Data Protection Bill [HL]

Debate between Lord Brown of Eaton-under-Heywood and Lord Lester of Herne Hill

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

[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.

Investigatory Powers Bill

Debate between Lord Brown of Eaton-under-Heywood and Lord Lester of Herne Hill

Monday 12th September 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, without boring the Committee with too much about human rights, I will explain my problem with the amendment, or anything like it. The noble Earl has rightly said on the face of the Bill that he considers it to be compatible with the European Convention on Human Rights, under Section 19 of the Human Rights Act. The problem is that the Human Rights Act says—I am glad to say—that this statute, like any other, must be read and given effect, where possible, in accordance with the convention rights. Article 8 of the convention refers to national security as one of the matters to be weighed in the balance where privacy is being threatened. It is therefore very hard for Parliament to seek to give a definition that puts a gloss upon Article 8 unless it is fairly sure that it would not be struck down as being incompatible with the convention itself. As my noble friend has said, this amendment is too narrow and it would actually be better to leave the matter to be decided under the Human Rights Act—provided that the Government retreat from their foolish position of tearing up that Act and putting something else in its place. Provided they abandon that march of folly, we should leave well alone.

[Lord Brown of Eaton-under-Heywood]

My Lords, I very strongly support what has just been said by the noble Lord, Lord Lester. I respectfully suggest that this is not, as the noble Baroness suggested when she moved the amendment, a government oversight. This is a well-recognised term which, as the noble Lord has pointed out, is enshrined in the European convention. It was the term used, undefined and unrestricted by definition, in RIPA, which this law will effectively replace. It has a necessarily somewhat flexible meaning to cater for a great many situations. The proposal embodied within the amendment as to how it should be defined took me straight back to the celebrated case of A v the Secretary of State 10 years ago. That spelled the end of the Belmarsh internment system, which was then replaced by the control order regime. There were nine judges sitting in the appeal committee of this House. The noble and learned Lord, Lord Hoffmann, was the only one who questioned whether it was permissible, under the convention, to do what was done there. The internment was actually struck down by the great majority of the court—eight members—on grounds of irrationality and discrimination. However, the noble and learned Lord pointed out that what was under consideration was a really draconian power to detain people indefinitely without charge or trial. The great question, as he saw it, was whether, within Article 15 of the European convention, there existed a war or other public emergency threatening the life of the nation. He asked what was meant by threatening the life of the nation, and he suggested it was things like the Armada or, indeed, Nazi Germany in the Second World War; but the existence even of a threat of serious terrorist outrages did not, in his view, constitute such a threat.

The very narrow and restricted definition proposed in this amendment is reminiscent of that. As I say, only the noble and learned Lord, Lord Hoffmann, went down that road to say that the life of the nation was not in fact put at peril even by terrorism. However, that was a draconian power. Of course, I do not seek to devalue the right to privacy, but a right to privacy is not, I respectfully suggest, equivalent to a right not to be, as there, detained indefinitely without charge. An altogether wider view of national security is, I suggest, not merely permissible but imperative within this area of legislation. I oppose this amendment.

Immigration Bill

Debate between Lord Brown of Eaton-under-Heywood and Lord Lester of Herne Hill

Monday 12th May 2014 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I am a member of the Joint Committee on Human Rights and I should declare an interest because, like the noble Lord, Lord Pannick, I am a member of Blackstone Chambers, the same chambers as Professor Goodwin-Gill. As the House will understand, barristers are not like solicitors: we are not in a firm and are perfectly capable of taking completely different views from some of our colleagues. I have of course read Guy Goodwin-Gill’s opinion and his supplementary opinions but I do not think that they focus on the particular issues, practical and otherwise, with which we are concerned in this debate.

As the noble Lord, Lord Pannick, indicated, the Joint Committee on Human Rights welcomes the concession that has been made. I was one of the rebels—in the words of the noble Lord, Lord Pannick—and am personally satisfied, for the reasons that the noble Lord gave, that the concessions obtained in the other House ought to be acceptable and are in accordance both with international law and with the principles of our own constitutional system of government and law. However, I also agree with the noble Lord, Lord Pannick, that the questions that he has raised are the right ones, and my support for the Government’s position is dependent on satisfactory assurances being given. It is very important that they are given, because one of the advantages of the Pepper v Hart doctrine is that what is said by the Minister in reply will give guidance about how this important provision is to be interpreted.

I very much welcome the shift that has occurred and the fact that it has occurred because of pressure from across the whole House and not simply from one party. I do not agree with the position now being taken by Her Majesty’s Opposition—unless it is a probing position. If they were to press their difference of opinion to a vote, I would support the Government.

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

My Lords, on Report, I added my name to those of the noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, in proposing what is now Amendment 18. I did so because, consistently with what I had previously said in Committee, I was so strongly opposed to the United Kingdom lending itself to what has been called the evil of statelessness, with all the reputational damage which that would have occasioned to this country. It seemed to me at that stage imperative that there should be pre-legislative scrutiny, as Amendment 18 essentially proposes, before any such extreme position should be adopted.

On Report, I recognised that amending the legislation, short of leaving people stateless, could indeed well be justified. I will quote just a sentence from what I said at that point:

“By all means, let the Government reverse the decision last year of the Supreme Court in Al-Jedda and legislate, as Lord Wilson in his judgment there implicitly suggested, to allow us to deprive someone of their British citizenship, provided that they can then immediately acquire the nationality of another state, as, indeed, it was assumed in the course of the litigation in that case that Mr Al-Jedda himself could have done”.—[Official Report, 7/4/14; col. 1174.]

Noble Lords should remember that this power is to be available only in the case of someone who has gained his British citizenship by naturalisation and who then betrays the trust that we as a nation put in him and acts in a way which is seriously prejudicial to the vital interests of this country. Provided that that person can then become a national of another country so as not to be rendered stateless, as was assumed in Mr Al-Jedda’s case, I see no real objection to our depriving him of the protection that we ourselves earlier conferred upon him. The Government’s very welcome amendments seem to limit the power precisely to these circumstances. My understanding of the new paragraph that it is proposed be inserted into the nationality Act under Amendment 18A is that it is precisely the same as that of the noble Lord, Lord Pannick. I will not go into all the points again, but it is plain that it refers to a present entitlement and not simply to a right to apply. The language is “to become” a national of another country, not “to seek to become”. Provided that that is so and provided that the Minister gives—as I fully expect him to—all the assurances that the noble Lord, Lord Pannick, has invited him to give, the Government have properly given way on this critical issue and, if the matter is put to the vote, I shall support the Government.

Defamation Bill

Debate between Lord Brown of Eaton-under-Heywood and Lord Lester of Herne Hill

Thursday 17th January 2013 Grand Committee

[Lord Brown of Eaton-under-Heywood]

I was not proposing to speak to this amendment at all but it seems to me that there is an enormous distinction to be made between person A and person B as to which publication one is being denied by the Limitation Act the opportunity of proceeding in respect of. It is, with respect, not only whether the second publisher may be financially worth suing as opposed to the first publisher which must be catered to in this provision, but surely also the standing and reputation of the publisher. One can very well imagine a situation in which one simply would not be bothered to be defamed by person A because that person’s standing and reputation was itself so low and yet a republication by somebody of real repute and standing would trigger one’s intent to sue. So if this Amendment 44A is to be accepted, that sort of thing should be catered to, whether under the provisions of subsection 4, with a specific provision about material difference lying on occasion in the character and position, financially and otherwise, of the publisher, or in some other way, I leave to others to consider.

As to the other amendments, I agree with the view that Amendments 45, 46 and 47 are a simpler and more elegant fashion of expressing those provisions. As to Amendment 47B and the proposed insertion of new Section 5A, I am neutral as to how desirable it is to spell out these considerations which shall not be regarded as materially different. I would respectfully suggest that the expression should be not,

“shall not be deemed to be”—

it is not a question of deeming—but

“shall not be regarded as”,

but that is a very minor point indeed.

[Lord Lester of Herne Hill]

On my noble friend Lord Phillips’s Amendments 45, 46 and 47, I hardly ever argue with parliamentary counsel as being defective in the way that they approach their work. With respect to my noble friend and to the noble and learned Lord, Lord Brown, I do not think that it is an improvement to save two words by twice repeating,

“or a section of the public”,

when it is clear beyond argument in Clause 8(2) that protection to the public includes publication to a section of the public. I therefore oppose what Lord Wilberforce once described as “the austerity of tabulated legalism”.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, there can be few occasions, particularly at five past five on a Thursday afternoon, when one feels entitled to tell, so to speak, a story from one’s own experience. However, I believe this to be just such an occasion.

Over a quarter of a century ago, I tried, with a jury, the case of the late Robert Maxwell suing Private Eye. It was a defamation case. The burden of the central complaint that Maxwell was making was that Private Eye had published a piece which insinuated that he had tried, by means of free holidays and the like, to bribe the then leader of the Labour Party—Neil Kinnock—to recommend him for a peerage: plus ça change. The case was opened—as all these cases invariably are—at great length and the witnesses started to go into the witness box. I came back from lunch on the fourth day to find a note from the jury which read, “Please, sir, can you tell us what a peerage is?”. On the fourth day of a case all about peerages they did not know what that meant, which did not increase my faith in, and admiration for, juries.

A later case over which I presided in the Court of Appeal was that of Grobbelaar, who secured a very large award from the jury—I cannot remember the exact amount but I think that it was about £100,000—on the basis that he had been libelled by a newspaper which had accused him of match fixing. Noble Lords will remember that he was a Zimbabwean who I think played for Liverpool at the time. We eventually held—we were upheld in this by the Appellate Committee of the House of Lords—that that was a perverse award. Again, that was not greatly to the credit of juries. Therefore, I confess that I am very strongly opposed to juries in defamation cases, not least when important people—celebrities—are involved. Juries tend to be mesmerised by celebrity. Indeed, that is true of defamation cases and there are many other instances—it is perhaps invidious to mention them—where that can be seen to be so in the libel context and perhaps more widely.

Under Clause 11 as drafted, defamation cases will be tried without a jury unless a court orders otherwise. The matter is left to the general discretion of the court. Obviously, only very exceptionally would it be thought a good idea to have a jury trial with all the disadvantages of such a trial in terms of length, expense, unreasoned judgment and all the rest of it. If I may respectfully say so, the problem as I see it in this proposed amendment is that it is, first, too prescriptive and, secondly, may well encourage the use of jury trial. In the original report of the Joint Committee, it was recognised in paragraph 25 that it would be undesirable to restrict this discretion—that is, the court’s general discretion—although it is fair to say that it went on to state that it should be possible to outline general principles. The general principle later referred to was that the circumstances in which the discretion should be exercised,

“should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake”.

The first problem with the proposed amendment is that it limits the discretion of the court because it states that:

“A court may only order a trial with jury”,

in this class of case, and there may be others. For that reason, it also raises in acute form the definition problem of deciding who is properly to be regarded as a senior figure in public life and when that person’s credibility is at stake. Perhaps more fundamentally, the amendment raises the very concerns that the Government in their response to the Joint Committee report refer to in paragraph 62. It was there said that:

“Concerns were expressed that including guidelines in the Bill could be too prescriptive and could generate disputes”.

I have already alluded to that as one of the problems. It goes on to say that:

“There would also be a risk that detailed provisions setting out when jury trial may be appropriate could inadvertently have the effect of leading to more cases being deemed suitable for a jury than at present”,

which would work against the committee’s view, one that the Government share, that jury trials should be exceptional. If this clause is amended as proposed, there is a risk that if somebody who claims to be a senior figure in public life whose credibility is at stake wants a jury or, indeed, the defendants to a claim by someone who is arguably within that description want a jury, then initially you have a dispute and a debate as to whether it is a case where it is permissible to have a jury and, if so, the suggestion would be that Parliament would have implicitly sanctioned the thought that that is indeed a case where it is appropriate, whereas I would suggest through my earlier illustrations that not even in that case would it generally be appropriate for a jury trial. I would respectfully oppose the amendment.

[Lord Lester of Herne Hill]

My Lords, I am so glad that the noble and learned Lord, Lord Brown, has just made that very important contribution. I agree with all of it and therefore I can be extremely brief. I could add recollections from my own casebook of cases where juries were wholly inappropriate. The particular one I have in mind is the Convery case in Northern Ireland, but I will not go into that now.

I want to make only a couple of points. The first is that in the 19th century, Albert Venn Dicey said in his Introduction to the Study of the Law of the Constitution that the best safeguard of free speech is the English jury, which is far better than all those charters of rights, whether continental or American. That was the view at the end of the Victorian era, and Fox’s Libel Act did of course place great emphasis on the role of the jury. It was that Act, as Sir Brian Neill reminded me, that led judges to be very concerned about not giving rulings on meanings too early because they did not want to interfere with the jury. I was surprised to discover, when acting for newspapers, that they no longer believed that trial by jury was a good safeguard of free speech. They preferred the reasoned judgment of a single judge which could be appealed, because it was a reasoned judgment, to the unreasoned and incapable of being appealed judgment of a jury. In my Private Member’s Bill, with Sir Brian Neill as my guide, I took the step of saying that, not always but normally, trials should be by judge alone and not by jury.

Much to my surprise, the free speech NGOs and others, with the one exception being Liberty for reasons I understand, all supported it, as did the entire press. I note, of course, what Alan Rusbridger has said, but I do not agree at all with making a special case for celebrity public figures. As the Minister will remember, recently in another context the House agreed to abolish the old common law offence of scandalising the judiciary. The Law Commission agreed with that, as did the senior judges. It could not be seen why senior judges should be made a special case to be protected from gross offence, rudeness and attack when nobody else could be. Were we to approve this amendment, we would be saying that there was a special privileged class, called the great celebrity or public figure, who were to be given special point under the legal system. That would create completely the wrong impression.

One of the most important reforms is abolishing a presumption of trial by jury. The reason is that that then enables the Government, in their procedural changes, with the judges’ co-operation, to make all kinds of changes that would not be possible if the normal mode was trial by jury. This is an extremely significant clause and I very much hope that the Government hew to it without amendment.