Information Commissioner wrong to blame Parliament and the Courts

Ten days ago, the new Information Commissioner, Christopher Graham, was given a difficult time by MPs of the House of Commons Culture, Media and Sport Committee. The reason: he admitted to the Committee investigating “Press Standards, Privacy and Libel” that he did not have the resources to enforce the Act against the three hundred or so journalists who had used private investigators to obtain personal data unlawfully. He also said that Parliament and the Courts had let him down in not implementing his enforced powers in the Act (e.g. powers to fine and the increased custodial sentence)

The MPs were concerned that the Commissioner was reluctant to take on a powerful interest group and had failed to apply his powers to journalist excess. In countering this charge, the Commissioner pleaded that the market in personal data was not limited to journalists and that there were evidential problems in pursuing the matter. Foremost, for example, was whether or not any personal data obtained for a story by the use of a private investigator was in “the public interest”.

However, I think the real reason for not taking on the press is a pragmatic one. First, the Commissioner would take on a group of data controllers who have a special status thanks to the “special purpose” provisions of the Act. It is obvious that the press would argue that their ability to report freely was being impeded and any serious legal action would be defended, if need be, up to the House of Lords and beyond. In addition, there is the risk that the Press Complaints Commission could claim that the Commissioner was disturbing the delicate balance between press freedom and privacy by crudely placing his tanks on their lawn.

In other words, if the Commissioner were to take on the press, he would become stuck in a legal quagmire and would get nowhere, fast. He could also kiss goodbye to any chance of sympathetic press headlines.

With respect to the Courts and Parliament, I think the Commissioner is wrong to blame Parliament and the Courts. Readers with long memories will recall that it was Jack Straw who as Home Secretary ensured that the Data Protection Commissioner was a weak regulator with little powers. By some strange coincidence, it was the same Cabinet Minister who gave us a FOI Act with a very large number of exemptions. Now, by quirk of fate, he is deciding when to produce the Statutory Instruments that commence the Monetary Penalty Notice and the custodial sentence.

Clearly, the Government is having difficulties “getting the right balance” as to when to start these enhanced powers. This, of course, has nothing to do with the fact that personal data are continuing to be lost by public bodies subject to Ministerial control, and the fact that there is a need to keep the press “on-side” in the run up to a General Election.

The Commissioner’s evidence session can be watched on http://www.parliamentlive.tv/Main/MeetingDetails.aspx?meetingId=4645.

Uncorrected transcript on http://www.publications.parliament.uk/pa/cm200809/cmselect/cmcumeds/uc275-xiv/uc27502.htm.