§ Mr. WaddingtonI beg to move amendment No. 15, in page 18, line 33, leave out from 'compensation' to end of line 34 and insert
'from the data user for that damage and for any distress which the individual has suffered by reason of the inaccuracy.'.
§ Mr. WaddingtonClauses 22 and 23 create important civil remedies for the data subject; they entitle him to compensation for any damage he may have suffered as a result of inaccuracy in personal data or as the result of the loss or unauthorised disclosure of data. In Committee and in Committee on the Bill's predecessor it was argued that the individual should also be compensated if he suffers distress in these circumstances, and in view of the strength of feeling expressed in Committee I undertook to reconsider the matter.
I have accordingly given careful thought to the question and have consulted the Lord Chancellor. The upshot is that I do not think that it would be right to make distress a totally separate ground for compensation. As the Lord Chancellor explained in another place, and as I reiterated in Committee, the difficulty lies in trying to quantify distress quite apart from any objective measurement of damage, and in the danger of encouraging purely speculative litigation. Let us suppose, for instance, that clause 22 were amended to allow compensation for distress only. Anyone who received a computerised standard letter in which his name was wrongly spelt would be able to claim that the error had caused him untold mental anguish and to institute legal proceedings. Equally anybody receiving a gas bill for £1 million rather than for 226 £10—even though the bill was mainfestly mistaken and there was no material damage ever in prospect—could resort to litigation and seek compensation for the distress caused to him. No doubt we could trust to the good sense of the courts to prevent the plaintiff from hitting the jackpot. None the less, I cannot see that we would be improving either this Bill or the law generally by allowing such an action to get off the ground in the first place, as we would if we founded a right to compensation upon distress alone. We want to discourage users from holding inaccurate data but we do not want to give birth to a litigant's charter by encouraging speculative actions.
I think that the approach which I am proposing in these amendments will go a long way towards meeting the concern that was expressed in Committee. The amendments have the effect that when a person has suffered damage in the circumstances covered by clauses 22 and 23 he will be entitled, in addition to compensation for the damage, to compensation for any distress which he has suffered. This arrangement, as I understand it, is in line with the general position in civil law in which distress independent of damage is not a ground for compensation but distress may be taken into account where compensation for damage is awarded. Under the clauses as amended, therefore, the plaintiff would still have to show that he had sustained damage. We see this basic condition as being essential if the wholly speculative action to which I referred earlier is to be excluded. None the less, the amendments take full account of the real feeling in Committee that, where damage is sustained, it will often be appropriate to look beyond the damage to the distress suffered as well when fixing the amount of compensation to be awarded.
§ Mr. Kilroy-SilkI welcome the major concession that the Minister has made to the points that were advanced in Committee by me, my hon. Friends the Members for Wrexham (Dr. Marek) and for Stretford (Mr. Lloyd), the hon. Member for Oxford, East (Mr. Norris) and, in spite of the Opposition, the hon. Member for Glanford and Scunthorpe (Mr. Hickmet). Unfortunately, in Committee the Minister poured scorn on the notion that there could be a legal concept of distress or compensation for distress. The Minister nods his head, but if he were to look at the record he would see clearly the pit he dug for himself on that occasion.
The important point that needs to be made is one that the Minister accepted and that the National Consumer Council made repeatedly in its representations to me, to my right hon. Friend the Member for Birmingham, Small Heath (Mr. Howell) and, I believe, to Conservative Members — that information about individuals, if inaccurate, could cause a great deal of mental anguish, psychological disturbance and distress. There should therefore, be compensation for distress that has occurred, even though there cannot be shown to be in any material sense damage arising to a person because of inaccurate information held about and passed on about an individual.
Unfortunately, I did not catch everything that the Minister said when speaking to the amendment. I assumed, on my reading of the amendment, that a separate concept of distress would be introduced into the Bill for the purposes of paying compensation—a concept that is already contained in other parts of the Bill, as we pointed out in Committee. The Minister said, I believe, that 227 distress will not remain in itself a reason for the payment of compensation. That is not my reading of amendment No. 18, which inserts at the end of clause 23
for that damage and for any distress".The amendment does not say that it must be damage and distress. The amendment suggests damage or distress. I say that not as a lawyer familiar with the interpretation of the law, but as a layman who believes that he understands plain English. As a layman understanding plain English, on reading the Bill I would think that if I had been distressed but not damaged by information held about me and were seeking compensation I would readfor that damage and for any distress.as meaning that I could obtain compensation for distress. I should like the Minister to clarify that point.
§ Mr. HickmetI did not in Committee oppose the concept of damages for distress. The point I was trying to make was that the Bill provided for damages for distress. That point has been clarified. I welcome that clarity, as does the hon. Gentleman.
§ Mr. Kilroy-SilkThe hon. Gentleman has not only dug a pit for himself but has put the noose around his neck. He was wrong in Committee. The Bill does not provide damages for distress, and that is why the amendment was moved.
We welcome the concession to the arguments that we put forward in Committee but we would like the Minister's further clarification of the points that I have made.
§ Mr. NorrisI regret to say that, for once, I find myself in certain difficulties. First, the hon. Member for Knowsley, North (Mr. Kilroy-Silk), who normally can elucidate precisely the meaning of each amendment tabled by the Government or the Opposition, has on this occasion manifestly failed to read the amendment accurately. Secondly, I regret to say that the remedy that, on a superficial reading, I thought would be available because of the amendment is not available. The argument advanced in Committee — it was wholly right and I actively supported it—was that the Bill covered areas in which the concept of genuine distress, such as should give rise in all equity to compensation, could arise even though there was no actual financial, property or other damage which normally might have involved an order for compensation.
My initial reaction on seeing an amendment that included the words
for that damage and for any distresswas to say, "That is very good. The Government have conceded the point and have introduced the concept of distress. This is a great move forward in the Bill." That is not, however, what is being offered. I read that amendment, as I am required to do, as applying to page 19, line 33, which means that the person who suffers damage because of the inaccuracy of the data shall be entitled to compensation from the data user for that damage. The person will be eligible for some compensation for distress only because of the inaccuracy.The Minister has used as his argument that it is difficult to define meaningful distress the point that it may be distressing to receive an over-large gas bill, to see a name spelt wrongly, and so on. I understand that it is difficult to define distress. The Minister went on to say that, therefore, damages may be paid for distress only when a person has already proved that he has suffered a financial 228 or property loss or suffered in another respect for which he would normally gain compensation. It seems to those of us who supported the idea of introducing a remedy for distress that that was precisely the point that we were trying to make. There are occasions when real distress is caused to data subjects above and beyond the trivial examples to which the Minister referred. I hope that the Minister will point out that, sadly, he is not offering any substantial concession. Will the new remedies available to the data subjects differ substantially from the remedies that were available previously? We have left untouched the one area in which we could have made progress — compensation for distress.
§ Mr. WaddingtonMy hon. Friend the Member for Oxford, East (Mr. Norris) is right on the law and the hon. Member for Knowsley, North (Mr. Kilroy-Silk) is, for once, wrong. There is no doubt about the effect of the amendment. The hon. Member for Knowsley, North did not give due weight to the fact that the second line of clause 22 includes the words "who suffers damage". Before the words in the amendment are activated there must be proof of damage. There can be no doubt about what we are offering to the House. I do not pretend that the measure goes as far as the hon. Gentleman might wish or as far as my hon. Friend the Member for Oxford, East now says that he would wish.
The Lord Chancellor's view is that any action for distress, independent of damage, could lead to speculative litigation in which it would be difficult for the courts to assess compensation on a realistic basis. It is true that race relations and equal opportunities legislation creates civil remedies for hurt feelings, but, as was explained in Committee, there is no real parallel with the civil remedies in this Bill. In those circumstances, it was concluded that it would be reasonable to allow compensation for distress where damage had been suffered. That approach is entirely consistent with the general position in tort. Normally, distress alone cannot found an action in tort. In many cases, once the plaintiff can show that he has sustained damage, he may be allowed compensation for any distress that he has suffered.
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My hon. Friend the Member for Glanford and Scunthorpe (Mr. Hickmet) talked about that matter in Committee. He suggested that the decision in Jarvis v. Swan Tours had the effect of establishing that entitlement to compensation for damage included an entitlement to compensation for any distress caused without any specific reference to distress being necessary. That decision is relevant only in a case in which there is a contractual relationship between the plaintiff and the defendant. The Jarvis case involved a client and a tour operator. There is unlikely to be such a contractual arrangement in the majority of cases brought under clauses 22 and 23 and, in any case, the Bill, by referring at several points to damage or distress, makes it clear that the two concepts are to be regarded as separate.
I understand that the amendment does not go as far as many hon. Members would like, but half a loaf is better than no bread. This is the amendment before the House. Considerable thought was given to it before it was tabled. I am afraid that, at this late stage of the Bill, it is a case of taking or leaving it.
§ Mr. Kilroy-SilkThe hon. Member for Oxford, East (Mr. Norris) was right and I was wrong. I, therefore, take 229 back 50 per cent. of my welcome for the amendment. Nevertheless, it is a welcome amendment. It provides compensation for distress even if the distress has to be coupled with damage.
§ Amendment agreed to.