Data Protection, Peerage and Privilege

January 20, 2015

In Ranger v The House of Lords Appointments Commission [2015] EWHC 45 (QB), Dr Ranger sought to rely on the Data Protection Act 1998, s 7 so as to discover the contents of letters written to the House of Lords Appointments Commission which he believed related to his nomination for a peerage. His claim was rejected.

Purely for the purposes of argument, Knowles J assumed that the material sought was personal data within the meaning of the Act (although he expressed some doubts about that). Even with that considerable leg-up, Dr Ranger faced a formidable hurdle in that para 3 of sch 7 to the Act includes an exemption in respect of any honour or dignity, as follows:

‘Personal data processed for the purposes of—

(a) assessing any person’s suitability for judicial office or the office of Queen’s Counsel, or

(b) the conferring by the Crown of any honour or dignity,

are exempt from the subject information provisions.’

It was argued that a peerage is a public office in its own right and that ‘honour or dignity’ should be interpreted narrowly to exclude peerages. That argument was doomed and rejected on a number of grounds (see [16]-[19]). It was also suggested that as a limited exemption applies in similar circumstances under the Freedom of Information Act 2000 where the public interest in maintaining the exemption outweighs the public interest in disclosing the information as matching exemption could be implied under the Data Protection Act. Readers will not be surprised to learn that Knowles J did not think that statutory interpretation worked like that (at [22]). The third basis for argument was more credible (which is not saying much) in that it was suggested that the implementation of the Data Protection Directive was defective insofar as para 3 of sch 7 restricted a data subject’s rights. Such a restriction was consistent with the Directive only if it was ‘a necessary measure to safeguard … (g) the protection of the … rights and freedoms of others‘. Knowles J accepted that such a restriction had to satisfy the principle of proportionality but, in his view (at [28]-[29]), para 3 of sch 7 ‘helps ensure the confidentiality of information provided to the Commission concerning those being considered for appointment to the House of Lords. The measure serves the objective of helping protect the rights of those who have provided the information in confidence. More broadly, because at least some information will only be provided if its source or content is kept confidential, the measure also serves the objective of helping ensure the protection of the rights of all members of the public to have the fullest information provided, with full candour, to the Commission in its work in connection with appointments to the House of Lords.‘ Knowles J was not persuaded that a less intrusive measure, such as under the FOIA, was workable.

The full judgment, which deals with, and dismisses, a couple of even more hopeless arguments can be found here.