Liam Byrne
MP for Birmingham Hodge Hill and Solihull North · Labour · United Kingdom
“The loss of 4,000 jobs at Jaguar Land Rover is a body blow for workers, families and communities across the west midlands, so I commend Richard Parker, the Mayor of the West Midlands, for moving quickly on Monday to put £500,000 on the table to help ensure that everybody gets back to work.”
“I wholeheartedly welcome this well-rounded statement from the Foreign Secretary, and put on record my thanks to the new Prime Minister for the hard yards that I know he has put in over recent days and weeks.”
“I am grateful to my hon. Friend for giving way, and I offer my warmest congratulations to her on her appointment to the role; she will be a brilliant Minister.”
“Let me start with a word of thanks to my hon. Friend the Member for Chester North and Neston (Samantha Dixon), who is not in her place, who said quite rightly that an awful lot has changed since the Bill was first introduced to this House. Indeed, a lot has been revealed over the course of the summer.”
“The effect of new clause 34 would be to ban off-ramping, ban new forms of digital currency transactions and ban memecoins, which are exactly the kind of measures that Ministers now need to bring forward. If we want to take the crypto system out of political finance, this is what we need to do.”
“No doubt we will learn that Mr Cottrell was in fact on the electoral register when that money was passed. No doubt we will discover that his mother, Fiona Cottrell, declared and did not disguise the fact that the money had ultimately come from her son.”
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“The debate rehearsed in the other place was whether we should acquiesce in a derogation that the Government have exercised to set the age of consent for personal data sharing at 13, as opposed to 16, which other countries have adopted. There was widespread concern that 13 was too young. Many members of the Committee will have experienced pressing the agree button when new terms and conditions are presented to us on our updates to software on phones, or privacy settings presented to us by Facebook; privacy settings, it is now alleged, are not worth the paper that they were not written on. Debates in the other place centred on what safeguards could be wrapped around children if that derogation were exercised and the age of consent left at 13.”
“We now have the ridiculous situation that the Information Commissioner must declare that she is going to court to get a warrant to investigate the servers of Cambridge Analytica, and to see whether any offence has been committed.”
“Some have unfairly called the Matt Hancock app one of the features of that wild west, but I would not go that far, despite its slightly unusual privacy settings. None the less, there is now cross-party consensus that the regulatory environment that has grown up since the 2000 e-commerce directive is no longer fit for purpose. Yesterday, the Secretary of State helpfully confirmed that that directive will be modernised, and we will come on to discuss new clauses that suggest setting a deadline for that. One deficiency of today’s regulatory environment is the inadequate power that the Information Commissioner currently has to access information that is important for her investigations. We have a wild west, we have hired a sheriff, but we have not given the sheriff the power to do her job of keeping the wild west in order.”
“Clause 131 deals with disclosure of information to the Information Commissioner, and this is probably a good point at which to ask whether the Information Commissioner has the right level of power to access information that is pertinent to her investigations into the misuse of information. Thanks to The Guardian , The New York Times , and particularly the journalist Carole Cadwalladr, we have had the most extraordinary revelations about alleged misbehaviour at Cambridge Analytica over the past couple of years. Indeed, Channel 4 News gave us further insight into its alleged misdemeanours last night. We have a situation in social media land that the Secretary of State has described as the “wild west”.”
“Will she say more about the Secretary of State’s declaration to the House last night that he would be introducing amendments to strengthen the Commissioner’s power in the way that she requested? When are we going to see those amendments? Are we going to see them before this Committee rises, or at Report stage? Will there be a consultation on them? Is the Information Commissioner going to share her arguments for these extra powers with us and with the Secretary of State? We want to see a strong sheriff patrolling this wild west, and right now we do not know what the Government’s plan of action looks like.”
“If I wanted to hide something from a newspaper and I thought that the newspaper was going to print it inappropriately, I would apply for an emergency injunction to stop the newspaper running it. I do not understand why the Information Commissioner has had to broadcast her intentions to the world, because that has given Cambridge Analytica a crucial period of time in which to do anything it likes, frankly, to its data records. The quality of the Information Commissioner’s investigation must be seriously impaired by the time that it has taken to get what is tantamount to a digital search warrant. Is the Minister satisfied in her own mind that clause 131 and its associated clauses are powerful enough?”
“The Minister will notice that I have tabled a number of new clauses that would, for example, bring election law into the 21st century. I think that the Secretary of State left the House with the impression yesterday that amendments to strengthen the power of the Information Commissioner would be pretty prompt. It is hard to see another legislative opportunity to put that ambition into effect, so perhaps the Minister will tell us whether we can expect amendments soon.”
“I did not want to intervene, but I have been struggling with the matter myself. There are allegations that a significant donor to Leave.EU was supported in that financial contribution by organisations abroad. As I spoke to the Financial Conduct Authority and tabled questions to the Treasury, it was revealed that there were no data sharing gateways between the Electoral Commission and the FCA.”
“Could she clarify whether such amendments will be tabled?”
“On a point of order, Mr Streeter. The Minister suggested this morning that the Secretary of State for Digital, Culture, Media and Sport had not committed to the House yesterday to introduce powers to strengthen the Information Commissioner. However, on checking Hansard over lunch, I noticed that the Secretary of State said that where there is non-compliance with an audit, “there is a very serious fine, but the question is whether the criminal penalties that can be imposed in some cases should be further strengthened. That detail is rightly being looked at in the discussions on the Data Protection Bill.” —[ Official Report , 19 March 2018; Vol. 638, c. 51.] Most of us would assume that “further strengthened” meant that further powers would be suggested, but the Minister seemed to say this morning that that would not be the case.”
“It is right that it should go ahead, and that is fully our intention.” —[ Official Report , 29 November 2012; Vol. 554, c. 458.]”
“That is why the House united not just to begin the Leveson inquiry, but to propose a second part to look into the question of police collusion. That element was not possible at the time because of the cases that were coming to court, both civil and criminal. The solution proposed by Mr Cameron, the then Prime Minister, which I believe was supported by the present Secretary of State for Digital, Culture, Media and Sport, was that there should be a second half of the Leveson inquiry. Mr Cameron said: “One of the things that the victims have been most concerned about is that part 2 of the investigation should go ahead—because of the concerns about that first police investigation and about improper relationships between journalists and police officers.”
“I want to say a few words in defence of the clause and touch on the amendments the Government have proposed. The substance of the clause is an attempt to ensure that we activate the second half of the Leveson inquiry, to look into allegations of collusion between the police and members of the fourth estate. It is worth reminding ourselves of the absolute horror with which we all looked at the revelations about News International’s malpractice. The idea that individuals from national newspapers could hack phones of pretty much anybody in the country, including most notoriously the phone of poor Milly Dowler, sell that information and turn it into front-page newspaper stories, absolutely shocked us. Serious questions were asked about the way the police investigation was conducted.”
“Like the hon. Gentleman, I wish that the entire media operated with the editorial standards of BBC Essex and the Swindon Advertiser . I was struck by a remarkable statement: that he believes that the mispractice or malpractice still goes on—I have written down carefully the words that he used. I cannot, therefore, understand why the conclusion he draws from the persistence of malpractice is to look the other way and to shut down an inquiry into whether it took place and who the guilty are. I would be grateful if he can correct me on my misunderstanding.”
“The Minister is cheering on the hon. Member, but will he for complete clarity remind the Committee who proposed this architecture in the first place? From memory, it was his right hon. Friends the Members for West Dorset (Sir Oliver Letwin) and for Basingstoke (Mrs Miller).”
“One of the reasons why the industrial and scientific revolutions flourished in this country was that we had a culture of free speech—something that Voltaire admired greatly when he spent time in London. However, the reality is that bad behaviour by the press has destroyed people’s reputations without any real chance of recovery. In a world of social media, when reputations are destroyed, the smears stick to people like tar. They do not go away; they stay with people and scar them for life.”
“I am grateful to you, Mr Streeter, for setting that out so clearly. I want to speak in defence of clauses 167 and 168. I am clearly an innocent abroad in a world that is not innocent. I struggle to follow the argument made by the hon. Member for North Devon. On the one hand he was pretty insistent that malpractice continued, but then invited us to believe that somehow the world had changed comprehensively. Either the world has changed or it has not. I fear that the world has changed a bit, but not enough, so there is still a need for an effective means of offering justice to those who have been maligned by newspapers. The architecture set up by the right honourable Members for West Dorset and for Basingstoke was complicated. We have a fine tradition of a free press, going back to the restoration.”
“The hon. Gentleman served on The Daily Telegraph long enough to know that the IPSO code today bears a striking resemblance to the old editors’ code. Perhaps he could give us the benefit of his experience and tell us whether he is satisfied that the IPSO code meets the tests set out by Sir Brian Leveson and agreed in all parts of the House.”
“The hon. Gentleman was an experienced and respected journalist and has a track record on which to draw in his reflections. He did not quite answer the question whether he thought the code of conduct that IPSO regulates meets the tests set out by Sir Brian Leveson and agreed on both sides of the House. Will he reflect on whether the code of conduct is prone to changes driven through by newspaper editors? There is no guarantee that newspaper editors cannot influence that code, and its shape and bite, in the years to come.”
“Equally, he must accept that, without a form of low-cost arbitration, justice is denied to people who are maligned by newspapers.”
“Let us be real about this. The idea that companies such as Facebook or Cambridge Analytica will desist from legal action to shut down stories that they do not like—the idea that that will not happen at any time in the future, even under the existing regimes—is for the birds. The argument that is better made by some of the hon. Gentleman’s colleagues is to do with the risk to local newspapers, most of which are now owned by Trinity Mirror, which makes tens of millions of pounds in profit, or the Johnston Press. The point is that vexatious claims can be shut down and thrown out at any one of three stages by the regulator or, before the case goes to arbitration, by the arbitrator or by a judge, so the incidence of costs arising will not be on the scale the hon. Gentleman anticipates.”
“Finally and very briefly, the hon. Gentleman is making an eloquent argument. Why, then, was that proposed by the right hon. Members for West Dorset and for Basingstoke? How did they get it so profoundly wrong?”
“One way in which the Government could row in behind a frustrated Information Commission would be to deny Government contracts to companies that are behaving badly. I understand that Cambridge Analytica has Government contracts with both the Foreign Office and the Ministry of Defence. Are they under review?”
“I understand that the Minister cannot answer the detailed question about Government contracts with, for example, Cambridge Analytica, but does she think, philosophically, that a Government would and should reconsider contracts with companies that are not complying with a reasonable request made by the Information Commissioner?”
“How will clause 145 bite on a company such as Facebook that may be responding to an information notice issued by the Information Commissioner? The company may have told the Information Commissioner that it was all fine, the data was all deleted and everyone was perfectly satisfied, but a couple of years later it transpires that that is not the case. What would then happen to a company such as Facebook? Is the Minister satisfied that the proposed sanctions and penalties are strong enough? It is not clear to me, given what we now know, that these sanctions are strong enough at all.”
“The operation of clause 145 is a matter of great public concern this week, because of the revelations that an app that sat on Facebook collected data for a particular purpose, but they were then re-used by Cambridge Analytica for an entirely different purpose, to bend the outcome of particular elections and, quite possibly, referendums too. Facebook had made a statement that the matter had been resolved a couple of years ago and that the relevant data in question had been deleted. The story has developed over the past 24 hours and former Facebook employees are now alleging that it was not simply 50 million records that were collected for one purpose and re-used for another; there may have been hundreds of millions of records collected for one purpose and used for another.”
“Will the Minister tell us how the balance will play out in practice? How do we protect the rights of news organisations to run good archives for the benefit of public interest journalism in the future?”
“The example put to us last night was of rich individuals seeking to create a different kind of history—a different kind of past—to bend deliberately the future of reporting by eradicating a record that might be true. The risk that was put to us is that, very often, newspaper legal directors—the poor things often have to advise on this decision—will sometimes conclude that the game is just not worth it and therefore give in to the rich individual to avoid damaging and expensive legal action and delete the records from their archives. This is a difficult area, where balances have to be struck, but it is a form of litigation that will doubtless continue into the future. We might have just decided to deny access to ordinary people to correct media malpractice, but rich individuals will continue to bring their cases.”
“The scenario that was put to us last night by lawyers representing a number of those organisations that wanted to give us their views about clauses 168 and 169 was that successful journalism—whether The Daily Telegraph or the Sw indon Advertiser —will often rely on excellent archives. If rich individuals are seeking to create a different truth and a different history, and to exercise their rights under the clause, a risk will be created for those media organisations. I am more worried about the media organisations’ rights than I am about the Natural History Museum and the BBC, because I think the Minister’s Department will do a good job of working out where to put that grey line round what should be protected and what is up for grabs.”
“The clause bites on the question of individuals’ rights to the erasure of personal data and rectification. I want to give the Minister an opportunity to update the Committee on her conversations with media, culture and other organisations about how she is going to balance the implementation of clause 150 with the ambitions of those organisations to protect archives—not just archives of very large sets of artefacts, such as the Natural History Museum, but those that are run by News UK or Trinity Mirror or the BBC. The risk that is obviously posed by those organisations is that they often rely on very good, detailed and often quite old archives of news information.”
“A matter of great concern is that the Information Commissioner has to go through what sounds like a laborious process to get the warrant needed to conduct an investigation that is obviously in the public interest. When we secure, for example, emergency injunctions to stop the publication of material that people do not want published, or when magistrates issue search warrants, most of us with experience of this at a local level would observe that such warrants are often issued in a much faster and less high-profile way than the process the Information Commissioner appears to have to go through. In effect, Cambridge Analytica has had 48 hours’ notice of the Information Commissioner’s concerns— [ Interruption. ] I am sorry, but I do not know whether the Minister wants to intervene on that—”
“Again, on this point, we would benefit from some clarification from the Minister. The story that broke this morning was that the Information Commissioner had, in effect, to go to court to get her warrant to investigate what Cambridge Analytica was up to. There was some speculation as to why Facebook was able to exercise some contractual rights and turn up at the offices of Cambridge Analytica to conduct an inspection. The reports are that, as the situation played out, the Information Commissioner had to tell Facebook legal officers to stand down and to stop what they were doing. As it happened, Facebook wisely decided to follow the Information Commissioner’s orders.”
“I am sorry, Mr Hanson. I was not sure whether the Home Office Minister wanted to clarify that point. We know that warrants have to be sought and judicial oversight is important, but the process appears slightly cumbersome. I wonder whether the Minister can tell us whether she is satisfied that the process and the powers that we will equip the Information Commissioner with are as smooth and slick as the new enforcement environment requires.”
“I think we could all do with a bit of clarity, which did not quite emerge in the last debate. My hon. Friend the Member for Sheffield, Heeley, makes an important point: in light of this week’s news, there is real concern that the maximum possible sentences should be on the books to punish people who try to get in the way of investigations by the Information Commissioner. Can the Minister say whether the Information Commissioner is currently able to prosecute people for getting in her way, and whether they could go to jail? That would be clarification No. 1. Clarification No. 2 would be whether, under the Bill the Minister is asking us to agree, that custodial sentence would still remain.”
“Given the clarity that the Minister has now furnished for the Committee, and given the scale of wrongdoing that is alleged about Cambridge Analytica and potentially Facebook this week, the question on clause 157 is whether she is satisfied that financial penalties are going to do the job in the years to come. Otherwise, is this a clause on which we need to reflect on Report if not now so that if custodial sentences are not currently available, we might consider introducing them for people who appear determined to move heaven and earth to get in the way and obstruct an Information Commissioner inquiry? Could we perhaps come back to that on Report, rather than simply rely on sanctions such as fixed penalty notices?”
“I beg to move amendment 157, in clause 170, page 96, line 25, at end insert— “or (d) was done in the process of making a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)).”. This amendment seeks to ensure that the offences listed in the offences of the Bill do not infringe on a worker’s ability to raise public interest concerns about wrongdoing, risk or malpractice.”
“I therefore hope we can have a useful debate about why the Government have chosen to introduce new definitions when it is not clear that they are improvements on well-established employment law that dates back to the Employment Rights Act 1996. Let us hear what the Minister has to say, but I hope the Government reflect on the arguments we rehearse this afternoon and introduce further enhancements and perfections on Report.”
“Indeed, it was so well defined and grounded that the Government decided to use that definition in the 2017 Act. It is not clear why the Bill seeks to create alternative definitions and therefore the need for alternative tests and guidance in the courts when we have a definition we can rely on. The Opposition amendment would return us to what we think was sensible drafting in the Digital Economy Act. That Act is not ancient history—it was only 12 months ago. Otherwise, the risk is that the Government, employers, courts and trade unions will get into an awful muddle as they try to understand which legislation protects whistleblowers in new circumstances. None of us wants to create a situation of uncertainty and ambiguity that stops whistleblowers from coming forward with important information.”
“That uncertainty and ambiguity will jeopardise an individual who might have something important to bring to the attention of the outside world. Exceptions to violations in personal data confidentiality were recently considered by the Government in section 58 of the Digital Economy Act 2017, which provided a far more comprehensive list of exceptions. Where there is overlap between the Bill and the Digital Economy Act, it appears that the Act deals much more satisfactorily with whistleblowers. I remind the Committee that section 58 of the Act says that the offence does not apply to a disclosure “which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996”. We therefore have a pretty well established and grounded definition of exceptions.”
“However, the risk is that the ambiguities that frame the protection of whistleblowers in the Bill are such that many are concerned that whistleblowers will not be given the right protection against data protection legislation. The Government recognise that it is important to protect whistleblowers. There is a protection in clause 170 for whistleblowers bringing forward information that is “justified as being in the public interest.” The argument put to us by Public Concern at Work and others is that that approach is unlikely to be effective. We are told that there will be a new test in law, which will therefore require guidance from the courts. Until that time, the precise meaning will obviously be a bit moot, and the scope of the situations that the Government seek to protect will remain a little uncertain.”
“I am grateful to my hon. Friend the Member for Edinburgh South for keeping me warm and enthused. The amendment is important. None of us wants to damage the right and power of whistleblowers to bring important information into the public domain, sometimes to the attention of regulators, sometimes to the attention of organisations, such as the Health and Safety Executive, and sometimes to the attention of Members. Over the years, we have put in place a good regime in order to ensure that whistleblowers are afforded protections that allow them to come forward with information that is in the public interest. The reason we have to consider that now is that data protection legislation is being strengthened by the incorporation of GDPR into British law.”
“She seeks to create an extension in law to ensure that there is a public interest definition in the round—I can see the enlargement that she is trying to make—but I hope she reflects before Report stage on the challenge that new definitions will have to be tested in court, which will create ambiguity and risk. I do not think she wants to create that risk, but the strategy she sets out does not completely delete it and it remains a concern. I will happily withdraw the amendment, but I ask the Minister to reflect on that point before Report.”
“I am grateful to the Minister for that reply. She says that she wants to try to update the legislation. I understand what she is trying to do and why she does not accept that there is a complete parallel with the Digital Economy Act. None the less, the new definition will need to be tested in court, new guidance will need to be issued and new ambiguity will therefore be created, which brings with it the risk that important whistleblowers will be dissuaded from bringing forward information that is in our interest and letting it see the light of day. I hope the Minister reflects on that further.”
“I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 170 ordered to stand part of the Bill. Clause 171 Re-identification of de-identified personal data Question proposed, That the clause stand part of the Bill.”
“It tries to tighten to lockstep that we have to maintain with European data protection regimes, which will be good for exports, services and the British economy, and the Government should accept it.”
“I would like to say a word in support of this important amendment. We had a rich and unsatisfactory debate on the incorporation of article 8 of the European charter of fundamental rights into British law. We think that that would have helped the Government considerably in ensuring that there is no divergence between the European data protection regime and our own. If the Government are successful, they will operate on different constitutional bases, and there is therefore a real risk of divergence over the years to come. I think that everyone on the Committee is now pretty well versed in the damage that that would do to British exports, many of which are digitally enabled. This is a really helpful amendment.”
“The Minister is trying to protect a discretion that sounds like the defence of a right to depart from EU case law to such an extent that we might jeopardise an adequacy agreement. Surely the point of this amendment is to keep us in lockstep, to de-risk that adequacy agreement for the years to come. That surely must be an object of her Government’s policy.”
“I do not quite follow the Minister’s argument. On the one hand, she says that it is the object of Government policy to secure an adequacy agreement and presumably keep that adequacy agreement, if not, indeed, go beyond it. She is now seeking to defend a flexibility that would allow some kind of departure from European norms. I cannot understand how she can quite want her cake and eat it.”
“Will he confirm not only that the Information Commissioner will investigate this breach, but that the full weight of Companies House and the Serious Fraud Office are behind it, so that if these people need to be struck off, they are struck off forthwith?”
“If he does so, we will back him on them. Will he also now accept our amendments to set a deadline for modernising the e-commerce directive, which treats such companies under laws that were invented before they were even born? Will he think again about making it possible, in the way that we have set out, to bring class actions where data rights are breached so that they are actually accessible to people, and will he support our amendments to require disclosure of funding for the dark social ads that we know can influence elections and, indeed, referendums? The final point for the Secretary of State to consider is whether the directors of Cambridge Analytica can still be judged fit and proper people to hold directorships.”