balance between Parliament, which must be sovereign, and those who work within an environment in which Parliament seems at the moment to have been discounted.
If we do not get this sorted, we will continue to be like this for the rest of time. It is insufficient and ineffective. It will not be the way we want to live our lives and we will all be much the losers as a result. We must give credit to the noble Baroness, Lady Hollins, and her proposals. Yes, they come from Leveson—but underneath that there is the greater truth that things are not working as they could be. They should be working better.
My Lords, while we have already debated amendments that are challenging to a free press, I fear that this group of amendments would be potentially hostile to the concept of a free press. Where there are abuses the answer is to enforce the law, not to shut down the media. I adopt the observations of the noble Lord, Lord Pannick, and my noble friend Lady Wheatcroft in that regard.
Amendment 53 would remove the requirement to give special weighting to the public interest in freedom of expression and information. This is something that we consider an essential way of ensuring that information that is in the public interest is not buried due to the data protection regime that is put in place. In this context, giving special weight to the public interest in freedom of expression and information is an important way of ensuring that we provide constitutional protection of freedom of speech, as required pursuant to Article 10 of the European Convention and the Human Rights Act.
Amendments 54 and 56 relate to the codes of practice to guide journalists in conducting the essential public interest balancing test that has to be carried out. We have already debated this in the previous group, before the dinner break. Amendment 54 intends to take away the absolute requirement to have regard to the listed codes of practice when determining whether publication would pass the public interest test. This requirement is a way of strengthening the obligations on journalists. In line with the enhanced protection of the GDPR, we are making sure that those journalists who are covered by one of the listed codes must have regard to their relevant code.
In a related amendment, Amendment 56, the noble Baroness, Lady Hollins, has suggested that we alter the language of the condition on the special purposes exemption at paragraph 24 of Schedule 2 to the Bill by changing “relevant” to “appropriate”. This amendment makes it unclear which code should be consulted in a given case. We want to ensure that the code which pertains to a particular set of journalists is the code to which they have regard when carrying out the public interest test.
We are not being unreasonable in resisting Amendments 54 and 56. They may look innocuous, just slightly changing the language of the Bill, but if we are to be true to the GDPR, we must ensure that in our law we have resolved the article 85 requirement to set where the public interest lies in managing the balance between privacy and freedom of expression. If we make the use of these codes discretionary and their application vague, we will simply undermine that balance.
Finally, I turn to the amendments from the noble Baroness that aim to create a special group of exemptions only for those journalists who are members of an approved regulator. As drafted, the Bill is designed to protect journalists who should be able legitimately to rely on these exemptions when undertaking journalism in the public interest, regardless of which regulator they belong to or whether they belong to any at all. The reality of the press landscape today is that the vast majority of publishers are not members of an approved regulator. As such, limiting certain exemptions to only those who are members of an approved regulator would limit the ability of most journalists in this country to undertake investigative journalism in the public interest. Whatever the motive or the intention behind these amendments, they are, I am afraid, either wrecking amendments or amendments designed to force publishers to sign up to a regulator to which they object—and that is not acceptable.
Section 40 of the Crime and Courts Act 2013 was mentioned. As we have previously discussed, the Government are currently considering Section 40 with regard to part 2 of the Leveson inquiry. We do not believe that using data protection legislation is an appropriate means of trying to incentivise compliance with, for example, Section 40.
The noble Lord, Lord Stevenson, observed just three weeks ago, and earlier this evening, that this is not perhaps the place for this debate. He commented:
“I do not think the Bill is the right place to rerun some of the long-standing arguments about Leveson”.—[Official Report, 22/11/17; col. 195.]
I concur with that observation, which he just reinforced with his observations about the need for us perhaps to look more clearly at what the real issue is rather than being distracted by trying to act as tail-end Charlies to a particular piece of legislation on data protection.
There will be a response to the consultation on Section 40 and Leveson 2, but I shall make one comment with regard to the suggestion about delay in that consultation process. Noble Lords may recollect that the Secretary of State was the subject of a judicial review application which made it impossible for her to proceed with the consultation because the terms of the consultation were the subject of legal challenge. Thereafter, when the consultation proceeded, there were more than 174,000 responses. They had to be analysed and considered, but the fact that there was that number of responses perhaps gives weight to the observation of the noble Lord, Lord Stevenson, about there being an issue that needs to be addressed, and therefore we must look forward to the response to the consultation. I invite the noble Baroness to withdraw the amendment.
Before the Minister sits down, will he confirm that he will reflect on this debate, which has been very important, and in the light of the promised consultation report allow the debate to continue in the new year?
I cannot guarantee the continuation of this debate, although the noble Lord, Lord Stevenson, appears determined to see it continue in the new year, under reference to his Amendment 165, and I look to engaging with him in a further interesting discussion on the topic at that stage. Beyond that, I say to the noble Baroness that the Government and Ministers are listening and considering these issues.
My Lords, does the fact that the Government have not responded to the consultation indicate that there must be some uncertainty about the issue?
The position with regard to the consultation and the response to the consultation is as I indicated before the break. Sir Brian Leveson has, very properly, asked to see material pertaining to the consultation and the responses to it because he is a necessary party in this context. Until he has had a reasonable opportunity to do that, it would not be appropriate for us to respond.
My Lords, I would like just to make one or two corrections for the record. The noble and learned Lord suggested that the amendment, which would reserve some exemptions for newspapers signed up to a recognised regulator, would actually prevent the majority of journalists from engaging in investigative journalism. That is not the case. The exemptions required for investigative journalism remain intact for all journalists, regardless of their regulator.
There are one or two other corrections. The noble Lord, Lord Black, continues to misrepresent the establishment of the Press Recognition Panel, for example by saying that it is subject to interference by the Secretary of State. That is just not the case. It is so patently untrue that I can only assume that the noble Lord has not researched the facts, because it is a point that he has made before.
With respect to my noble friend Lord Pannick’s faith in the legal profession being able to sort out any illegal acts by newspapers, I will just say that affording the money to pay a lawyer and the time to mount a legal claim is not usually possible or a priority for victims of press abuse, particularly when they are in the midst of personal trauma. It is just not a priority. I personally would prefer that newspapers behaved themselves and did not fill lawyers’ pockets with money.
I take exception to being described as a bully. I have heard no compassion or concern for the victims of press abuse. Do noble Lords have any idea what it is like to be bullied by newspapers day after day after day? Any idea at all? To call my amendments bullying is unforgivable. Imagine the effect on the lady I spoke about before, who had lost weight and was described as a “grubby gran”. Imagine what that did to her mental state. I wonder whether she has been able to retain her weight loss.
This is the right Bill for these amendments. They are amendments to data protection legislation, and the victims of press abuse have waited a considerable length of time for an opportunity to take them forward. They are not hastily drawn-up, but the result of an extensive and impartial inquiry, and are as relevant today as they were in 2012. Sir Brian Leveson’s recommendations relate to the processing of data, not to the medium of publication, so it is irrelevant that the media landscape is changing.
I am grateful for the contributions of noble Lords who have spoken, in part because they demonstrate just how much there appears to be two parallel worlds. I assure your Lordships that I will return to this matter, but I beg leave to withdraw my amendment.
Amendment 53 withdrawn.
Amendments 54 to 56 not moved.
57: Schedule 2, page 142, line 20, leave out “IPSO”
Amendment 57 agreed.
Amendments 58 to 60 not moved.
61: Schedule 2, page 142, line 47, at end insert—
“( ) in Chapter IV of the GDPR (controller and processor), Article 36 (requirement for controller to consult Commissioner prior to high risk processing);( ) in Chapter V of the GDPR (transfers of data to third countries etc), Article 44 (general principles for transfers);”
Amendment 61 agreed.
Amendments 62 to 64 not moved.
Schedule 3: Exemptions etc from the GDPR: health, social work, education and child abuse data
Amendments 65 and 66
65: Schedule 3, page 148, line 17, leave out from “of” to “or” in line 18 and insert “section 2(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)),”
66: Schedule 3, page 148, line 24, leave out from “of” to “on” in line 25 and insert “section 2(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.))”
Amendments 65 and 66 agreed.
Clause 15: Power to make further exemptions etc by regulations
Amendments 67 and 68
67: Clause 15, page 9, line 14, leave out paragraph (d)
68: Clause 15, page 9, line 18, leave out from “may” to end of line 19 and insert “—
(a) amend Schedules 2 to 4 —(i) by adding or varying provisions, and(ii) by omitting provisions added by regulations under this section, and(b) consequentially amend section 14.”
Amendments 67 and 68 agreed.
Amendment 69 not moved.
Clause 16: Accreditation of certification providers
70: Clause 16, page 9, line 38, leave out subsection (4)
Amendment 70 agreed.
Clause 17: Transfers of personal data to third countries etc
71: Clause 17, page 10, line 31, leave out subsection (3) and insert—
“(3) Regulations under this section—(a) are subject to the made affirmative resolution procedure where the Secretary of State has made an urgency statement in respect of them;(b) are otherwise subject to the affirmative resolution procedure.(4) For the purposes of this section, an urgency statement is a reasoned statement that the Secretary of State considers it desirable for the regulations to come into force without delay.”
Amendment 71 agreed.
Clause 18: Processing for archiving, research and statistical purposes: safeguards
Amendments 72 to 77
72: Clause 18, page 10, line 35, after “processing” insert “of personal data”
73: Clause 18, page 10, line 37, after “processing” insert “of personal data”
74: Clause 18, page 10, line 39, after “processing” insert “of personal data”
75: Clause 18, page 11, line 1, leave out paragraph (a)
76: Clause 18, page 11, line 3, leave out “an individual” and insert “a data subject”
77: Clause 18, page 11, line 4, at end insert—
“(3) Such processing does not satisfy that requirement if the processing is carried out for the purposes of measures or decisions with respect to a particular data subject, unless the purposes for which the processing is necessary include the purposes of approved medical research.(4) In this section—“approved medical research” means medical research carried out by a person who has approval to carry out that research from—(a) a research ethics committee recognised or established by the Health Research Authority under Chapter 2 of Part 3 of the Care Act 2014, or(b) a body appointed by any of the following for the purpose of assessing the ethics of research involving individuals—(i) the Secretary of State, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland department;(ii) a relevant NHS body;(iii) United Kingdom Research and Innovation or a body that is a Research Council for the purposes of the Science and Technology Act 1965;(iv) an institution that is a research institution for the purposes of Chapter 4A of Part 7 of the Income Tax (Earnings and Pensions) Act 2003 (see section 457 of that Act);“relevant NHS body” means—(a) an NHS trust or NHS foundation trust in England,(b) an NHS trust or Local Health Board in Wales, (c) a Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978,(d) the Common Services Agency for the Scottish Health Service, or(e) any of the health and social care bodies in Northern Ireland falling within paragraphs (a) to (d) of section 1(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)).(5) The Secretary of State may by regulations change the meaning of “approved medical research” for the purposes of this section, including by amending subsection (4).(6) Regulations under subsection (5) are subject to the affirmative resolution procedure.”
Amendments 72 to 77 agreed.
78: After Clause 18, insert the following new Clause—
“Minor definitionMeaning of “court”
Section 4(1) (terms used in this Chapter to have the same meaning as in the GDPR) does not apply to references in this Chapter to a court and, accordingly, such references do not include a tribunal.”
Amendment 78 agreed.
78A: After Clause 18, insert the following new Clause—
“Duty to notify of data protection breaches due to ransomware attacks
(1) In addition to notifying the Commissioner of a personal data breach under Article 33 of the GDPR, a data controller must also notify the relevant police force if the data breach was the result of a ransomware attack.(2) In this section,“ransomware attack” means an attack of a form of malware which holds the information on a user's computer hostage until a ransom fee is paid; and“police force” has the same meaning as in section 3 of the Prosecution of Offences Act 1985.”
My Lords, the amendment in my name, and that of my noble friend Lord Stevenson of Balmacara, would insert a new clause in the Bill that requires a data controller to notify both the Information Commissioner and the police if they are subject to a ransomware attack. Ransomware attacks involve hackers taking control of your information held on a computer and agreeing to release the information back to you only on the payment of a large sum of money. It is kidnapping not of a person but of information.
Apparently thousands of UK businesses have paid these ransom demands and do not bring these issues to the attention of the authorities for fear of damaging their reputation. This is a really serious issue, and one that we cannot allow not to be addressed. I find it shocking that companies are paying these ransom demands, effectively on the quiet. The amendment would make it a legal requirement to notify. It is only by being able to understand the scale of these attacks and understand what has happened—whether or not it is successful is irrelevant—that the authorities can undertake the important work of analysis needed to prevent these attacks happening in the future.
I would go further, and say that it is irresponsible of data controllers or their businesses and organisations not to come forward to notify the proper authorities. They are vulnerable and making the problem worse by hindering the efforts to tackle the problem. Not only are they at risk of whoever is behind the attack coming back for more money later—having paid the hacker, the person will be seen as an easy touch—they are exposing other people, businesses and organisations to this form of attack in the future. My amendment would require notification, and I look forward to a detailed response to the issues I have raised. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Kennedy, for his amendment on data protection breaches and ransomware attacks. The repercussions of such attacks are felt by everyone, whether or not they are a direct victim of the crime. It is estimated that in 2016 the cost of fraud and cybercrime in the UK was £193 billion, with the full social cost likely to be much higher. It is therefore essential that stringent measures are in place in legislation to ensure that cyberattacks and fraud are prevented, and any perpetrators found and stopped.
We, nevertheless, believe that Amendment 78A is unnecessary. Article 33 of the GDPR, referenced in the noble Lord’s amendment, requires the data controller to inform the Information Commissioner within 72 hours of all data breaches, including as a result of ransomware attacks. The controller is required to provide information of the likely consequences of the personal data breach, and to describe the measures taken or proposed by the controller to address the breach. There is one exception, given in Article 33, for breaches unlikely to result in a risk to data subjects, but that hardly seems relevant in cases where hackers have proven access to the data in question.
The GDPR does not require data controllers to report cyberattacks to the relevant police forces, for good reason. It is well understood that the Information Commissioner has the expertise and resources to take the appropriate and necessary action in the first instance, including, if she deems it appropriate, referrals to the police or to investigate and bring prosecutions herself under data protection law. I am also puzzled by the amendment’s intention to single out ransomware as the only form of cyberattack worth reporting to the police. A huge range of cyberattacks cause substantial distress and harm to individuals, such as insider attacks, attacks from third countries and other cybercrimes, such as malware and phishing. In addition, organisations can report cyberattacks or fraud to Action Fraud, which in turn ensures that the correct crime reporting procedures are followed. This organisation is overseen by the City of London Police, the national lead for economic crime, and we believe that it represents an effective and scalable structure. For the reasons I have stated, therefore, I would be grateful if the noble Lord would withdraw his amendment this evening.
I am happy to withdraw my amendment this evening. I wanted to raise the issue here. The Minister cited the figure of £193 billion lost through these and other forms of attacks—he went through a number of them—and this is a very serious matter. I hope that he is correct that companies are required to notify the Information Commissioner on the back of this legislation. This is very serious. I hope that he is correct that it is not necessary to go to the police—the sums of money that he mentioned are absolutely shocking. At one point, he said that the Information Commissioner can start prosecutions. That is fine, if we can find the people behind the crime and if they are in this country. If they are somewhere in lands far away, I wish him all the best, but I suspect that we will have some trouble in catching the perpetrators or bringing them to justice. My worry is that, because of reputational damage, companies will be reluctant to notify anyone about this stuff. It is very serious.
Can I just echo what the noble Lord says? We agree that it is serious, which is why we have set up the National Cyber Security Centre to help to protect public services online and why the Chancellor allocated nearly £2 billion for cybersecurity when he launched that centre.
It is very pleasing to hear that. I welcome that, but these are matters that we will have to keep under review. Unfortunately in this world, the people involved in this stuff are usually quite skilful and bright and can keep one step ahead of the law or the people trying to catch them. We should keep these matters under review but, unfortunately, they are not going to go away. My worry is that these crimes are committed many miles from these shores and catching the perpetrators is the problem. However, I am very happy at this stage to withdraw my amendment.
Amendment 78A withdrawn
Clause 19: Processing to which this Chapter applies
Amendments 79 and 80
79: Clause 19, page 11, line 22, leave out “carried on”
80: Clause 19, page 11, line 24, leave out “of personal data that” and insert “otherwise than by automated means of personal data which”
Amendments 79 and 80 agreed.
Clause 20: Application of the GDPR to processing to which this Chapter applies
81: Clause 20, page 12, line 19, after “GDPR” insert “, having regard to any relevant Recital of the GDPR,”
My Lords, I am grateful to my noble friend Lord Kennedy for supporting me and to the noble Lord, Lord Clement-Jones, for adding his name to this amendment, which is one in search of an easy resolution—and I hope it can be done very quickly. The Minister and his colleagues have from time to time had to animadvert the recitals of the GDPR as evidence and support for claims that they make. I have no concerns with them doing that because I am quite happy with the recitals—I like them, understand them and think they are rather useful things to have around. What I do not understand is how that will happen when we go to the applied GDPR, when the only issue that will be able to be tested in court, as I understand it, is the GDPR itself. Therefore, I went to the Public Bill Office. Normally, its staff are difficult friends for an Opposition seeking to amend a Bill. They throw unforeseen, difficult and complicated legal issues in our way and make it very difficult for us to get to where we want. However, on this occasion, they said, “Leave it with us. We know exactly what you want. We will put an amendment together that will satisfy every concern you have”. It is there in front of us as Amendment 81, which I beg to move.
My Lords, I am very keen to support this extremely useful amendment from the noble Lord, Lord Stevenson. If I had £5 for every mention of a recital in Committee and on Report, I would have the price of an extremely good Christmas dinner for me and quite a few of my friends. Only today, the noble Baroness, Lady Williams, prayed in aid a recital in an earlier rather useful debate on Clause 13. We really need to know what the status of these recitals is both pre and post Brexit. Is it that of an immediate aid to interpretation or an integral part of the law, or is it more like that of a Pepper v Hart statement, to be used only when the meaning is not clear in the Bill or the GDPR, or where there is ambiguity? Or do these recitals impose certain obligations, as I think has been implied on a number of occasions by Ministers?
At this time of night I cannot remember whether it was in Alice in Wonderland or Through the Looking Glass that a phrase was used along the lines of, “Words mean what I say they mean”. I rather feel that recitals are prayed in aid at every possible opportunity when it is convenient to do so without specifying exactly what their status is. We will need to establish that very clearly by the time we come to the end of the Bill.
At the risk of making myself unpopular for one more minute, all I can say to my noble friend is: Humpty Dumpty.
At an earlier stage of the Bill I asked how we would interpret a particular provision when we were no longer tethered to the European Court of Justice. The response I received was that it would be interpreted in accordance with UK law at the time. If this amendment is agreed, it will be an extremely helpful contribution to UK law applying while taking into account the impact of the recitals.
My Lords, I cannot think of a better way to end our debate than with a discussion on recitals, which we have talked about a lot during the course of this Bill. I point out to both noble Lords that it was not only me who referred to recitals; they have both done so ad nauseam.
Sorry, I should have said “ad infinitum”—that is perfectly correct.
The Government do not dispute that recitals form an important part of the GDPR. As I said, we have all referred to one recital or another many times. There is nothing embarrassing or awkward about that. It is a fact of EU law that courts often require assistance in properly interpreting the articles of a directly applicable regulation—and we, as parliamentarians, need to follow that logic, too.
I would remind noble Lords that the Government have been clear that the European Union (Withdrawal) Bill will be used to deliver two things which are very important in this context. First, under Clause 3 of the withdrawal Bill, recitals of directly applicable regulations will be transferred into UK law at the same time as the articles are transferred. There is no risk of them somehow being cast adrift. Where legislation is converted under this clause, it is the text of the legislation itself which will form part of domestic legislation. This will include the full text of any EU instrument, including its recitals.
Secondly, Clause 6 of the withdrawal Bill ensures that recitals will continue to be interpreted as they were prior to the UK’s exit from the EU. They will, as before, be capable of casting light on the interpretation to be given to a legal rule, but they will not themselves have the status of a substantive legal rule. Clause 20(5) of this Bill ensures that whatever is true for the interpretation of the GDPR proper is also true for the applied GDPR.
More than 10,000 regulations are currently in force in the European Union. Some are more important than others but, however you look at it, there must be more than 100,000 recitals across the piece. The European Union (Withdrawal) Bill provides a consistent solution for every single one of them. It seems odd that we would want to use this Bill to highlight the status of 0.1% of them. Nor, as I say, is there a need to: Clause 20 already ensures that the applied GDPR will be interpreted consistently with the GDPR, which means that it will be interpreted in accordance with the GDPR’s recitals wherever relevant, both before and after exit.
There is one further risk that I must draw to the House’s attention. Recitals are not the only interpretive aid available to the courts. Other sources, such as case law or definitions of terms in other EU legislation, may also be valid depending on the circumstances. Clause 20(5) as drafted provides for all interpretive aids to the GDPR to apply to the applied GDPR. By singling out recitals the amendment could uniquely elevate their status in the context of the applied GDPR above any other similar aids. This, in turn, may cause the GDPR and applied GDPR to diverge.
The drafting of the noble Lord’s amendment is also rather perplexing. It seeks to affect only the interpretation of the applied GDPR. The applied GDPR is an important part of the Bill but it is relatively narrow in its application. I am not sure it has the importance that the noble Lord’s amendment seeks to attach to it. It is, at most, a template for what will follow post exit.
I will not stand here and say that the noble Lord’s amendment would be the end of the world. That would be disingenuous. However, it is unnecessary, it risks unintended consequences and it does not achieve what the noble Lord is, I think, attempting. For those reasons, I am afraid I am unable to support his amendment this evening and I ask him to withdraw it.
That is a very disappointing end to a rather splendid day. If you read Amendment 81 closely, it simply says “having regard to”, which is probably the weakest form of expression you can find in any legal circumstance. I am a bit surprised that the Minister could not come to a better conclusion than he did. In fact, we got a sort of Pepper v Hart-ish approach to it; we can rely on it but it is not as good as it would have been if we had agreed Amendment 81. I can say nothing more on this except that I am sure that we will return to this at some stage. I beg leave to withdraw the amendment.
Amendment 81 withdrawn.
Consideration on Report adjourned.
House adjourned at 10.23 pm.