My Lords, I do not wish in any way to spoil the degree of harmony that appears to have grown up over these issues in Amendments 1 and 2. When I looked at both amendments, I was not convinced of the need for either. If, as the Minister rightly says, Amendment 1 does not create any new rights, given that we have a Bill of 242 pages with a number of complex provisions, it seems surprising that we need to restate the principles. Of course, if we restate them, we run into the danger of attracting the attention of the noble Lord, Lord Pannick, who can say, “If you’re going to restate the principles, you may restate them rather better”. Surely it is much more desirable to specify precisely what the Bill is intended to do in those bespoke provisions rather than resort to generality, which inevitably has imprecision.
On Amendment 2, I am not a great fan of the European Charter of Fundamental Rights. The position of the party opposite when it was first advanced was entirely correct: it should not add rights to any protection that already exists in our law. On this so-called right to protection of personal data, if an amendment is to be introduced at this rather late stage of the proceedings, surely the first question is: does it add clarity to the Bill? It does not. Does it provide better protection, doing something that is otherwise not covered by the Bill but ought to be? If that is the case, let us by all means have an appropriate amendment. Why does it not provide clarity? These provisions must ultimately
be interpreted by a court, as is recognised by proposed new subsection (7) in Amendment 2, which invites the court to,
“take into account any relevant judgment, decision, declaration or advisory opinion of the … Court of Justice of the European Union; and … European Court of Human Rights”.
Interestingly, the word “must” is used rather than “may”, which is the way that Section 2 of the Human Rights Act invites courts to have regard to the jurisprudence of the Strasbourg court. So a court is going to have to try to make sense of the relevant decision judgment of the Court of Justice of the European Union or the European Court of Human Rights. The ECHR does not have quite the same system of precedent that we have, and courts have often found it difficult to distil from the jurisprudence precisely what they should or should not be following. What if there were a difference between the interpretation of the Court of Justice of the European Union and the ECHR? That would provide further difficulties for a court.
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The noble Baroness, Lady Ludford, posed the question: what does “so far as it is possible to do” mean? The Minister will be invited to respond to that but presumably it means in so far as it is not inconsistent with the specific legislative provisions contained in the Bill—I do not know; the Minister may have a better answer than that. However, it seems to me that by invoking broad generalisations there is almost an admission that the Bill is not doing the proper job. It may satisfy a number of people’s understandable concerns about somehow striking the right balance between protecting personal data and allowing free access to data that is appropriate, but inserting, rather at the last minute, two general provisions of this sort does not seem to me to be making good law.