Data Protection Act

¶Introduction

¶4.1 On 10 May 2006, the Information Commissioner published his report to Parliament entitled

"What Price Privacy? The Unlawful Trade in Confidential Personal Information".144 The background to, and the contents of, this report and the follow-up report entitled "What Price Privacy Now?" are both covered in greater detail in Part H above in the context of a broader discussion of the work of the Information Commissioner. This section of the Report is devoted to narrower questions relating to the way in which s77-78 of the Criminal Justice and Immigration Act 2008 came to be enacted, but not implemented and, in particular, how far press influence was brought to bear on Government policy in relation to these amendments to the Data Protection Act 1998 (DPA).

¶4.2 In this context, it is unnecessary to address any, save one of the issues raised in the Information

¶Commissioner's reports to Parliament. The first report, What Price Privacy?, made the case I for increasing the maximum penalty for the offence of misuse of personal data in breach of

s55 of the DPA from a fine to a custodial sentence of two years. The Foreword to What Price Privacy? encapsulated the matter thus:145

"The crime at present carries no custodial sentence. When cases involving the unlawful procurement or sale of confidential personal information come before the courts, convictions often bring no more than a derisory fine or a conditional discharge. Low

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penalties devalue the data protection offence in the public mind and mask the true seriousness of the crime, even within the judicial system. They likewise do little to deter those who seek to buy or supply confidential information that should rightly remain private. The remedy I am proposing is to introduce a custodial sentence of up to two years for persons convicted on indictment, and up to six months for summary convictions. The aim is not to send more people to prison but to discourage all who might be tempted to engage in this unlawful trade."

¶4.3 In order to give effect to these recommendations, primary legislation would need to be

enacted to alter the maximum penalties laid down in s60 of the DPA for breaches of s55. The ICO noted that a follow-up report would be published within six months in order to monitor progress on the recommendations made.

¶4.4 At least initially, the Government appeared to be amenable in principle to introducing

a custodial sanction in line with the ICO's recommendation. The Foreword of What Price Privacy? concluded with the observation that preliminary discussions with the Government had been encouraging:146

"These concerns, and the need for increased penalties, have been raised with the Department for Constitutional Affairs. The positive response that I have received so far is encouraging. These are early and welcome indications of progress on the possibility of Government action."

¶4.5 On 24 July 2006, the Department for Constitutional Affairs (DCA) published a consultation

paper on increasing the penalties for breaches of s55.147 This sought views on whether the proposed custodial sentences would act as an effective deterrent to those who deliberately or recklessly misused personal information. The consultation period ended on 30 October 2006.

¶Responses to the consultation document 4.6 The majority of respondents welcomed the introduction of custodial sentences. They

indicated that the introduction of such sentences would provide a greater deterrence to potential offenders, provide public reassurance that offenders would receive the appropriate sentence, and achieve parity with a number of disparate pieces of legislation which dealt with similar offences.

¶4.7 However, although the ICO's recommendations were not specifically targeted at the press,

it was the press that co-ordinated the vociferous formal objections to them. In response to the consultation, the press strongly argued that the introduction of such penalties would I have a 'chilling effect' on journalism and that this was contrary to the principle of freedom of expression.

¶4.8 Notwithstanding these objections, the Government's position remained that the introduction

of custodial sentences was both appropriate and in accordance with the views of the majority of respondents to the consultation document. By the time the ICO's follow-up report, What Price Privacy Now? The First Six Months' Progress in Halting the Unlawful Trade in

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Confidential Personal Information148 was published in December 2006, the ICO considered itself to have achieved some success. Not only had the consultation paper received a majority of favourable responses, but What Price Privacy Now? had attracted a significant amount of public attention and media coverage. The follow-up report concluded that the ICO would:149 "...continue to press the government to introduce the option of a prison sentence and see this progress report as supporting that goal."

¶4.9 On 7 February 2007, the Secretary of State for Constitutional Affairs, Lord Falconer of Thoroton

QC, made the following statement in the House of Lords:150 "I have today published the Government response to the consultation paper "Increasing Penalties for Deliberate and Wilful Misuse of Public Data" (C/P9/06)… The response sets out how we will reform section 60 of the Data Protection Act 1998 to ensure that there is robust protection for personal data, and to strengthen individuals' right to privacy…. The Government believe that the existing financial penalties are not sufficiently protecting people's personal data. … In summary, following careful consideration of the responses received, we are proceeding with the proposals to introduce custodial sentences to section 60 of the Data Protection Act. The Government are clear that custodial penalties will be reserved for the most serious breaches of the Act. We will seek to introduce an amendment to the Act as soon as parliamentary time allows."

¶The Criminal Justice and Immigration Bill

¶4.10 By clause 75 (later clause 129) of the Criminal Justice and Immigration Bill, it was proposed

to amend s60 of the DPA to increase the penalties for offences under s55 of the Act, to allow for a period of imprisonment of up to six months following summary conviction and up to two years following conviction on indictment. It is important to note that, at that stage, the Government did not have in mind any other alteration to the law such as the introduction of a subjective element to the existing public interest defence.151

¶4.11 The Bill received its Second Reading in the House of Commons on 8 October 2007, and at that

stage Clause 75 did not appear to be generating any serious controversy. As at 27 November 2007, the Government was still actively rejecting any suggestion that this clause could have a 'chilling effect' on the press, and were pressing ahead with the relevant amendments.152

¶4.12 However, in early 2008 it became clear that the press was organising a serious and concerted

campaign against the proposals. The Rt Hon Jack Straw MP was Secretary of State for Justice during the relevant period.153 His written evidence records that he received a number of

¶I representations from members of the press particularly in January 2008, and that a number of meetings to discuss the press concerns were held.154

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¶4.13 By February 2008, and following continued vociferous representations from the press, the

Government was proposing to withdraw clause 75 (now clause 129) completely. The ICO expressed deep regret at this proposed course of action.155 A letter from Mr Richard Thomas dated 4 March 2008 noted that:

"The representations against the measure from media organisations have not been convincing. In effect, they are arguing against a criminal offence which has been on the statute for many years. They object to tougher sanctions against activities which they say do not exist or are not widespread. The louder their protests against stronger penalties, the more it suggests questionable practices. The offence is only committed when there is deliberate or reckless disclosure of personal data without the consent of the organisation which holds it. The implication of their case is that they wish to be able to break the law... This is a pernicious, and largely hidden, illegal market and I am determined to stop it."

¶4.14 Mr Thomas met the Prime Minister on 5 March 2008 to discuss the proposed withdrawal

of clause 75. Mr Thomas's notes of the meeting record that the Prime Minister "accepted that a strong sentence is needed to deter all those involved", but "at the same time, he is concerned to strike the right balance with protecting freedom of the press, especially in relation to legitimate investigative journalism. Now that some time has been bought (between Committee and Report stages in the Lords) he wants a compromise position to be achieved to minimise media concerns."156

¶4.15 The compromise which was in the end achieved saw the replacement of clause 75 with two

provisions, each of which required secondary legislation to be activated: the first providing an additional defence to the offence in s55 of the DPA as to subjective belief in the journalism in question being in the public interest; and the second providing for an increase in the maximum penalties under s55 to terms of imprisonment in line with the original proposals, but only after consultation. These provisions were enacted in the form of ss77 and 78 of the Criminal Justice and Immigration Act 2008 and, as has already been noted, the relevant secondary legislation has not as yet been introduced.

¶4.16 The Government's official position therefore changed radically during this period. It is clear

that pressure from the press as a whole was brought to bear, but cause and effect is not necessarily established by narrating the relevant sequence of events. The influence of press lobbying, and the Government's reasons for their change of policy, therefore fall to be examined.

Evidence of lobbying behind the scenes: reasons for the policy I change

¶4.17 Not merely did representatives of the press makes strong public representations against the

introduction of a custodial sentence, but a number of significant meetings took place behind the scenes. The issue was clearly one which the press had taken to heart, and the nature of the relationship of a number of key players with politicians was such that ready access was available.

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¶4.18 The Prime Minister, Mr Brown, dined with Les Hinton, Murdoch MacLennan and Paul Dacre

on 10 September 2007. Mr Hinton, then Executive Chairman of News International, did not give evidence to the Inquiry. Mr MacLennan gave evidence on 10 January 2012 but was not asked to deal with this occasion. The accounts I received from Mr Brown and Mr Dacre are different in emphasis if not in substance. Mr Brown's account of the dinner was as follows:157

"A. I remember the issue. I told them, as we started the dinner, what my own view was. I didn't ask them for their view, I'm afraid. Maybe I should have. I told them what my view was, that there should be a public interest defence, and therefore it wasn't a question of them lobbying me. I was informing them that this was my view, but that Michael Wills, who was an excellent minister, and Jack Straw, who was doing a great job on this, were consulting people about how we could implement this in a way where there was a public interest defence but we weren't going to back off entirely the potential need for legislation. Q. Mr Dacre's account doesn't quite match that, Mr Brown. Under tab 34, he gave a speech to the Society of Editors conference on 9 November 2008. So it's about 16,¹⁷¹⁷ http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Key-Questions-Module-2.pdf p8, para 24-25, http://www.bahamousainquiry.org/linkedfiles/baha_mousa/key_documents/rulings/ standardofproofruling7may2010.pdf p66, lines 1-12, Dr Rowan Cruft, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-16-July-2012.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Christopher- Megone.pdf pp66-67, line 25-6, Professor Baroness Onora O'Neil, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Transcript-of-Afternoon-Hearing-16-July-2012.pdf p85, lines 10-15, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Morning-Hearing-29-November-2011.pdf ibid Article 5 of the Royal Charter, http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter. pdf p4, para 7, ibid O'Malley, T and C Soley, Op cit, p58 p85, para 190, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of- Richard-Thomas-CBE1.pdf; p2, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/RJT- Exhibit-47.pdf pp34-35, para 66, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter- Clarke.pdf pp5-8, paras 19-27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-of- DAC- Sue-Akers.pdf; p5, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness- Statement-of-DAC-Sue-Akers.pdf pp56-57 passim, Helen Belcher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-8-February-2012.pdf February 2012, and various articles and dates thereafter p41, lines 6-8, Paul McMullan, ibid p14, lines 7-13, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-23-November-2011.pdf pp49-54, lines 1-12, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Afternoon-Hearing-24-November-20112.pdf; p7, para 19-22, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-JK-Rowling2.pdf p14, line 20, John Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Afternoon-Hearing-17-January-2012.pdf; p9, para 33, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-John-Witherow.pdf p24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Condon.pdf p12, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Stevens. pdf p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Michael-Sullivan. pdf Interim ACPO Guidance for Relationships with the Media, para 10.3, http://www.acpo.police.uk/documents/report s/2012/201204IntGuiMediaRels.pdf pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-Witness-Statement-of-Richard- Thomas-CBE.pdf p70, lines 21-22, Richard Thomas, ibid pp40-41, lines 23-1, Christopher Graham, ibid p17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted. pdf pp45-47, lines 25-3, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-5-December-2011.pdf Part H, Chapter 5, para 2.108 Part I, Chapter 5 p23, lines 2-7, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-16-May-2012.pdf p47, lines 7-13, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf pp2-3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-91.pdf pp70-71, lines 23-20, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript- of-Morning-Hearing-24-April-2012.pdf pp26-27, lines 13-3, ibid p16, lines 21-25, ibid pp1-3, paras 1-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Claire-Enders- Enders-Analysis.pdf For example, the majority of organisations operating as financial services markets, exchanges and firms which are regulated by the Financial Services Authority, and firms defined as the regulated sector under the Proceeds of Crime Act 2002 commonly have compliance departments Numerous examples were provided by the evidence both of victims and solicitors acting in these cases: p10, J lines 2-11, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-21-November-2011.pdf; p39, line 15, Christopher Jefferies, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Transcript-of-Morning-Hearing-28-November-2011.pdf; pp92-97, lines 21-5, Mark Lewis, http:// www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Morning-Hearing-23-November-20111. pdf; p44, line 20, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-23-November-2011.pdf; para 39: http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Submission-on-behalf-of-Neil-Morrissey.pdf. In addition, when making submissions to Lord Justice Jackson, almost all claimant firms placed great importance on the role of CFAs in offering non-wealthy claimants access to justice p17, para 103, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald- Patrick-McCann.pdf p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Further-Submission-from-Professor- Christopher-Megone.pdf paras 3.9-3.14 below K p1, ibid p2, para 7, point 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Joint-Submission-by-Core- Participant-Victims1.pdf http://www.presscouncil.ie/about-the-press-council.77.html http://www.ejc.net/media_landscape/article/norway/ p9, Speech by Lord Judge, Lord Chief Justice of England and Wales 19/10/2011 http://www.judiciary.gov.uk/ Resources/JCO/Documents/Speeches/lcj-speech-annual-justice-lecture-2011.pdf Part K, Chapter 4, para 16.4 Part K, Chapter 7, para 4.40 See Applications 8384/78, 8406/78, Glimmerveen and Hagenbeck v Netherlands 18 DR 187 (1979), EcomHR (racist literature); Application 9325/81, X v Federal Republic of Germany 29 DR 194 (1982), EcomHR (Nazi leaflets);Show full note months after the relevant date. A. Yes. Q. He says: "About 18 months ago [he means on 10 September 2007] I, Les Hinton of News International and Murdoch McLellan [sic] of the Telegraph, had dinner with the Prime Minister Gordon Brown. On the agenda was our deep concern that the newspaper industry was facing a number of very serious threats to its freedoms." Then he said: "The fourth issue we raised with Gordon Brown was a truly frightening amendment to the Data Protection Act." This is the amendment – A. I don't think there's any disagreement in these accounts. He had it on his agenda for the meeting. They raised it, but I told them as they raised it: "Look, this is my view." I didn't say, "I'm waiting to hear your view"; I told them: "This is my view." I remember this distinctly. I had already made up my mind before I went into the meeting, and I told Jack and Michael that there should be a public interest defence and that we should probably postpone the implementation of this clause. Look, at that time, of course, we didn't have all the information we now have about the abuse of this – of data by the media. At that time, there was no suggestion that there was

¶I anything other than what was called the rogue hacker. But again, my instinct is still

the same, that there ought to be a public interest defence. I know it's uncomfortable, because you are balancing off two freedoms, as we said at the beginning. You have this right that I would defend for people to have privacy, and you have this right of the media, I would say the individual, to express themselves and for the media to do this through a freedom of speech and therefore a willingness or ability to investigate things that are wrong, and you are balancing off these two freedoms. It seemed to me that we may end up with the custodial sentences, and that was an option that was left to us. We said we'd come back to this, but at that time we thought that – let us look at whether a public interest defence can be introduced into this legislation, which is what we did."

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¶4.19 During the course of his oral evidence to the Inquiry, Mr Dacre touched on his lecture to the

Society of Editors in 2008 but was not asked to address in detail the exact circumstances in which the DPA issued was raised and discussed on this occasion; there was evidently not thought to be an issue about it at that time. His understanding was that Mr Brown was hugely sympathetic to the industry's case and promised to do what he could to help.158

¶4.20 Mr Brown's recollection was that the initiative came from him, rather than that he was

responding to press influence or pressure. Mr Dacre's was more along the lines that he and his press colleagues had proved to be persuasive.

¶4.21 A few questions perhaps arise. First, if Mr Brown was as sympathetic to the press case as Mr

Dacre claimed, why was the Government were still pressing ahead with a Bill introducing a custodial sentence without a revised public interest defence as late as 27 November 2007? Secondly, Mr Brown's testimony did not touch on the issue of the custodial sentence which was, after all, at the centre of the press concerns; he referred instead to the need for a public interest defence. This overlooks the fact that s55 of the DPA in its un-amended form already contained such a defence, admittedly one cast in objective form.

¶4.22 Lastly, Mr Brown's assertion that, in September 2007, his knowledge as to the extent of data

abuse was somewhat limited ("we didn't have all the information we now have about the abuse of this – of data by the media. At that time, there was no suggestion that there was anything other than what was called the rogue hacker")159 may be a mis-recollection of the background events that triggered the move to amend the legislation. The contents of the ICO's two reports were the reason for Parliament debating amendments to the statute in the first place: there was no doubting what they said. The 'rogue hacker' issue was relevant to the standing of the press and the extent to which journalists were likely to break the law but it had no bearing on the Motorman case: there was no question of increasing the penalty for offences under RIPA and both Clive Goodman and Glenn Mulcaire had, in fact, been sentenced to terms of imprisonment.

¶4.23 Accordingly, the impact of the private dinner of 10 September 2007 on the evolution of

Government policy at this time is difficult to tell. Mr Dacre clearly believed that it made a difference; an examination of the chronology suggests that official Government policy remained unchanged.

Parliament lay with Mr Straw as Secretary of State for Justice. As has been pointed out, and as was scarcely unusual, Mr Straw was also subject to behind-the-scenes lobbying by senior members of the press, including Mr MacLennan, Mrs Brooks, Guy Black and Mr Dacre, the latter of whom Mr Straw had known from their university days and with whom he enjoyed a 'respectful' relationship.160 I

¶4.25 Mr Straw's written evidence recorded that as a result of the representations made by the press

(which included those received at a meeting that he had with Mr Dacre, Mr MacLennan and Mrs Brooks), and despite the Government's commitment to bringing in custodial sentences, he proposed to ministerial colleagues that the relevant clause should be withdrawn from the Bill to enable all parties to work out a compromise.161 Interestingly, at no stage during his written or oral testimony did Mr Straw indicate that he had had any conversation with the Prime Minister which referenced the latter's preference for a public interest defence.

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¶4.26 In oral evidence, Mr Straw explained why the Government's position changed. Having referred to meetings he had had with various parties, Mr Straw was asked:162

"Q: If we can look at the text of the letter dated 12 February 2008, you write to Mr. Dacre. Under the heading "Data Protection Act", you say: "We're not proposing to criminalise any conduct which is currently against the law. However, we do understand your and the media's concerns more generally about the introduction of custodial sentences for breach of section 55. We have no wish to curtail legitimate and responsible journalism, and when the proposed penalties were designed it was not considered that they would have that effect. We're not aware that section 55 has caused any problems such as a chilling effect since the DPA came into force. The penalties were proposed and strongly argued for by the Information Commissioner to strengthen the protection of individuals' rights to respect for their privacy... But I have reviewed your proposals in light of the important points which you and others have made. As I explained when we met, I was increasingly minded to consider inclusion of provision for the reasonable belief of someone at the time an offence was committed. I understand that there will still be considerable anxiety about the potential impact of this measure and that there is, therefore a case of reconsidering it in slower time." Then you say "Alongside this, I am faced with the overwhelming need to achieve royal assent for the bill by 8 May 2008, when the existing legal restrictions against prison officers taking industrial action otherwise terminate. Taking all these factors into account, I'm making a further recommendation to colleagues and I will be back in touch". So you're faced here, Mr. Straw, with a double pincer movement. On the one hand, you have the press stirring up trouble, making the arguments you'd expect them to make, and we can analyse those in a moment, and you would say, perhaps even more importantly, you had to get the bill through by a particular date because there were other provisions in it which were absolutely vital. Is that it? A: Yes... I'm afraid that other issues then became subordinate to it. That's life, that's politics. ... Q: Mr. Straw, we understand this is, as it were, a classic case study in realpolitik. Royal Assent had to be obtained by a certain date for reasons extraneous really to the merits of section 55. Had it not been for that consideration and/or the pressure you were under by the press, would your policy position have been either adhere to the

¶I original position, in other words just up the sentence to include a custodial penalty,

or were you in fact persuaded by the merits of the argument that the subjective/ objective test should be introduced? A: .... I'd like to say that even in slower time I would have made the same judgment about the subjective defence that was inserted, but I can't say for certain ... I am absolutely clear that the two went together, and I mean I regret the fact that that I didn't bring in the amendment to section 55 before the election, and I think it ought to have been brought in by now, but there we are"

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¶4.27 The immediate cause of the compromise, which ultimately was fashioned in the form of

ss77 and 78 of the 2008 Act, was the political reality of the need to enact the whole statute before 8 May 2008, in the face of a threat of industrial action by prison officers. Mr Straw in particular formed the political judgment that this could only be achieved by compromise, notwithstanding that this had, at least, the appearance of yielding to pressure. Although the Government had a sufficient majority in the House of Commons to force through this legislation in its original form, it had never had a majority in the House of Lords, and there clearly was a risk that the Peers might decide to block or delay the Bill on this very point.163 By then, the press had very publicly made it an issue, which was no doubt part of their overall strategy.

¶4.28 Mr Straw was also asked to explain whether he had been persuaded by the logic and overall

merits of the press case, or whether political imperatives predominated. Understandably, and very frankly, Mr Straw found that a difficult question to answer given the difficulty in disentangling cause from effect: as he put it, "because I became persuaded, if you follow me, so you have to work out why you were persuaded...".164

¶Reflections 4.29 The evidence leaves no room for doubt that the press brought its full resources and influence

to bear on an issue about which it clearly felt very strongly. In that respect, it was acting no differently from any other interested party with political influence in relation to proposed policy or legislative changes. Their case was highly stated, and to a degree they had the Government over a barrel on timing. The merits of the argument are dealt with in detail in Part H.

¶4.30 The dinner engagement of 10 September 2007 must have made it clear to Mr Brown just

how seriously the press was prepared to campaign on this issue, and one way or another he made it clear to his interlocutors that he might be prepared to move on aspects of the policy. Having said that, the DPA amendments was only the fourth item on Mr Dacre's agenda and, as has already been pointed out, the Government adhered in the short term to its policy.

¶4.31 But Mr Brown would have been aware of how high the stakes had become, and that if the

passage of the amendments through Parliament became problematic, for any reason, then he was taking a significant political risk. These risks became more acute in January 2008 as pressure mounted, press lobbying intensified and deadlines loomed. Furthermore, there was at least some presentational attraction in the argument that the increase in the sentencing options should be matched by a broadening of the scope of the public interest defence.

¶4.32 However, if anxiety about the passage of the Bill prior to 8 May 2008 might explain the I

compromise at that time, it does not explain why in the two years that followed the passage of the legislation until the general election, the legislation was not, in fact, commenced. Nobody has suggested that the policy had changed because something had happened to cause the Government to consider that the legislation had been misconceived. A more plausible explanation may be that the impetus that had been provided by the What Price Privacy? reports had been lost and, for understandable reasons, the fast approaching general election meant that a further battle with the press over implementation was the last thing that the Government wanted.

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¶4.33 I am not in a position to reach a decision as to the reasons why, four years on, legislation that

Parliament saw it fit to enact has still not been commenced. Its commencement is now said to be dependent on the recommendations that I make notwithstanding that the focus of the ICO is not on journalists but others who commit egregious breaches of the data protection legislation.