Data Protection Bill [HL]

Viscount Hailsham Excerpts

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

The second claim is that Impress is a creation of, and controlled by, Max Mosley. He indeed supplied the finance, which was necessary because Section 40 does not apply if there is not at least one recognised regulator in operation, for obvious reasons. However, the money went through a family trust and then, I think, another trust, so that he could not interfere with the independence of Impress. The News Media Association took this and other matters relating to the recognition system to the courts by judicial review and lost on all counts. We can be confident that the courts properly considered this matter, as counsel for the NMA was none other than the noble Lord, Lord Pannick.

[Viscount Hailsham (Con)]

Before my noble friend moves on, would he care to tell your Lordships why he is making a serious distinction in law between IPSO and Impress, because to the minds of many of us, IPSO is a perfectly well regulated and constituted regulator?

[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.

--- Later in debate ---

[Lord Paddick]

My Lords, I declare an interest. When I was a commander in the Metropolitan Police service, my personal details—this was in breach of data protection—were secured by Mulcaire, the private detective employed by a newspaper. This was discovered by the Metropolitan Police in 2002, but I was not told about it until 2010, when the Guardian alerted my lawyers to the fact that this had taken place. However, in the course of what subsequently transpired, I was shown an internal memorandum of the Metropolitan Police service, which showed that in 2002 it was aware that my phone and that of the then Deputy Prime Minister had been hacked into, and it never informed me of that. Therefore, noble Lords will understand that I should declare that personal interest.

However, I want to tell the following story to the House. I went with the family of Milly Dowler to see the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition to talk about the family’s experience. Noble Lords will recall that Milly Dowler went missing, was kidnapped and murdered, and that her family kept trying to call her mobile telephone. However, the phone relayed the message that the voicemail box for that number was full. Therefore, the family was losing hope that she might still be alive. Then they tried to phone again and found that some of the messages had been listened to. That gave them hope that she might still be alive. However, it transpired that there was room in that mailbox because journalists had hacked into her voicemail and had listened to some of the messages.

On the evening before the first of those meetings with the then Deputy Prime Minister, Nick Clegg, Milly Dowler’s father was telephoned by Surrey Police to tell him and the family that Surrey Police knew in 2002 that journalists had hacked into Milly Dowler’s voicemail, thereby allowing further messages to be left, as the journalists involved had called the police incident room to tell them that they had illegally hacked into the voicemail. However, it was not until nine years later and the imminent meeting with the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition, that the police felt obliged to tell the Dowler family that they knew from the outset that her phone had been hacked into. They did not offer any explanation for not having taken any action in relation to that illegal hacking into that phone.

These are the sorts of issues involved. This is not just about the conduct of the media. The aim of part 2 of Leveson is to examine the relationship between the police and the media and between politicians and the media, not simply the conduct of the media themselves. That is why we need part 2 of Leveson, and that is why I support Amendment 127A.

[Viscount Hailsham]

My Lords, I will speak briefly, both to the proposed new clause in the amendment moved by the noble Baroness and the proposed new clause moved by my noble friend.

I am against the suggestion that we should have an inquiry. I share the view of the noble Lord, Lord Pannick, that we know enough already. The facts have been canvassed time and time again, in inquiry, in criminal cases and in civil cases, and the time has now come for policy. We do not need new facts—we need a policy decision, and that is essentially a matter for government and Parliament. If we call for a further inquiry, the policy decisions will be postponed. A further point is that, if the proposed new clause is carried, the pressure will be on a judge-led inquiry. In the generality, I am against judge-led inquiries when they address matters of major general policy. Judges are good at identifying facts and deficiencies in existing legislation, but they are not well placed to address general policy issues.

[Lord Cunningham of Felling (Lab)]

The noble Viscount said a few moments ago that we do not need an inquiry because we have all the evidence and all the facts we need. What are the Government hesitating for, then? If we have all the facts and the evidence we need, the Government must have them too. However, they are not proceeding. That is the dilemma that the House faces, and that is why I strongly support the amendment in the name of the noble Baroness, Lady Hollins.

[Viscount Hailsham]

But the irony is that if we have a new inquiry, we will postpone the moment when the Government come forward with a policy. The only way you will get a policy decision is to press the Government to make their policy decision, not by holding a further inquiry.

The second point I want to deal with is my noble friend’s Amendment 147. I am not in support of it. First, I am against making a distinction in law between an approved and an unapproved regulator. I am bound to say that when I look at IPSO, I do not find it lacking; it seems to be a perfectly constituted and responsible regulator. I certainly do not want to make a distinction in law between Impress and IPSO. I very much hope that IPSO, which is backed by the industry, will get much greater support than it has hitherto received.

Secondly, on the issue of costs under my noble friend’s amendment, I believe that an award for costs should be within the discretion of the trial judge. The consequence of this proposed new clause is to make an award against a successful defendant when the institution and carriage of the litigation was conducted by the unsuccessful plaintiff or complainant. That seems to me to fly in the face of every notion of justice I have ever encountered. I suspect that the noble Lord, Lord Lester of Herne Hill, would agree with that proposition. Therefore, I very much hope that your Lordships will not agree to this proposed new clause. I accept that my noble friend has referred to the provisos, which enables the unapproved regulator to gain the costs. However, if my noble friend will forgive me, the second of the provisos is drawn in such general and loose terms as to be unintelligible, even to the cleverest of judges.

[Earl Attlee]

Of course, my amendments are entirely modelled on Section 40 of the Crime and Courts Act, which Parliament passed.

[Viscount Hailsham]

That may be so, but Parliament makes errors, and this House is in the business of looking again at what we have done in the past. We have to ask ourselves: what is just and equitable in the context of this case? I therefore very much hope that we will not approve a new inquiry and that the proposed new clause so eloquently moved by my mentor will fail.

[Lord Lipsey (Non-Afl)]

My Lords, I am one of those who backed the amendment of the noble Baroness, Lady Hollins, and I want to intervene briefly to make a point about the beast with which we are dealing. I refer noble Lords to the piece in today’s Times—a newspaper at which, incidentally, 25 years ago I was deputy to the editor. The headline reads:

“Peers hijack data bill to attack free press through back door”.


In today’s Times, evidently, the facts are free but comment is sacred.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

My Lords, I came intending to support the amendment of the noble Baroness, Lady Hollins, asking in effect for Leveson 2, and the amendment of the noble Earl, Lord Attlee, in effect introducing Section 40 for data protection. The more I have listened to the debate, the more I am absolutely convinced that both those amendments are correct.

I have found it appalling to listen to the smug reassurances of the apologists for the media that everything is now fine as far as data protection is concerned. The noble Baroness, Lady Hollins, drew our attention to the experience of the Bowles family when their son was killed in an accident. While Leveson 1 was going on—the latest moment at which it was alleged that the media had reformed—they were breaking the Bowles family’s data protection rights, to publish whatever they liked.

I do not know the extent to which the media were tricking or are continuing to trick people into giving out medical records, banking information and private photographs, or taking photographs from sources they should not, or going to the police and getting information from them. I am pretty sure that it is still going on, but I do not know the extent of it. The thing that will reveal the extent of it and the extent to which media owners are involved would be Leveson 2. That is what we as politicians promised at the time. The assertion, made in particular by the noble Lords, Lord Pannick and Lord Black, and the noble Viscount, Lord Hailsham, that we should just stop now because everything in the garden is rosy flies absolutely in the face of the evidence. We would look like politicians who are continuing to collude with the media.

[Viscount Hailsham]

The point is not that everything is right. We accept that it is not, but the facts are already known. What now needs to happen is that the policy needs to be formulated and brought to Parliament. An inquiry would postpone the day when that could happen.

[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.