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.