Data Protection Bill [HL]

Lord Lester of Herne Hill Excerpts

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

[Earl Attlee]

My noble friend makes an excellent point, which I shall come to in a moment.

The third claim is that the Leveson system is unnecessary, as the new IPSO is much better than the previous Press Complaints Commission. I dealt with this in Committee by identifying some, but not all, of IPSO’s deficiencies. These are, first, that IPSO is not obliged to consider discrimination complaints from a group—for instance, a religious or ethnic group. It has also not yet dealt with a matter so serious as to merit levying even a £10 fine. Finally, in three years of operation, IPSO has not arbitrated a single case. In Committee, I was not challenged on any of those assertions, and I am not surprised, because they were checked very carefully.

I hope that noble Lords will support me in the Division Lobby in order that the House of Commons is given the opportunity to provide the vital costs-shifting protection that the public need and deserve in respect of data protection claims. Of course, this would also send a clear message to the Government that they should bring into force the rest of Section 40 immediately, as Parliament agreed to and voted for in 2013.

[Lord Lester of Herne Hill (LD)]

Is the noble Earl aware that there are some, including myself, who believe that Section 40 is unlawful and contrary to the European Convention on Human Rights, since it imposes a burden on a newspaper to pay the costs of proceedings even if it is successful, and is discriminatory and arbitrary?

[Earl Attlee]

There is a simple answer to that—the noble Lord should test that in the courts and test it in Europe.

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[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too oppose the amendments in this group. I want to focus particularly on Amendment 147, which would, in effect, introduce a Section 40-type penal costs provision into the present legislation. But I seek first to dispel a basic misapprehension on this issue.

Section 40 is said simply to be implementing Leveson. I suggest that it goes very substantially further than that. The relevant Leveson recommendation is recommendation 26, under the heading “Encouraging membership”. The amendment deals, as does Section 40, with both the carrot and the stick, in both instances in more extreme terms than the recommendation. I shall forgo any question of the carrot—it is not necessary to discuss that; it is wrong, but it is not necessary to discuss it—but turn to the second part, the penal cost provision of recommendation 26. It reads as follows:

“On the issue of costs, it should equally be open to a claimant to rely on failure by a newspaper to subscribe to the regulator thereby depriving him or her of access to a fair, fast and inexpensive arbitration service. Where that is the case, in the exercise of its discretion, the court could take the view that, even where the defendant is successful, absent unreasonable or vexatious conduct on the part of the claimant, it would be inappropriate for the claimant to be expected to pay the costs incurred in defending the action”.


Given that recommendation, the suggestion is that the court could take the view that even where the newspaper wins, it would be inappropriate for the claimant to be ordered to pay the newspaper’s costs. Critically, there is nothing there about the newspaper, even when it wins, being made to pay the unsuccessful claimant’s costs.

In the provision as it is sought to be introduced, whether you look at it as Section 40 or as Amendment 147 —which is perhaps more convenient because it is in identical terms to Section 40 except in two wholly immaterial respects—subsection (3) goes way beyond that recommendation. In that instance, the court must—note the word “must” towards the end of the paragraph—award costs against the newspaper to the unsuccessful claimant unless, under this highly abstract concept in paragraph (b),

“it is just and equitable in all the circumstances of the case to make a different award or make no award of costs”.

The plain intent of that provision is to drive newspapers which will not sign up to a recognised regulator to do so by threatening that they will pay the costs, come what may, except only in a vexatious case.

Anyone who is besotted with that mismatch should look also at two other passages in the report. I shall not weary your Lordships with them now but just note that they are at paragraph 5.6 of the report, at page 1770, and paragraph 6.8, at page 1514.

I shall make one final observation on this issue. Not only did Leveson’s recommendations plainly not go as far as Section 40—now the proposed Amendment 147 —but they did not win the total support of all his six assessors. Notably, the noble Baroness, Lady Chakrabarti, now the shadow Attorney-General, who was the director of Liberty at the time and one of the assessors, made plain her deep reservations about Leveson’s recommended regulatory scheme and, in particular, once it came to be established under the rubric of the royal charter.

My second and briefer point is that IPSO—the noble Lord, Lord Black, made this plain a moment ago—now has in place an arbitration scheme that is fully Leveson-compliant. As we have seen, the essential justification suggested for not awarding successful newspapers their costs in these cases but rather requiring them to pay the losing claimants is that, unlike a newspaper signing up to Impress, the claimant has not got the opportunity of a low-cost arbitration. That is now categorically no longer the case. IPSO offers just such an arbitration scheme—including, incidentally, explicitly for data protection claims. This scheme was finally introduced in November after being trialled for a year. However, it was trialled on less beneficial terms than it is now introduced on. There used to be a scheme which cost £300. Now, as the noble Lord, Lord Black, made plain, you pay £50 down and the most you can be required to pay beyond that is another £50—£100 in all. This scheme is overseen by specialist barristers and managed by CEDR, which is Europe’s largest independent provider of alternative dispute resolution. There is less cause now for even the recommended possible sanction by Leveson than there used to be.

My next point is perhaps of reduced significance because of the availability of the arbitration scheme now introduced, but the Bill makes specific provision to assist a claimant in a data protection proceeding against newspapers to apply to the Information Commissioner to fund the claim. Clause 165(6)(a) makes plain that the commissioner’s assistance may include,

“paying costs in connection with the proceedings”.

Not only is this manifestly not the right Bill to introduce by a side-wind legislation that was originally designed for other cases under Section 40; it is the least possibly appropriate Bill in which to do so.

I am tempted to raise a number of other points but I shall not succumb to the temptation because many have been made by other noble Lords. However, with the best will in the world, this is an ill-judged group of amendments and it will do this House no credit to pass them.

[Lord Lester of Herne Hill]

I wonder whether I will win the sympathy of the House by saying that I am not going to make a speech. All I want to say is that I have given notice to my Chief Whip, as a cuckoo in the nest, that I cannot support these amendments and that if there is a Division I shall vote against them.

The only other point I wish to make was made by the noble Lord, Lord Black, in passing, at the conclusion of his speech, when he referred to the wider world. The rest of the free world that believes in free speech looks with amazement at these debates and thinks how on earth can we be wasting time debating this kind of thing when the press has done what it has done. With Alan Moses, a really independent Court of Appeal judge as the chair and Anne Lapping, a very independent non-lawyer, as the deputy chair of IPSO, having set up a scheme, why on earth are we wasting time in going over past history instead of letting them get on with it.

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[Lord Falconer of Thoroton]

I disagree with what the noble Viscount, Lord Hailsham, says—namely, that the facts are already known—because the apologists are saying that everything is okay now; I do not include him as an apologist because he has a slightly different position. I point to the case of the Bowles family, which indicates that things were not okay when the first Leveson inquiry was going on. The basis on which it has been asserted by the noble Lords, Lord Pannick and Lord Black, along with others, that we should not go ahead is because everything is okay. Well, it is not.

[Lord Lester of Herne Hill]

I just to make something quite clear. I hope that the noble and learned Lord is not suggesting that I am saying that everything is fine.

[Lord Falconer of Thoroton]

This is the crux of the position. Now that it seems to be accepted that things are not okay, if that is the case, what is required is an inquiry. As I understand what is being asserted, a change is proposed in the form of Section 40 and there are those who say that we should not make a change. I think that it is important not to be taken in by the siren song that everything is okay.

It is important that there should be a second inquiry. We promised it and we should not break that promise. I also think it would be wrong to suggest that Sir Brian Leveson is against a second inquiry. I do not know what his position is, but we should not assume that he is either in favour or against it; his views need to be canvassed. I strongly support the amendment tabled by the noble Baroness, Lady Hollins.

Data Protection Bill [HL]

Lord Lester of Herne Hill Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer at ITN Productions. I thank the Minister for responding so positively to the concerns expressed by myself and other noble Lords from across the House in Committee who were worried about the effect that Clause 164(3)(c) would have on free speech. I am therefore grateful to him for bringing forward government Amendment 162, and I also support government Amendment 50.

I have concerns about my noble friend’s Amendment 50A. It replaces the phrase,

“with a view to the publication”,

with the term “necessary”—which, I fear, would cause huge problems for journalists, authors and academics. The present wording in the Bill allows them to take the view that material can, and indeed should, be appropriately retained, even if it is not for publication. This could be necessary to respond to any possible legal or editorial complaints which might arise from the publication of a programme or article. Surely noble Lords would want these complaints or legal actions to be responded to as fully and accurately as possible. The ability to defend a publication surely supports the act of publication itself. This amendment would not allow data to be retained for those purposes.

I am also concerned that data collected which might not be used in the original publication could be crucial in supporting subsequent stories on the subject. In Committee I referred to the investigation by the Sunday Times of drugs cheating by the cyclist Lance Armstrong. Initially, Mr Armstrong sued the paper for defamation. But, despite settling, the newspaper persevered in its investigations, which ultimately led to Mr Armstrong confessing that he was indeed a drugs cheat.

Keeping hold of data in many investigations can be crucial, even if it is not necessarily obvious at the time whether it should be so. The Hillsborough inquiry and subsequent stories over 20 years relied heavily on unbroadcast BBC footage from the Hillsborough football stadium at the time of the tragedy. It provided vital information for subsequent inquiries and inquests. Surely noble Lords would not want that sort of material, which might seem unimportant at the time, to be deleted. I therefore ask the Minister to stick to his guns and reject Amendment 50A.

[Lord Lester of Herne Hill (LD)]

My Lords, we had rather strong debates in Committee and I am not going to repeat any part of those. I have thought about how I could best help the House at this stage, and I think it is by stating what I believe the law to be and why Amendment 50A, if carried, would put the Bill in breach of the Human Rights Act and the European Convention on Human Rights.

When the Bill was first introduced, the Minister certified, as is required under the Human Rights Act, that in his view it was compatible with the convention rights; those being the right to free speech, the right to personal privacy and the right to equal treatment without discrimination. The amendments that the noble and learned Lord, Lord Keen, has introduced in this group would pursue the convention rights and, if carried, as I hope they will be, make sure that the Bill continues to be compatible with the convention rights.

In the light of the speech by the noble and learned Lord, Lord Brown, it would be quite unnecessary and wrong for me to go through the relevant law in any detail. But perhaps I can help the House a bit by giving a very brief summary of why I consider the government amendment compatible, and the amendment put forward by the noble Baroness, Lady Hollins, or those supporting Hacked Off and all the rest, incompatible.

The position is this. Article 10 of the convention protects the right to free speech and freedom of the press, subject to necessary and appropriate exceptions. One exception is, of course, personal privacy, which is guaranteed by Article 8 of the convention. The test the convention uses, as interpreted by the European Court of Human Rights, is a pressing social need test. The starting point is free expression and any restriction or limitation on that right must be in accordance with legal certainty and must be proportionate. The Human Rights Act requires that all legislation, old and new, including this Bill, must be compatible with the convention rights. It also requires courts to read and give effect to the convention compatibly with those rights.

Together with the noble Lord, Lord Pannick, I edited a textbook, the third edition of which we published in 2009. It has a whole chapter on free speech and another on privacy. What I am trying to summarise now, we spelled out in that large textbook some years ago. I am trying to help the House by giving a legal opinion on what I consider the law to be. I very much hope that the noble and learned Lord, Lord Keen, will correct me if I have got it wrong in any respect, because the House needs to know that if it were to support Amendment 50A, it would, in my view and that of the noble and learned Lord, Lord Brown, put the Bill in breach of the convention and the Human Rights Act. The Minister could then no longer certify that it was compatible with the convention rights.

[Lord Pannick]

My Lords, I declare an interest as the co-author with the noble Lord, Lord Lester, of Human Rights Law and Practice, available in all good bookshops. I declare an interest also as a practising barrister. I have represented newspaper groups many times in relation to privacy and freedom of speech issues, but I have also represented individuals complaining about breaches of their privacy—individuals as diverse as Max Mosley and Her Majesty the Queen. Noble Lords may remember that the contents of Her Majesty the Queen’s breakfast tray were disclosed in the Daily Mirror by a footman who was, in truth, a foot-in-the-door man from that paper. I speak, therefore, from legal experience.

I agree entirely with what was said by the noble Lord, Lord Lester, my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Colville. We should be very slow indeed to limit the scope of the exemptions for journalists and in relation to academic, artistic and literary material. Without these exemptions, as defined in government Amendment 50, journalists cannot do their job effectively: you cannot investigate child sex abuse in Rotherham, corruption in Tower Hamlets or any of the other examples that have been given if those you are investigating are entitled to see the data you are processing that relates to them. Such data may not be “necessary” but it may be material that needs to be retained and published. It is as serious as that.

These are not theoretical concerns. Earlier this year, Mr Justice Popplewell dismissed a claim by James Stunt, a businessman who was married to one of Bernie Ecclestone’s daughters. Mr Stunt complained about a number of articles in the Daily Mail and the Mail on Sunday, claiming rights under the Data Protection Act 1998. The judge dismissed the claim, stating in paragraph 56 of the judgment that journalism would be discouraged or impeded,

“if the subject had access to the detailed extent or direction of the investigation, of the information gathered or of the intended story”.

That is right. In my view, government Amendment 50 adopts the right approach with its focus on the reasonable belief—not any belief, but the reasonable belief—of the data controller that publication is in the public interest.

It gives me no pleasure to say that many of the amendments in this and the next group are not concerned with promoting the ability of journalists and others to carry out their essential functions under Article 10 in relation to freedom of speech and freedom of information. They pursue a different agenda: either to encourage newspaper groups to join Impress as their regulator or to punish the press for the wrongdoing of some of its members. I say to noble Lords that that should not be the concern of this Bill, which should focus on protecting freedom of information in relation to data.

I cannot agree with manuscript Amendment 50A. It would provide a field day for those seeking to impede academic work, artistic and literary expression, and journalism that they do not welcome. It would inevitably create a chilling effect on work in academia, the arts, literature and journalism. I simply do not understand how a necessity test would work. When the journalist, the academic or the artistic or literary individual is conducting the processing, they cannot know whether it is necessary for future publication—they may reasonably believe that it will be or that it may be, and that is enough. Manuscript Amendment 50A, if accepted, would seriously damage freedom of expression in this country. As the noble Lord, Lord Lester, said, it would be a blatant breach of Article 10 of the European Convention on Human Rights.

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In short, if the Bill is to include a list of codes, that list should include the standards code of any approved regulator. Any such code is guaranteed to balance freedom of expression and privacy, and to be independently and effectively upheld. It would, as I say, be perverse if the Bill did not include such a code—

[Lord Lester of Herne Hill]

I am grateful to the noble Lord, Lord Low, for giving way. I rise to answer the question that he put to the noble Lord, Lord Pannick, on what he thought of the amendment. Speaking for myself, I cannot think of any objection to including the Impress code as well as the IPSO code. In my speech, I did not say anything about the IPSO code because I thought it was inappropriate in this debate. I have a detailed brief about that from Sir Alan Moses but I will not talk about it any more because this is not a competition between IPSO and Impress.

Data Protection Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 6th November 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, as my noble friend Lord Clement-Jones indicated, I shall speak to Amendments 41 and 44, which were eloquently introduced by the noble Lord, Lord Griffiths. I had no idea that it was a maiden speech from the Front Bench, and it is to the discredit of the Labour Party that it has taken him so long to climb to the top of the greasy pole. Having got there, I hope that he enjoys the view.

As the noble Lord indicated, these amendments are inspired mainly by Thomson Reuters and others in the City. I attended a seminar in the City some weeks ago in which the corporation, the City of London Police and some leading companies talked about the challenges that data was bringing them. At the core of this is a concern that the Bill is loosely and poorly worded in preventing private companies doing work with data which will help them to keep best practice in line with the objectives for corporate governance and efforts to fight crime, terrorism, slavery, bribery and corruption.

I hope the Minister can give some comfort that the Bill will give cover to companies, financial institutions and others to carry out this kind of data activity and allow screening by private companies for the purposes of checking against non-UK laws on terrorist financing or money laundering. It should be amended to allow compliance with widely recognised guidelines such as those promulgated by the Financial Action Task Force. In the light of the Minister’s response and in consultation with those who have asked us to raise this matter, we would see whether we wanted to take it further. At the source of these amendments is a concern on the part of companies which I think genuinely want to help.

[Lord Lester of Herne Hill (LD)]

My Lords, I want to raise an issue which I would be grateful if it were thought about, although I would not dream of asking the Minister to give an informed reply today. I am puzzled especially by Amendment 37, spoken to by the noble Lord, Lord Griffiths, because I spent a good deal of my time developing the Equality Act 2010 and we were very concerned when doing so about issues of personal privacy and enforceability.

Obviously, one size does not fit all when it comes to equal opportunity and treatment. It is fairly easy to operate a policy measuring ethnicity, for example, without any problem about privacy; it is pretty easy to do so in respect of gender, although gender does not at the moment figure in the list for some reason, but it becomes terribly difficult when one is dealing with sexuality, religion or philosophical belief, which are for some reason in the list at the moment. I would be grateful if the Minister could reflect with people from the Government Equalities Office on whether this is an example of overlegislation, which it would be much better to prune down.

I am all in favour of affirmative action to promote equality between the sexes or people of different ethnicity, but when it comes to religion, philosophical belief and the other matters that are either there at the moment or would be there under Amendment 37, I get very worried. For example, I once represented the Church of Scientology—successfully—in establishing that scientology is a religion. I would not like these provisions to be the source of conflict and division between one kind of religion and another, or one kind of no religion and humanists, and so on. I think it is an example of overlegislation and underlegislation, and needs to be sorted.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, I am grateful to all noble Lords who have participated. I am especially grateful for the clear way in which the noble Lord, Lord Griffiths, outlined the case for all his amendments. He could have chosen an easier Bill to start on, I must say, but he did it very well. I am grateful for the opportunity to set out the purpose of various conditions included in Schedule 1, this time specifically with reference to Part 2.

As we have already discussed, for “special categories of data” to be processed lawfully, controllers must demonstrate that their processing meets one of the processing conditions set out in article 9 of the GDPR. We have already touched on several of these. Here we turn to processing which is,

“necessary for reasons of substantial public interest”.

Clause 9 requires that controllers wishing to rely on this processing condition must meet one of the conditions set out in Part 2 of Schedule 1.

Paragraph 7 of Schedule 1 allows processing of certain specified special categories of personal data for the purpose of promoting equality of opportunity. Amendment 37 seeks to expand this condition to permit the processing of additional categories of personal data. This is unnecessary because the categories of data referred to in the amendment are either not considered by the GDPR framework to be special categories of data in the first place or covered by the categories already listed in paragraph 7 of Schedule 1; for example, “Personal data revealing age” need not be listed because it is not subject to additional protection to begin with.

The Government accept that the existing special categories of data are broad and in some circumstances will overlap with the categories of data suggested in the amendment; for example,

“Personal data revealing a disability”,

will fall within the special category of “Data concerning health”. But in these cases, paragraph 7 already permits the processing of such data for equality-monitoring purposes. I will read carefully the remarks of the noble Lord, Lord Lester. I suspect his point is to do with what is and what is not a special category of data, but I will read Hansard and write to him, and copy other noble Lords. I thank him for not requiring a considered answer tonight.

Amendments 38 and 39 address the condition in paragraph 8 which permits the processing of data where this is,

“necessary for the purposes of the prevention or detection of an unlawful act”.

Amendment 38 would make it clear that the condition was available only if the unlawful act in question was “serious”. I can understand the rationale behind the amendment but the Government consider that it might nevertheless be in the substantial public interest for an organisation to process data for the prevention or detection of an unlawful act that was not obviously “serious”. An offence such as driving without a licence or insurance may not be the most serious in terms of the maximum penalty available, but it could still be in the substantial public interest for it to be reported by the data controller. Paragraph 8 ensures that data controllers are empowered to make that call and be accountable for their decision.

Amendment 39 would make the condition available only,

“under circumstances in which it is reasonably clear that a data subject is unlikely to give consent”.

While similar provision is made in other conditions where required, the Government consider that it would not be appropriate in this case, given that the purpose is to process data in circumstances where seeking consent risks prejudicing the prevention or detection of an unlawful act.

Amendment 40 would remove the word “dishonesty” from paragraph 9(2)(a) so that an organisation could rely on this provision only if it were processing sensitive categories of personal data to protect the public from malpractice, other seriously improper conduct or the other listed behaviours. The Government consider that there might be situations where an organisation would also need to process data to protect the public from dishonesty that does not necessarily amount to malpractice or improper conduct. It is therefore right that the paragraph covers the full gamut. This processing condition is not new; a similarly worded provision already exists under the current Data Protection Act.

The noble Lord, Lord Griffiths, suggested that there was a need for a further definition of “dishonesty”. I am afraid we do not agree. The word has a plain English meaning, defined in the dictionary. Furthermore, to define it here would cause confusion as it is used throughout UK legislation.

Amendment 41 would extend the scope of the same processing condition so that it could also be used to protect bodies and associations, rather than just the general public, from dishonesty, malpractice and improper conduct. It is one thing to allow the processing of an individual’s personal data for the purposes of protecting the general public—that is, other individuals; there is a neat symmetry there—but quite another to suggest that it could be processed to protect organisations from reputational harm. On that basis, I cannot agree to include it.

Amendments 43 and 44 address the processing condition in paragraph 12 which allows organisations such as banks to make disclosures “in good faith” under the Terrorism Act 2000 and the Proceeds of Crime Act 2002 about third parties who are suspected of terrorist-financing offences or money laundering. This processing condition is intended to protect organisations that disclose data on the basis of a genuine suspicion, even if it turns out later not to have been well founded. Noble Lords will recall that this condition was debated and agreed to as part of the Criminal Finances Bill earlier this year. The condition is tied to the improvement of a specific statutory regime—known as the suspicious activity reports regime—and is designed to give legal clarity to encourage the sharing of information to prevent serious crime and terrorism. I know there are some in the financial sector who have suggested that these provisions should go further to permit screening by private companies for the purposes of checking against non-UK laws on terrorist financing and money laundering. As noble Lords may be aware, the relevant provisions in the Criminal Finances Act were commenced only at the end of last month. We are not convinced that there is a need to amend them at such an early stage.

Amendment 45 would amend the processing condition relating to,

“confidential counselling, advice or support”,

in paragraph 13. It would add “guidance” to the list of processing activities which are permitted under this provision. This paragraph is not new; the relevant wording is drawn directly from existing legislation. But I am happy to put on the record the Government’s view that guidance is already covered by this provision and thus there is no need to amend it.

Amendments 45A and 64 in the name of my noble friend Lady Neville-Jones seek to clarify the legal status of processing by patient support groups. The Government strongly support the varied and important work of patient support groups and I am grateful for my noble friend’s time in meeting me recently. It is important to reiterate that groups such as Unique will have access to a number of provisions already in the Bill, even in cases where consent cannot be obtained, or reobtained, from the data subject.

We discussed the provisions for scientific research last week. In addition, paragraph 13 of Schedule 1 makes provision for confidential counselling, advice and support. Taken together, the provisions I have mentioned—for consent, scientific research, and confidential counselling, advice and support—seem to cover a great deal of the vital work undertaken by patient support groups. But the Government retain an open mind on this and I will read my noble friend’s contribution in Hansard carefully.

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[Lord Lucas (Con)]

My Lords, I offer a slight contrast to that. I hope that this clause will help with a couple of sorts of problems that I have come across over the last 20 or 30 years. One concerns children at university who become suicidal and their parents are never told because everybody believes they have a duty of confidentiality and cannot communicate with the parents. A friend of mine got very close to going over the edge but fortunately one of his friends told his parents and then everything got sorted out. Suddenly regarding parents as aliens when someone is 18 and in severe psychological difficulty is an uncomfortable effect of the way that current regulations are perceived. I hope that this provision might loosen things up.

Another aspect is dealing with schoolchildren with eating disorders. Many aspects of eating disorders present as social interactions with other children. However, if there is an absolute prohibition on discussing someone’s condition with other children, even the children who share a bedroom with them in boarding school, that seems to me destructive of the interests of the child. Therefore, I would like to see—and I hoped that I was seeing—a slight broadening of the current regulations which might lead to arrangements which allowed the best interests of the patient to come into effect rather than a strict adherence to the dogma of, “We can’t tell anybody”.

[Lord Lester of Herne Hill]

My Lords, the Minister rightly signed on the face of the Bill his statement of its compatibility with the European Convention on Human Rights. I wonder whether the answer to the question of the noble Lord, Lord Kakkar, is not provided by the Human Rights Act itself, which says that all legislation, old and new, must be read—and given effect, if possible—compatibly with the convention rights. One of those convention rights is the right to privacy. The right to privacy embraces the equitable duty of confidentiality referred to by the noble Lord, Lord Kakkar. Therefore, the reassurance is given by the Human Rights Act rather than by anything else. The relevant provisions of this Bill would have to be read compatibly with that. However, I may be speaking out of turn.

[Lord Patel (CB)]

My Lords, if I have understood the noble Lord, Lord Lucas, wrongly, I am sure that he will correct me. However, the impression he gave was that the confidentiality between a doctor and a patient forbids the doctor to inform a family member if the patient is likely to suffer harm, even self-inflicted harm. That is not the case. The doctor is bound to respect confidentiality, but if that is likely to result in not informing the family of the harm that may be caused to a patient, or distress to the family, it is not true that confidentiality will still hold.

Data Protection Bill [HL]

Lord Lester of Herne Hill Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 30th October 2017 Lords Chamber

The noble Lord, Lord Stevenson, is rightly respected in your Lordships’ House. I suspect he has his riding instructions. This amendment is at best a bad idea; at worst, it is a piece of unworthy political manoeuvring. I suggest your Lordships have no truck with it, and I hope the Committee will vote against it.

[Lord Lester of Herne Hill (LD)]

My Lords, one of my many character defects is party loyalty. That has led me in the past even to vote against my own amendment, which I will never do again. Today, I have the misfortune to disagree with my party. I will explain briefly why I cannot possibly support the original amendment, which is constitutionally illiterate, or the attempt to rescue it in the manuscript amendment.

The Minister has rightly put on the front page of the Bill his opinion that the Bill is compatible with the convention rights. Those rights include the right to free speech in Article 10 and the right to respect for privacy in Article 8. The Minister could certify in that way because the Bill rightly carries forward from the previous Act journalists’ rights—for example, to protect their sources—which you can find buried away in Schedule 2(5). The Minister was able to do that because we have the Human Rights Act, which requires him to do so, and the European convention, which strikes a balance between free speech and privacy.

I do not understand what on earth the charter has to do with that. As the noble Lord, Lord Faulks, rightly explained in the better part of his speech—the first part—the charter is there as a shield against the abuse of power by EU institutions. Maybe he did not say that, but he would like to have done, I am sure. It is not intended to be a source of rights in parallel with the European convention. The amendment in its original form, and its amended form, seeks to give legal force to one bit of the charter. It squints. It looks at Article 8 of the charter on privacy and data protection, but it does not look at the other bit of the charter that deals with free speech. Then, because it is obvious that the original version was constitutionally illiterate, the manuscript amendment seeks to repair that by saying that it is subject to the exceptions and derogations in the Bill. That is not good enough because it then seeks to give fundamental importance to the right of data protection, as though it were in the Human Rights Act and the European convention, and then it completely fails to explain how on earth any court is meant to reconcile the amendment, if it became law, or the amended amendment, if that became law, with what we already have in the European convention.

I agree with every word of my noble friend Lord Pannick’s speech, and I agree with the first part of the speech by the noble Lord, Lord Faulks. I am afraid I cannot possibly support this amendment. I very much hope that it will be a probe and nothing more at this stage. We are at the beginning of Committee stage. We need to think about some of these issues carefully. If we were now to divide the House and vote to incorporate either version, we would be doing an injustice to the arguments and intelligence of the House.

When I first joined the House, I remember Lord Alexander of Weedon saying to me, “Anthony, you must remember that the House of Lords is not a Court of Appeal; it is essentially a jury”. He was right about that. Most noble Lords, including me, will have understood only half of what was said in some of the original speeches. What is surely clear is that we would be failing in our duty today if we were to amend the very beginning of the Bill at this stage, rather than consider it properly and come back to it at Report.

[Lord Arbuthnot of Edrom (Con)]

My Lords, it is a daunting thing to have to follow such an enjoyable speech. I simply say that, as I read Amendment 4 alongside Amendment 4A, it appears that the original opposition amendment had the unintended consequence that it destroyed all the exemptions already contained in the Bill. So Amendment 4A must be an improvement, but I am unclear precisely what is the purpose of Amendment 4A, because it expressly adds the principle of its being subject to all the general provisions of the Bill, so it adds nothing. I hope that we will not be pressed to a Division.