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Roper, L.
Russell-Johnston, L.
St. John of Bletso, L.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Taverne, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tonge, B.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wright of Richmond, L.
Young of Hornsey, B.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bilston, L.
Borrie, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.

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Grantchester, L.
Greengross, B.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macaulay of Bragar, L.
McDonagh, B.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Moonie, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Paul, L.
Pitkeathley, B.
Prosser, B.
Ramsay of Cartvale, B.
Rea, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Warner, L.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.15 pm

[Amendment No. 92A not moved.]

Baroness Miller of Chilthorne Domer moved Amendment No. 92B:

The noble Baroness said: My Lords, we on these Benches are very glad that the Government did not carry out their threat to remove Clause 76 because of all the pressures they were under. We are relieved to see that it is still in the Bill, and that they have tabled Amendment No. 94C, which answers some of the worries about journalism. That improves the measure substantially as there were some genuine worries about increasing a penalty from a fine, which a newspaper as a corporation can pay, to a threat of imprisonment, which would inevitably land on an individual journalist. That takes the question of the freedom of the press into a different place. The Government have correctly recognised that and have tabled their amendment.

I am not quite so keen on government Amendment No. 94B, which is the secondary legislation to

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introduce the power to alter the penalty. Although that secondary legislation will come before Parliament to be debated, we will not be able to amend it. I appreciate that the Government were between a rock and hard place, the rock being the Information Commissioner—who has done a tremendous job; Clause 76 reflects a lot of his work suggesting that there should be higher penalties in cases where people commit data protection offences—and the hard place being the Murdoch press, which wants to defend the right of some of its establishment to commit undesirable practices. When I asked the ministerial team where the pressure to exclude this clause was coming from, it was quite forthcoming that it was from Paul Dacre and Rebekah Wade. The broadsheets have taken an interesting line on this and have expanded the issue fully. We are the better for the debate about where journalists stand on this. I shall be interested to hear what the Minister has to say. I beg to move.

Lord Henley: My Lords, as the noble Baroness, Lady Miller, reminded the House, the Government, in the form of the noble Lord, Lord Hunt, threatened to remove this clause entirely because they were so worried about time—this was the Bill that they introduced in June or July last year. If I remember correctly, when this was discussed in Committee, the noble Lord said that the Government would remove the clause if we could not reach agreement about some satisfactory compromise.

I am not sure that we have necessarily reached that compromise, but the Government have at least brought forward an amendment that does something—even if, as the noble Baroness puts it, they are between the proverbial rock and hard place. I do not think that we would want to oppose the Government provision, even if it is not utterly satisfactory, but at this stage we want to hear from the Minister exactly what the provision does and how it does it. In the light of that, I intend to sit down and listen to what he has to say.

The Earl of Erroll: My Lords, yesterday, I was at Infosec on a panel with the Information Commissioner on this very subject. It is a huge problem. As the Information Commissioner says, some sections of the press have been concerned that the provision could have a chilling effect, but the interesting thing is that no new criminal offence is being created and there is already a defence for journalists whose activities can be justified as being in the public interest. So why are they so worried? The answer is that the previous penalties did not deter them. Reading the commissioner’s excellent report, What Price Privacy Now?, we find that the Daily Mail tops the poll with 952 transactions positively identified, with 58 journalists buying information from databases. That is sensitive information about people that could be used. If the journalists were not actually working for the newspaper or moved, they could be misusing information. We have to tighten up on this. Therefore, although we would have preferred the tighter clause, we welcome what the Government are trying to do here.

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Lord Hunt of Kings Heath: My Lords, in my usual place, between a rock and a hard place, I respond positively to both the noble Baroness, Lady Miller, and the noble Lord, Lord Henley, for what I think is a general welcome for the work that has been undertaken since our previous helpful debate in Committee. I will come to the point raised by the noble Earl in a moment, because it is very important and goes back to the reason why the Government brought forward the provisions in the first place.

As noble Lords will know, Section 60 of the Data Protection Act 1998 currently specifies the penalties for offences committed under Section 55 of that Act—the unlawful obtaining, disclosing, procuring or selling of personal data. It provides for a maximum penalty of £5,000 on summary conviction and an unlimited fine for conviction on indictment. Given the very experience that the noble Earl raised today, Clause 76 sought to increase the maximum penalty for this offence to a custodial sentence of two years following conviction on indictment, in addition to the existing provision for fines, to make the offence really bite in view of the problems that have been brought to light, especially by the Information Commissioner.

On the other hand—this is where we came to the difficulty—as the noble Baroness, Lady Miller, suggested, there are concerns about the chilling effect of this increase in penalty on investigative journalism. Let me make clear, as I did in Committee, that the Government have no wish to curtail legitimate and responsible journalism. That was the basis on which I said that I intended to remove the clause unless we could find a satisfactory solution balancing the need to strengthen the protection of individuals’ rights and respect for their privacy on the one hand, and freedom of expression of the press on the other.

There has been a flurry of debate both within the media and in our discussions. I am glad to say that a satisfactory solution has been found, so we will not now simply remove Clause 76, but replace it by my Amendments Nos. 94B and 94C. The new clauses, and the associated consequential amendments, reflect the result of that extensive discussion. We think that that strikes the right balance. Here we have a strong signal that the lucrative and illegal trade in personal data will not be tolerated and that a stronger deterrent is available if that activity continues. If it did continue, the Government would bring an order before your Lordships’ House and in the other place.

Amendment No. 94B confers on the Secretary of State a power to make an order altering the maximum penalty for an offence under Section 55 of the Data Protection Act. The maximum penalty that could be specified in such an order is two years’ imprisonment. Under this new clause, the Secretary of State is required to consult interested parties, including the Information Commissioner and media organisations, before making such an order. Conferring a power to make an order in this way enables the Government to keep under review progress in combating the market in illegally acquired personal data before deciding in

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consultation with interested parties whether an increase in the maximum penalty for this offence would be appropriate.

In addition, the Government will work with the Information Commissioner, the media and other interested parties on raising awareness of how to avoid committing an offence. This will include training, an education and information campaign and other suitable activities. As part of its current review, the Sentencing Guidelines Council will produce guidelines on this offence in due course, which all courts will need to take into account.

Amendment No. 94C provides for an additional defence for Section 55 offences where the offender acted with a view to publishing for journalistic, literary or artistic purposes and in the reasonable belief that their actions were justified in the public interest. The noble Baroness, Lady Miller of Chilthorne Domer, has sought in some of her amendments to deal with this matter. I hope she will accept that my amendment does that.

I take this opportunity to thank all parties who have worked together to reach a solution, and I put on record the Government’s thanks for the tireless and highly respected work of the Information Commissioner, Richard Thomas, and his office, who have made such a compelling case for a serious sanction against people who deliberately or recklessly misuse personal data.

An order made under an order-making power is not subject to amendment, but I must say to the noble Baroness, Lady Miller, that it is subject to the affirmative procedure. Moreover, the Secretary of State must consult the Information Commissioner, and media organisations and other interested parties where he considers this appropriate, which means that there will be considerable discussion before an order is brought before your Lordships’ House. I hope that it will not be necessary to do so, because I hope that the very act of making these amendments will send the right signal. The Information Commissioner has made some very important and persuasive points in the past few weeks which, combined with the education programme that I also described, will I hope ensure that this is taken seriously and that we will not have to bring an order. If this does not work and it is clear that invasions of privacy continue, we will not hesitate to take action.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for the strength of his reply, which sends an important message to unprincipled newspapers that use this sort of information and encourage their journalists to do this sort of thing, thereby threatening the freedom of the press.

I do not envy the Government if their threat does not succeed and they have to have these discussions with the parties involved and bring in an order, because they will probably be in the same place that they were in between Committee and Report. The discussions will be very difficult. Nevertheless, this is an important line to have drawn, and the Government have certainly done a good job in doing so. I join the Minister in paying tribute to the Information Commissioner, who

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continues to highlight the issues of importance to the public incredibly effectively. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 [Imprisonment for unlawfully obtaining etc. personal data]:

[Amendments Nos. 93 to 94A not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 94B and 94C:

(a) on summary conviction, to imprisonment for a term not exceeding the specified period or to a fine not exceeding the statutory maximum or to both,(b) on conviction on indictment, to imprisonment for a term not exceeding the specified period or to a fine or to both.(a) in the case of summary conviction, 12 months (or, in Northern Ireland, 6 months), and(b) in the case of conviction on indictment, two years.(a) the Information Commissioner,(b) such media organisations as the Secretary of State considers appropriate, and(c) such other persons as the Secretary of State considers appropriate.“(ca) that he acted—(i) for the special purposes,(ii) with a view to the publication by any person of any journalistic, literary or artistic material, and(iii) in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest,””

On Question, amendments agreed to.

5.30 pm

Baroness Miller of Chilthorne Domer moved Amendment No. 95:

23 Apr 2008 : Column 1536

(a) intentionally or recklessly disclose information contained in personal data to another person,(b) repeatedly and negligently allow information to be contained in personal data to be disclosed, or(c) intentionally or recklessly fail to comply with duties under section 4(4).(a) was necessary for the purpose of preventing or detecting crime,(b) was required or authorised by or under any enactment, by any rule of law, or by the order of a court, or(c) was justified in the particular circumstances as being in the public interest.(a) a relevant authority under section 29, or(b) exercising a relevant function under section 31.

The noble Baroness said: My Lords, this amendment concerns the additional offences under the Data Protection Act that we believe should be brought in. Data controllers currently do not face anything like adequate sanctions if they intentionally or recklessly disclose information, or indeed are repeatedly negligent. We did not spend very much time on this issue in Committee because we were so taken with the fact that the Government might withdraw the entire clause, so we had a fairly limited debate. However, I went back and read what the Minister said:

On the face of it that is entirely reasonable, but we know the pressure of legislative time. The amendment is very simple in what it seeks to do and has the benefit of covering data breaches by government officials.

Goodness knows, this is not exactly a new issue. The Government have had time to address it. In 2002 in another place my honourable friend Paul Burstow revealed that a total of 1,354 government-owned computers had gone missing over the previous five years, while much more recently, as noble Lords will be aware, vast amounts of data, whether from Her Majesty’s Revenue and Customs or the health sector, have been lost. The issue has been around for a long time, and not only in government sectors. The private sector, as we know, can be negligent, and it can do all

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sorts of things with data that it should not do. Both the public and private sectors need to be covered by further sanctions, which is the reason for our amendment.

The Conservatives have also tabled an amendment in this group, to which I am sure they will speak. It has as many merits as our own when it comes to the public sector, but they have chosen to leave the private sector entirely out of it. The difficulty with that is that if you are a member of the public, it does not matter if it is the public sector or the private sector that has lost your data; the fact is, your data have been lost. The public need to depend on data controllers to be absolutely reliable and to do their utmost to safeguard people’s personal information. For that reason, we should aim to cover both public sector and private sector data controllers. With the increased blurring of the lines between the public and private sectors—I appreciate that this is often covered by contracts; indeed, I think the wording in the Conservative amendment mentions government contracts—it will not always be simple. Surely the public have an absolute right to expect data controllers in charge of any private information to be given immense incentives to be as careful as possible with it.

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