My Lords, this group comprises Amendments 106A to 106D and 181A and is the last group at the end of a long day.
Amendments 106A to 106C would introduce new defences to criminal offences under three statutes, the Computer Misuse Act 1990, the Bribery Act 2010 and the Data Protection Act 1998.
I turn to Amendment 106A. Section 1 of the Computer Misuse Act creates an offence effectively of using a computer to secure unauthorised access to data or to a program—in other words, what is conventionally called hacking into other people’s computers. The amendment would create a public interest defence to that offence. The defence proposed is directly in line with a defence that already exists under Section 55(2) of the Data Protection Act 1998, to which I will return in respect of Amendments 106C and 106D.
The amendment would place the onus squarely on the defence, stating:
“Subsection (1) does not apply to a person who shows”.
The defences are that the conduct which would be an offence was necessary for the purpose of preventing or detecting crime or was required or authorised by or under any enactment, a rule of law or by order of a court; or that the defendant acted in the reasonable belief that he had the right to carry out that conduct; or that he acted in the reasonable belief that he had relevant authority; or that he reasonably believed that the conduct was justified as being in the public interest; or that in the particular circumstances the conduct was justified as being in the public interest.
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I say at the outset that I accept that these amendments are proposed late in the day in the Bill’s passage, and that there has not been sufficient time for them to be fully ventilated and considered. For that reason I will not be pressing the amendments to a vote tonight. However, I have tabled them in the hope that the
Government will give them further consideration. These are, I suggest, sensible public interest amendments and they are directed to protecting the public interest in tightly circumscribed conditions.
Amendment 106B deals with the offence under the Bribery Act. It is an exactly similar offence to an offence under Section 1 of the Bribery Act, which quite properly makes it an offence to offer a promise of,
“financial or other advantage … to induce a person to perform”,
a function improperly or where acceptance of such an advantage would itself be improper. I accept that these are complex areas, but in tabling these amendments I do not believe that it is right to criminalise without exception responsible journalism on these issues, which the other defences available to this offence do not cover. I suggest that the offence as it stands strikes the wrong balance between the public interest in responsible journalism and the public interest in the concern to stamp out corruption.
Most commonly, offences under the Bribery Act that might be amenable to this defence would concern payment by journalists for stories when it is in the public interest to publish such stories. There is some evidence that newspapers feel that they have to turn away whistleblowers who want or seek compensation for the risks they take in becoming whistleblowers by exposing what may be going on in the organisations for which they work, and which would otherwise be caught by the Bribery Act. There is a risk that both the provisions that I mention in the Computer Misuse Act and the Bribery Act could act—and do act sometimes—as a gag on journalism. These defences would respond to that, but I emphasise that these defences would be difficult to prove and only seriously undertaken.
Amendment 106C would establish an extra defence to offences under Section 55 of the Data Protection Act. That section creates offences of unlawfully obtaining personal data held by a data controller and procuring,
“disclosure to another person of the information contained in personal data”.
As I have mentioned, there is already in Section 55(2) of the Act a precisely similar defence to those proposed in my earlier amendments to introduce defences under the two other Acts—the Computer Misuse Act and the Bribery Act.
Amendment 106C would introduce a further defence of public interest journalism or publication for artistic or literary purposes. The special purposes mentioned in the amendment are defined by Section 3 of the Date Protection Act as,
“the purposes of journalism … artistic purposes, and … literary purposes”.
The defence would protect a publisher of information who acted for the special purposes—that is those purposes—or,
“with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”.
As with Amendment 106D, there is a history to this amendment. The new defence proposed in Amendment 106C is a defence legislated for in exactly this form by Section 78 of the Criminal Justice and Immigration Act 2008. Our concern is that the amendment is not
yet in force. This is a free speech amendment once again; there is again a balance to be struck between the interests of free speech and the requirements of journalism, art and literature on the one hand against the demands of preserving the confidentiality of personal data. In 2008, Parliament legislated for this defence, which has not been implemented, and it should be implemented now.
Amendment 106D would introduce the possibility of custodial sentences for offences under Section 55 of the Data Protection Act of unlawfully obtaining or disclosing personal data. That is the same offence with which the previous amendment was concerned. Under Section 60 of that Act at present, only fines are available and, to put it bluntly, the threat of fines is frequently insufficient as a punishment. There is a risk that payment of fines may be regarded and treated as no more than a necessary expense by unscrupulous publishers who act with intent to circumvent the Data Protection Act.
Amendment 106D was also legislated for in the Criminal Justice and Immigration Act 2008, where it forms Section 77. That section, implemented by the previous Labour Government, provided for custodial sentences, as does this, of 12 months on summary conviction and two years on indictment, and could be introduced by the Secretary of State by order only after consultation with the Information Commissioner, media organisations and such other persons as the Secretary of State considered appropriate. The Labour Government consulted twice on this issue and on whether to introduce the public interest defence that would be provided for in Amendment 106C.
In 2011, the Government announced that they were keeping both issues under review. On 22 September 2013, the Secretary of State wrote to the chairman of the Home Affairs Committee:
“We therefore intend to conduct a public consultation on the full range of data protection proposals, including on whether to introducing custodial sentences under section 77 of the CJIA. Consultation on the latter is a statutory requirement. This will enable us to seek views on their impact and how they might be approached. We think it is important that the public get the opportunity to consider the question of whether to introduce custodial penalties for breaches of section 55 in the context of Lord Justice Leveson’s wider proposals relating to the data protection framework”.
Your Lordships may think that that was a clear pledge by the Secretary of State to introduce consultation with a view to implementation in the context of Lord Justice Leveson’s proposals. The proposals were contained in recommendation 54, where Lord Justice Leveson said:
“The necessary steps should be taken to bring into force the amendments made to section 55 of the Data Protection Act 1998 by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism)”.
Those are precisely the amendments that we now contend for.
Amendment 181A is an important amendment to the commencement section. It would provide that the two sections would become law on the day that this Bill is enacted. It would thus ensure that there should be no further prevarication, the consultations that
there have been being sufficient. There is no excuse for further delay. These amendments seek to ensure action now. I beg to move.