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Lord Falconer of Thoroton: My Lords, at the heart of this debate is whether we have complied with our obligation under the terms of the directive. Article 9 of the data protection directive provides:


The amendment moved by the noble Baroness merely says, in effect, "chuck that into the Bill without amendment, and leave everybody else to sort it out". The amendment tabled by the noble Lord, Lord Lester of Herne Hill, says, in effect, that in determining whether the balance is in favour of freedom of expression, consider whether it is reasonably necessary in the public interest to publish. He suggests that the way we deal with the problem is to raise the concept of publication that is "necessary" in the public interest. Those are the two propositions that we have to address this evening.

I should say at the outset that the Government are unreservedly committed to full and proper implementation of Article 9, and I believe that we have achieved that. As has been pointed out this afternoon, this is a provision of pivotal importance. It is the point of confluence of two fundamental rights which naturally proceed in different directions--the right to privacy and the right to freedom of expression. As my noble friend Lord Williams of Mostyn said in Grand Committee, the essential thrust of the directive, and the Bill, is in the direction of the protection of personal information privacy. But the extent of that tendency is inherently limited by the requirements of freedom of expression. Article 9 expressly allows member states to acknowledge those limitations by providing exemptions in favour of the special purposes, but only, as has been clearly explained this afternoon, if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

Article 9 does not provide a simple answer to the problem of reconciliation. It does not attempt to. There is no reason to believe that there is a single right answer to the problem of reconciliation. It is much too complex and multi-faceted an issue for that. By that I mean, if we assume that every state is introducing protection legislation, it is inconceivable that the Community has it in mind that every state will pitch the reconciliation at the same place.

Member states are afforded, as one would expect, a margin of latitude by Article 9, as indeed they are under the convention itself, to come to their own judgment as to what is necessary to reconcile those two fundamental rights and to give proper expression to them in national legislation. This is plainly not a case where a copy-out

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solution can be made to work. By "copy-out" I mean to put into the terms of the Bill the wording of Article 9, which is the intention of the noble Baroness's amendment. The data protection regime is an extremely detailed network of private rights and public regulation. We are plainly called upon to give a satisfactory detailed, clear and faithful expression to the policy set out in Article 9 as the only realistic means of incorporating the reconciliation it speaks of in our Bill.

We have not ducked the issue of coming to a view on what and when exemptions are necessary to reconcile information privacy with freedom of expression. We cannot duck the issue. We have identified the provisions of the Bill from which we think exemption will at least potentially be necessary, about which there appeared to be no debate. We have identified three elements, all of which are necessary before any exemption may be relied on. In other words, we have decided to tell the citizen what elements must be made out before the balance is tipped in favour of freedom of expression. We have not simply used the word "necessity", which would provide inadequate guidance for the individual citizen in determining where the balance is to be struck.

The three conditions which the noble Lord set out in his speech are our interpretation of what is necessary to reconcile privacy and freedom of expression. The exemptions are no less and no more than what is necessary to achieve that reconciliation. The necessary conditions which must be satisfied are mandatory. In other words, all three conditions must be satisfied before one achieves reconciliation or obtains exemption. We are saying that one achieves reconciliation if one is engaged in journalistic, literary or artistic activity, which is the open door in the directive. The Bill states that:


    "the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and ... reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes".

Therefore, the data controller must reasonably believe that it is in the public interest to publish, having regard to the need for freedom of expression, and reasonably believe that compliance with the provisions of the Act is incompatible with the special purposes--journalistic, literary or artistic.

The noble Lord, Lord Lester, suggested that we are obliged to require as a prerequisite of reliance on the exemptions that the data controller reasonably believes that publication would be "necessary" in the public interest. For the reasons I have explained, that is not correct. In our view, the fact that the three requirements are mandatory is enough to indicate where the balance is to be struck.

As to whether the amendment would be an improvement, which is the second limb of the noble Lord's argument, we have great difficulty with the concept of "necessary" publication. When is the publication of an individual story "necessary" in the public interest? That is the question posed by his amendment. It is difficult to conceive of a "necessary" publication in isolation from the more general requirements of freedom of expression. The Bill explicitly directs particular attention in this context to

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the special importance of the public interest in freedom of expression. This gives the weighting which we believe is required by the reconciliation of the rights to privacy and freedom of expression by suggesting that there is a general sense in which publication per se is an exercise of freedom of speech in which there is a general public interest.

The public interest in privacy is signalled loud and clear throughout the Bill, and some restoration of the balance in the present context is, we believe, necessary. So if a data controller reasonably believes that publication would be in the public interest, having regard to the special importance of the public interest in freedom of expression, we believe that to be a proper and sufficient expression of one of the conditions for reliance on an exemption.

We do not believe it appropriate to introduce the concept of "necessary" publication in individual cases. There is a sense in which an individual publication is hardly ever necessary in the public interest. There is a sense in which, as a particular example of a general rule about freedom of expression, it will almost always be necessary in the public interest; at any rate, if the publication itself has that quality. We do not see how this could work satisfactorily and we do not believe that we are required by our international obligations to include this idea.

With the greatest of respect to the noble Lord, we reject the idea that it is required by Article 9 because we believe that by imposing the three mandatory conditions we have struck the balance to which we are entitled under Article 9. We further believe that we would not improve the Bill by introducing the concept of "necessary" publication in the public interest because--and again I say this with the greatest respect--it is difficult to apply and may mean everything or nothing. We respectfully submit that it is not a helpful way of amending the Bill.

We believe that the amendment tabled by the noble Baroness provides the system with no assistance whatever in seeking to reconcile the balance in the context of a Bill which is determined to lay down detailed provisions as to how data protection is to operate in this country. Therefore, we do not regard her amendment as either appropriate, necessary or helpful and I invite the noble Baroness and the noble Lord to withdraw their amendments.

Viscount Astor: My Lords, before the Minister sits down, perhaps I may make two brief points. We on this side of the House entirely accept his argument and would not support the amendments. Indeed, perhaps they would have been better debated in Committee because the issue is complicated. I believe that Amendment No. 7 in particular does not work at all.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for his explanations. He used the phrase "with great respect". It is an expression which lawyers

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use to each other when they are at their most adversarial. I have the greatest respect for the noble and learned Lord the Solicitor-General--

Lord Hoyle: My Lords, I thank the noble Lord for giving way. As this is Third Reading, there is only the noble Baroness, Lady Nicholson, to reply.

Lord Lester of Herne Hill: My Lords, I thought that we were debating all three amendments together. I must necessarily move my amendment and deal with it separately, if that is the pleasure of the House. I had thought that it was more convenient to deal with the matter in this way, both of us indicating whether we wished to move the amendments. If that is for the convenience of the House, I can deal with it briefly.


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