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Lord Hoyle: My Lords, will the noble Lord move his amendment later?

Lord Bridges: My Lords, perhaps I may make a brief comment on the debate so far--

Lord Hoyle: My Lords, I am afraid that it is for the noble Baroness, Lady Nicholson, to reply.

Baroness Nicholson of Winterbourne: My Lords, I am grateful to the noble and learned Lord the Solicitor-General for his comments on my amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 7:

Page 19, line 25, after ("be") insert ("necessary").

The noble Lord said: My Lords, I have spoken to this amendment at some length. Perhaps I may be economical and deal simply with the points that have been raised. First, the principle of proportionality is a general principle of Community law. The test of necessity must be read in context, and under the convention and the directive it is necessary for the courts to weigh competing public interests and rights using the test of necessity. The defect in Clause 31 as it stands is that it does not provide the courts with the proportionality criterion, but leaves the whole matter to the reasonable belief of a member of the media organisation, the data controller. Therefore, the Bill as it stands at present does not provide the necessary legal standard which is required both by European Community and European Convention law.

If we leave the Bill in that way, the misfortune is that it will be litigated upon. The first case in which a newspaper is alleged to have intruded upon personal privacy in data processing--where the data controller says that he has a reasonable belief and where an attempt is made to challenge that belief--will be based upon the proposition that this Bill does not implement properly the directive or the European Convention on Human Rights.

When the Human Rights Act comes into force, the courts will be obliged to construe the Data Protection Act, if they possibly can, so that it is compatible with

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Articles 8 and 10. It is not good enough for us to leave this Bill to be made sense of, if I can express the matter in that way, under the Convention and the directive by a process of judicial interpretation if we are able to use language in the Bill which achieves that result.

At present, the media are under the totally false impression that having secured Clause 31, which is a virtually open-ended exemption, that is where the matter will end. In that, they are completely mistaken because if I am right in my opinion about the European law, it will be entirely open to a data subject to rely upon Article 8 of the Convention and the principle of necessity and proportionality, of course having regard to the particular context. That context is the importance of freedom of speech. But the importance of freedom of speech is not an absolute concept.

We shall say au revoir to this Bill; it will go to another place; and if the Government do not think again and I am right, the only beneficiaries will be the members of the legal profession. They will find themselves involved in complicated litigation because the Government have not wished to write on the face of the Bill that which is required by European law.

I am concerned that our statutes should be enacted properly in accordance with European law. In the light of that, and not, if possible, have to be interpreted by the courts to put them right under European law, that I very much hope that even if the noble and learned Lord the Solicitor-General is unwilling to accept my amendment, he will be sufficiently open-minded to say that he will reconsider the point when the Bill travels to another place to see whether there is not some way of writing into the Bill the European test of necessity and proportionality instead of leaving it to the personal but reasonable belief of a member of the media organisation, with all the litigation which will follow as a result. I beg to move.

4.45 p.m.

Lord Falconer of Thoroton: My Lords, I have obviously heard and will consider with an open mind what the noble Lord has said. However, the Government's present view is that Clause 31 does effectively comply with the obligation under Article 9 and that it is both in compliance with the law and the best way of dealing with the matter.

Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, does he accept that the courts will have to apply the proportionality principle in interpreting Clause 31 and Article 9 of the directive and the European Convention on Human Rights?

Lord Falconer of Thoroton: My Lords, if the courts apply Clause 31 in accordance with its terms, they will be acting in accordance with the provisions of Article 9 which, in its turn, involves compliance with the Convention.

Lord Lester of Herne Hill: My Lords, I am most grateful. I am reminded of the story of the father with

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the naughty daughter who gets lost in the middle of the city. She keeps saying, "Daddy, daddy, where are you?" "Shut up", he explained. It seems to me that in the nicest possible way, the noble and learned Lord the Solicitor-General has not really answered my point. In spite of my criticisms, he simply said that the Government are satisfied that somehow there is compliance with the tests of proportionality and necessity which, as I say, is not the same as reasonableness.

This is not a matter to be tested by political muscle or numbers. I very much hope that it will be reconsidered. If it is not reconsidered in Parliament, it will surely come to be considered in our own domestic courts and in the European courts. That is my prediction. For the reasons I have given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 and 9 not moved.]

Lord Lester of Herne Hill moved Amendment No. 10:

Page 19, line 39, leave out ("may") and insert ("must").

The noble Lord said: My Lords, this amendment deals with a wholly separate and important matter. Its purpose is to ensure that the very broad media exemption in Clause 31 satisfies another European legal principle; that is, the principle of legal certainty. Both under Community law and Convention law, the principle of legal certainty requires that the effect of legislation must be clear and predictable for those who are subject to it.

In its landmark judgment in the Sunday Times thalidomide case, the Strasbourg court decided that to satisfy the requirements of legal certainty, the law must be adequately accessible. That means that the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. The legal rule must be formulated with sufficient precision to enable the citizen to regulate his conduct. He must be able to foresee, to a degree that is reasonable in all the circumstances, the consequences which a given action may entail. Those consequences do not have to be foreseeable with absolute certainty, but they must be foreseeable with reasonable certainty.

As the Bill is currently drafted, determining whether the media exemptions in Clause 31 do or do not apply depends largely on whether the data controller's belief is a reasonable belief that the intrusion of a data subject's personal privacy is in the public interest. Clause 31 is without standards. It does not provide reasonably foreseeable criteria as to when the media are or are not immune from liability. Therefore, on its face, it fails to satisfy the requirements of legal certainty because neither the data subject nor the media can reasonably foresee in what circumstances a belief will or will not be regarded as reasonable. In particular, as I have pointed out already in relation to the earlier amendments, Clause 31 is flawed because it leaves out the proportionality principle.

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Clause 31(3) provides that in considering whether a data controller's belief that publication will be in the public interest was or is reasonable, regard may be had to his compliance with any relevant code of practice designated by order of the Secretary of State.

If the code of practice is reasonably precise, and if it contains the proportionality criteria that the interference with personal privacy must be necessary, I accept that that will satisfy the European principle of legal certainty provided that the individual and the media know that the criteria will apply.

But as Clause 31(3) stands at present, it does not require regard to be had to the data controller's compliance or failure to comply with the code of practice. In my view, that combination of a failure to prescribe the criteria in the code on the face of the Bill and the failure to require regard to be had to the criteria prescribed in the code of practice, together with the absence of any requirement that the code of practice should contain the test of necessity, create a serious risk that the statutory scheme will fail to satisfy the principle of legal certainty. If that happens, it violates Community law as well as Convention law.

Neither the data subject nor the media, including data controllers, will be able reasonably to foresee with sufficient certainty whether the obtaining, storing or publication of personal data will or will not breach the right to personal privacy embodied in the Bill because of the vagueness of the statutory criteria and the absence of any obligation to comply with the code. That is why I seek to make a one-word change, and to substitute for the word "may" the word "must" in Clause 31(3) so as to require regard to be had to the code in deciding upon the reasonableness of the belief. That is a most modest change and one which would do no violence to the structure of the clause or of the Bill. Indeed, it would go some way to ensure at least the certainty that what is in the code will be had regard to in deciding upon the reasonableness of the belief of the data controller. I very much hope that the noble and learned Lord the Solicitor-General will, in a fit of characteristic generosity, feel able to accept my modest amendment. I beg to move.

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