Grand Committee

Wednesday 25th July 2012 Grand Committee

Wednesday, 25 July 2012.

[The Deputy Chairman of Committees (Lord Haskel)]

My Lords, if there is a Division in the House during the debate on the Financial Services Bill, this Committee will adjourn for 10 minutes when the Division Bell rings.

Future of Investigative Journalism: Communications Committee Report

Wednesday 25th July 2012 Grand Committee

Motion to Take Note

Moved by

[Lord Inglewood]

That the Grand Committee takes note of the report of the Communications Committee, The Future of Investigative Journalism (3rd Report, Session 2010-12, HL Paper 256).

[Lord Inglewood]

My Lords, before making my remarks to the Committee, I should explain that I am non-executive chairman of the CN Group, in which I have 1,740 shares, which I am told are worth approximately £6,000. The background for this report and today’s debate is quite simply what we described in our report as,

“the greatest political media scandal of a generation”.

As the weeks and months have passed, the steady drip of revelations from Lord Justice Leveson’s inquiry into the culture, practice and ethics of the press have shocked even the most seasoned observers, and I am sure that Members contributing today will wish to say a word or two about the direction of Lord Justice Leveson’s inquiry—what we have learnt and how we might mould the future. Certainly, the continuing general relevance of this topic is clearly illustrated by the headlines in today’s newspapers.

Before I set out the main findings of the committee’s report, I should say that I fully understand that it will be difficult for the Minister to say a great deal today. We are all awaiting Lord Justice Leveson’s findings, and the committee, I believe entirely sensibly, agreed with the Department for Culture, Media and Sport earlier in the year that any formal government response to our report, prior to Lord Justice Leveson reporting, would be premature. As such, we are in something of a limbo, a “phoney war”, before he reports. The Government, but also Parliament, the media and the public, can reflect on how his findings might be taken forward. Depending on what emerges, we might carry out a short report on Lord Justice Leveson’s findings and/or the Government’s response.

I should also like to say how pleased I am that the noble Lord, Lord Macdonald of Tradeston, is set to speak today. He left the committee at the end of the last Session, but he was a real stalwart and I know that his contribution was greatly valued by all members. I am glad, as I am sure we all are, that he can participate today, and we very much look forward to what he has to tell us.

When we launched our inquiry into investigative journalism last July, the phone-hacking scandal had already led to the closure of Britain’s best selling tabloid newspaper—the News of the World—as well as the resignation of former newspaper editors, senior members of the Metropolitan Police and others. The atmosphere was, as your Lordships will recall, febrile to say the least, with opprobrium being heaped on the media from all sides. There seemed to be no end to the revelations and public revulsion. It is notable, however, although it is often forgotten, that it was the media themselves—Nick Davies from the Guardian—who broke the phone hacking scandal.

The genesis of the report that we are discussing today emerged from my musings when having a bath at home one Saturday evening. It suddenly dawned on me that the committee had to engage with the extraordinary events that were unfolding in front of us. We had been set to launch an inquiry into broadband, which we have subsequently taken up and will report on very soon. But in my Eureka moment, I felt that we had to rethink and enter the prevailing, turbulent debate about the role of the press: in our case, specifically the role of investigative journalism. I am very glad that we did because, while I am sure that Select Committees should not necessarily chase every supposed new revelation, on this occasion I am absolutely sure that we were right to do so.

We began with the belief that investigative journalism is vital for a healthy democracy. It acts as watchdog, holding those in positions of power and authority to account by exposing wrongdoing, hypocrisy and corruption; standing up for the public interest; and, on occasion, campaigning for reform. Its contribution to democracy is just as valuable at a local level as at a national one: it is to hold individuals and institutions to account; to ensure that their work is visible to the people whom they serve; and to keep people informed about what is happening in their local town halls, schools, hospitals or businesses. In essence, investigative journalism allows people to find out what is actually going on, rather than relying on the establishment to say what they want us to think is happening. It is the oil in the engine of a free and open society.

Our basic proposition was that, while illegal activity is obviously to be deplored and should be punished appropriately, high-quality investigative journalism really matters, and that it was also of overriding importance that the current scandal, and the understandable outrage that it provoked, did not lead to hasty policy responses that might permanently damage the place of investigative journalism in our country’s governance. Investigative journalism’s history of exposing issues that are not in the public domain, and speaking truth to power, needed to be guarded and supported, not jettisoned amidst the rubble of the phone hacking scandal.

Our report did not set out to propose possible solutions to the plethora of questions that bubbled up last summer and which are still on the boil. They are often complex and profound, and surround the public interest, privacy and media ethics. Many were then, and still are, being considered in other fora, most notably Lord Justice Leveson’s inquiry. Instead, our report sought to explore the specific media landscape in which investigative journalism operates. We argued that, fundamentally, any change should not be rooted in the past but should seek to enable responsible investigative journalism to flourish in the future.

The key is that responsible—and I stress “responsible” —high-quality investigative journalism is of paramount importance in any democracy worth its salt. It is a vital constituent of the UK’s system of democratic governance and accountability. At its best, it informs and educates us, enhancing our democracy immeasurably. One only has to look at the types of countries and regimes where it is difficult for journalists to operate freely to realise that we must not take it for granted and that any erosion of a free and responsible press should make us all very nervous. After all, we all know that a clamp-down on journalists is so often the first response of an authoritarian regime or a deluded crazed dictator.

It became clear during our inquiry that rapid economic, technological and behavioural change was creating profound economic, legal and regulatory challenges for investigative journalism and how it might be carried out in the future. Furthermore, it emerged that, even before the current scandal started to unfold, the economic climate was threatening original journalism. There was declining newspaper readership, fragmenting television audiences and the migration of printed advertising to online—all exacerbated by the impact of the worst economic recession since the war. As a result, some local newspapers, as your Lordships will know, have been forced to close and many journalists have lost their jobs. That happened long before the closure of the News of the World.

I do not wish to take up your Lordships’ time with an account of all the lines of inquiry that we pursued and all the recommendations that we made. However, I will draw out what I believe to be the most important. These mainly gather around the delicate and sensitive issue of whether it is ever acceptable for journalists to break the law if they believe that exposing a story will benefit the public good. In other words, we considered the vexed issue of “public interest”. When one starts to consider the public interest, it is quickly apparent that little is entirely black and white. It is more a case of 50 shades of grey—if your Lordships will excuse that particular reference.

The concept of public interest, which in British law is used to effect the balance between Article 8 and Article 10 of the European Convention on Human Rights, is at the heart of the issues that we considered. The right honourable Jeremy Hunt MP, the Secretary of State for Culture, the Olympics, Media and Sport, hit the nub of this when he told the committee:

“No journalist is or should ever be above the law, just as no Parliamentarian is or should ever be above the law, but journalists do have a public interest defence”.

He obviously used those words in a layman’s sense.

We learnt that in fact journalists sometimes do just that; they break the law, even though no one argued that any journalist is above it. On occasion they may do so by pruriently hacking into celebrities’ voicemail messages, while on other occasions they may do so with a higher purpose in order to investigate a particular important issue. We heard from witnesses about where and how this might occur, and to what degree. Editors candidly told us that there are occasions when the law is broken because journalists break the rules. We heard, for instance, about the use of illegal methods such as subterfuge or secret filming in order to uncover information for investigations. After hearing the evidence, we concluded that the important practical as opposed to ethical issues to be taken into account by journalists and editors when considering whether to use potentially illegal methods in order to obtain information which they believe to be in the public interest are, first, whether a decision to prosecute would be taken and, secondly, whether a jury would convict if it were.

Considering and determining these issues during the course of an investigation inevitably falls to the journalist and the journalist’s editor, so ultimately the buck stops with them. This is right. Media organisations themselves should and must take responsibility for their decisions on how to investigate and whether to publish a story. However, crucially, in coming to such decisions, it is important that journalists and editors do so in a way that is rigorously structured and that leaves an audit trail for future external scrutiny.

While that conclusion may sound straightforward on the face of it, in real life it can be anything but, so we presented a number of recommendations with the potential, we believe, to make this process significantly clearer and simpler than it is at present. We recommended that media organisations should implement a two-stage internal management process whereby they track and formally record, first, their decisions to investigate and, secondly, whether to publish a story if it actually involves breaches of the law or the Editors’ Code of Practice as justified by the arguments of public interest. We also recommended that regulators should in turn take such an audit trail into account when evaluating the responsibility or otherwise with which investigative journalism has been undertaken. The regulator should also take into account the actions taken ex post facto in considering what penalty is appropriate for any actual breach.

On the critical issue of what the public interest might be, we discovered that investigative journalism is suffering as a result of inconsistencies and lack of clarity in the law. An example of this was highlighted by the evidence of representatives of the Index on Censorship, who told us that:

“Potentially, The Daily Telegraph could have run a public interest defence if prosecuted under the Data Protection Act for leaking MPs expenses claims—but not if it were prosecuted under the Official Secrets Act. This is clearly an anomaly”.

I might go further and say that, frankly, it is absurd. We therefore, without proposing a formal statutory defence relating to the public interest either generally or in other specific statutes, made recommendations that sought to provide clarity in a slightly different way on the complex and sensitive issues surrounding this matter.

As I have just mentioned, we did not actually recommend that all relevant criminal law be redrafted in order to iron out inconsistencies between different pieces of legislation. We did, however, urge the prosecuting authorities to publish their broad approach to determining which cases should be prosecuted or not where illegal activity undertaken by journalists in the course of an investigation might be considered to be in the public interest. We were therefore very pleased when it emerged —just before we reported, as it happens—that quite independently of us, the Director of Public Prosecutions was broadly persuaded of this approach and is already taking it forward.

We argued that the public interest should be characterised by reference to good and responsible behaviour, not least as defined by the relevant regulatory codes of practice, which contain examples of what could constitute a sufficient public interest justification for breaching a rule or regulation. In this regard, we very much welcome the changes made last December to the Editors’ Code of Practice, which required that to argue a public interest exemption to breaching a certain section of the code, an editor must not only show that he or she and the journalists involved had good reason to believe that the public interest would be served in doing so, but show how and with whom that was established at the time.

We also discovered that investigative journalism is suffering from a lack of proper investment and organisational support. To offer some respite from the financial crisis across much of the media, we suggested the creation of an investigative journalism fund. Any fines that are levied for the transgression of journalistic codes of conduct, including fines that might be introduced under a new system of press self-regulation and a proportion of fines issued for breaches of the Ofcom code, should be allocated to this fund, which might be used for investigative journalism itself or for training investigative journalists.

We were also encouraged by the number of new funding and organisational initiatives that have started to materialise as alternative means of promoting investigative journalism. In particular, we agreed that it is vital that measures that are taken to support and foster further initiatives are independent of public subsidies or state support. Charitable status has been suggested as one route to encouraging philanthropic investment in this area, and we therefore recommended that the Government give further thought to this and to possible legislative change in this area. Furthermore, given the vital contribution of investigative journalism to the well-being of democracy, we also asked the Charity Commission to provide greater clarity in this area and to take into consideration the current pressures on investigative journalism, as well as its democratic importance, when interpreting the relevant legislation.

While we recognise the enormous economic pressures on traditional media, we urged them not to vacate the vital area of journalism training. We see some of the new media initiatives as opportunities for training in the skills of investigative journalism, and recognise the invaluable training opportunities provided by the mainstream broadcasters and university departments.

In conclusion, we were well aware that analysis of the media was and still is a very crowded field, but we hope that our examination of the media landscape and investigative journalism’s place in it will help to inform the current debate and assist in influencing any regulatory or legislative reforms that may be forthcoming. I look forward to today’s contributions and to debating these matters again in the future, which the committee sees as part of its core work of assisting the House in this important area of policy, technology and the economy. Looking forward, implementing Lord Justice Leveson’s findings will be of fundamental importance; I sincerely hope and expect that Parliament will be given a clear opportunity to have its say. I look forward to the debate and the Minister’s response although, as I said at the outset, I appreciate that she is on something of a sticky wicket this afternoon. After events at the Oval earlier this week, perhaps I ought to say that she is bowling on a flat one. Finally, I thank our specialist adviser, Steven Barnett, for his enthusiasm and expertise, and record our thanks to Anna Murphy and Emily Davidson, our clerk and policy analyst respectively, both of whom have since moved on to other activities. I beg to move.

12:18

[Lord Macdonald of Tradeston]

My Lords, this inquiry was my last as a member of the Select Committee on Communications, and I congratulate the noble Lord, Lord Inglewood, on his adroit chairmanship of our exploration of possible futures for investigative journalism and on stopping our straying too often into matters that are probably best left to Lord Justice Leveson for now.

As I know from personal experience in both newspapers and television, investigative journalism can be time-consuming and expensive work, involving digging for concealed information, proofing allegations against legal challenge and then persuading risk-averse proprietors or regulators to publish or broadcast your findings. However, despite many wrangles over the years with the independent broadcasting authorities, my professional experience was largely positive. When hidden cameras had to be used, conversations recorded or some subterfuge employed, the regulators of ITV and Channel 4 would discuss the programme in depth, sometimes demand to view it in advance, and then almost always approve transmission as being in the public interest.

Our committee’s earlier inquiry into the governance of the BBC confirmed a similar approach and a shared belief across public service broadcasting in the importance of serious, revelatory journalism. A positive aspect of this inquiry was the continuing support for investigative series promised by the BBC and Channel 4, with ITV also looking again to strengthen its once formidable current affairs output. Our committee recommended that this commitment by public service broadcasters should be underpinned by Ofcom amending its guidance to include investigative journalism in its definition of the current affairs category. In its formal response, Ofcom acknowledged that encouraging investigative journalism in its quota requirements could be beneficial, and promised to consider our recommendation when its guidance is next updated. I hope that the evidence emerging from the Leveson inquiry will persuade Ofcom to act.

Our optimism about the future of investigative reporting on television was based on the relatively robust state of public service broadcasting. The BBC seems confident that it can maintain standards despite a freeze on its licence revenue. Viewing levels across television are holding up surprisingly well. The mass audiences of mainstream television are still more attractive to big advertisers than fragmented online options.

By contrast, however, the internet has drained classified advertising from newspapers. Traditional business models are being undermined, with editorial budgets slashed and journalists sacked. It is a pretty vicious downward spiral. Investigative journalism is always vulnerable because it is expensive. We heard in evidence that managements were increasingly concerned that controversial stories meant legal threats and unaffordable costs. As the noble Lord, Lord Inglewood, has said, our committee concluded that such risks might be reduced if a legal defence of publishing in the public interest were made clearer and more consistent. Like the noble Lord, Lord Inglewood, I therefore applaud the Director of Public Prosecutions for recently clarifying the more nuanced approaches his staff will now take in such cases. Additionally, our report welcomes the Government’s new Defamation Bill to make our libel laws less expensive and inhibiting. I also look to the Government to strengthen the protection that journalists can offer their sources—and whistleblowers, who often risk their careers in serving what they judge to be in the public interest.

The profound impact of the internet on traditional forms of publishing and broadcasting has yet to be fully understood. The damage already done to our press makes informed public debate of important social issue less likely and threatens a vital element of the UK’s system of democratic governance and accountability. However, in the specific area of investigative journalism, the new technologies are hugely helpful. At the press of a button, search engines offer information of extraordinary detail and scale. The quantity of information now in the public domain has created new specialisms such as data mining, which allow journalists to track trends, flag up problems and identify patterns of good and bad practice across society.

The Secretary of State for Culture, Media and Sport, Jeremy Hunt, assured us that the Government are committed to an open data agenda whereby public bodies make available online huge amounts of statistical information. Mr Hunt, in evidence to our committee, said:

“If we unleash citizen journalists on vast swathes of government data we are opening up big, big opportunities both to hold Government to account and also to learn things about our society that we never knew before”.

I take this rare opportunity to agree wholeheartedly with Mr Hunt. The growth of social media and the explosion of blogging show the astonishing potential for citizen journalism—a phenomenon that may soon see us looking back rather bemusedly to when the practice of investigative journalism was concentrated in a handful of small teams scattered across the higher peaks of British media.

Our committee welcomes the innovative use of social media by journalists in connecting with people around the world to access and disseminate information in utterly different ways. The so-called “crowd sourcing” of stories and visual evidence also has great potential. These novel forms of journalism will, of course, require training in new skills. We therefore applaud the important role played by universities in training journalists.

The urgent search continues for viable business models that will allow the best of traditional media to survive the disruptions of the digital age. National newspapers are testing online business models, erecting pay walls to collect subscriptions or offering free access to sell more eyeballs to online advertisers—as yet with modest results. Meanwhile, circulations and advertising revenues continue to decline and more titles are lost.

To date, more American newspapers have been harder hit than the national press here in the UK. However, philanthropy is a social force in the United States, and wealthy foundations are funding a number of projects to encourage the growth of investigative journalism online. We should monitor these pro-bono projects to see which, if any, can be transplanted to the UK. In Britain, charitable support is harder to find, but donors have helped the Bureau of Investigative Journalism do good work in its short life. The bureau is also earning income by working with newspapers and broadcasters on big stories. I suggest that this kind of co-operation could be extended to involve journalism students in universities. Young people are still surprisingly keen on careers in the media, despite its uncertain future. Perhaps they sense that a new order is emerging.

Sadly, our report found little solid evidence of viable business models evolving to support investigative journalism on any serious corporate scale. However, we are still in the early explorative stages of the digital revolution. I am optimistic that people in ever greater numbers will feel compelled to share information or opinion that they deem to be important with ever-wider audiences. Micropayments on an international scale may float or reward specific projects. Self-publishing is already transforming book publishing, and some of those books are in-depth investigations. Similarly, online ways of funding serious journalism will surely evolve. After all, who could have predicted that the original Private Eye, with its stapled yellow pages, could combine jokes and gossip with outstanding investigative journalism and still be thriving 50 years on? I suspect that the internet is already producing equally unorthodox online initiatives, and I hope that in some small way this report will help more to emerge.

Perhaps I am overoptimistic, but I believe that the emerging force of citizen journalists, with the power of new technologies and the potential of the global internet audience, will produce revelatory stories of a range and frequency that the traditional media, even in its prime, could never achieve. I invite the Minister to endorse at least some of the eminently sensible recommendations of your Lordships’ Committee on Communications.

12:27

[Lord Stoneham of Droxford]

My Lords, I declare my interests as a member of the News International and Johnston Press pension schemes. I congratulate the noble Lord, Lord Inglewood, and the committee on their report, which is timely and authoritative. I welcome the opportunity for this debate. I also feel honoured to follow the noble Lord, Lord Macdonald. We spent a month together at the London Business School learning about strategic management. The one press story that I remember from the time was the release of Nelson Mandela, so it was a long time ago.

The noble Lord, Lord Inglewood, chairs a local newspaper group, Cumbrian Newspapers, which is highly respected in the industry. It remains under the stewardship of the Burgess family, with its strong commitment to its communities and a long-standing commitment to well resourced journalism. I had the privilege to work for two family-dominated companies. Although one of them is now being treated like Marshal Pétain in France after the Second World War—you cannot find anyone who ever supported him—it is my view that family companies provided an ideal model for ownership of the press. They understood their reciprocal businesses. They respected the need for flair and professionalism in creative businesses. They invested heavily in editorial resources because they believed in strong products above all else. They worried constantly about their business and planned long-term, often for the next generation, and resisted the short-term mentality of the City investors.

Sadly, too few family companies remain, but it is no surprise that the strongest companies in the national newspaper world belonged to the Rothermere and Murdoch families. In the regional press, family companies have disappeared almost totally from the daily market, with the exception of the Burgesses and the Colman and Copemen families in Norwich. Their families are now more involved in weekly newspaper companies, and they may well yet emerge with a stronger future than the daily market for the regional press. That will be surprising, but no surprise to me.

Rupert Murdoch may have no friends currently, but in the past 40 years, in my view, he called all the right strategic shots in the media sector until he underestimated the reputational damage of his executives becoming too headstrong with their excessive power so that they thought that they were untouchable. In the report that we are discussing today, I welcome the commitment to investigative journalism, although we should be as much concerned for those local investigations into council fraud, consumer fraud, criminal activity and standards of care in hospitals and care homes as I would be concerned with the more dramatic national events such as the Watergate-style investigations of MPs expenses and hacking inquiries into the national press.

National press and broadcasters are always better funded than the local press, but the local press touches people’s lives directly. I broadly support what the report says on the need for better regulation and governance in the sector. We need to support sources and whistleblowers and to improve our libel laws if investigative journalism is not to be unnecessarily constrained. It is essential that the reputation of the industry is safeguarded and enhanced. However, I question the report’s recommendation that the Government should recognise the financial problems facing newspapers and should think creatively about tax breaks or other financial incentives that help them through this difficult transitional stage. I cannot believe that the public or a free press would really welcome that.

I am also sceptical as to whether an investment fund for investigative journalism could make a significant impact on funding investigations—there would be huge problems with administering such a fund—although a fund to encourage more training and improve the diversity of journalists has my support. I place more credence on that approach.

I will concentrate in my speech today on two aspects that are important to the future of investigative journalism. One of them the report slightly overlooked; it is mentioned, but I think that it is fundamental to the debate today: the business model and economic viability of newspapers. I will also say a little about the improved regulation of journalistic standards in the light of this. Newspapers are cyclical businesses. They are consumer products, dependent on advertising revenues, which closely follow the progress of the economy, as the noble Lord, Lord Macdonald, was saying. I have never forgotten going down to Portsmouth after that course at the London Business School to run the Portsmouth News Group. As the economy declined in the property-led recession at that time, I lost 50% of my profit in the first six months of my tenure and 50% of what remained in the second six months—a lesson I never forgot. As Tony Pidgley, who runs Berkeley Homes, says—house building is another very cyclical business—you should always make sure that you have enough cash for a disaster that may last for two or three years. In the media sector, it does.

Sadly, in the boom years of the 1990s, and until 2007, many publishers forgot that they were overgeared, overpaid for their purchases and never prepared for the merry-go-round to stop. Two of the four major regional publishers are now mired in debt and pension liabilities that are going to drain those businesses of resources when they most need it.

In the national press, only one quality newspaper is making money. The Telegraph makes between £40 million and £50 million on a turnover of £331 million. The Times is publicly losing £40 million to £60 million—maybe even more if the overheads were allocated differently. We know that the Guardian is losing £40 million, but it is supported by the assets of the Scott Trust. We do not really know about the Independent, but I imagine that its losses are significant. Tabloids are more profitable, given their circulation revenue, but Trinity Mirror has severe problems over its pension liabilities and gearing. Some of this is cyclical, but it is compounded by serious long-term threats to advertising and circulation revenues.

The noble Lord, Lord Macdonald, mentioned that the internet is taking over whole waves of classified advertising, but it is more serious even than he said. In time, no one will advertise second-hand cars in newspapers. Anyone who has used that medium will know that you spend your time ringing up cars’ owners to find that the cars have already been sold. The internet provides a responsive medium that is live, tells you instantly whether the car is available or already sold, and can provide film and information in much more detail than a paper product ever could.

Job advertising is the real measure of whether a monopoly exists. The rate for job advertising is the real measure of market power in a sector. It is the most expensive and profitable source of revenue and it has been dissipated by the cyclical downturn. I used to be responsible for printing the Sunday Times and my weekly nightmare was printing its jobs supplement. It was worth £2 million of revenue and ran to 30 or 40 pages in the boom. If you look at it today, it struggles to get four pages of advertising and is probably worth around £200,000. Most information on jobs is now found via the internet and submitted via the internet. Press advertising will never come back in such volumes as it had in the past.

There have been huge drops in circulation and readership. I was frightened to compare figures this week. The Guardian now sells 180,000 copies and the Independent sells 92,000. The Daily Telegraph sells 520,000 but its sales have halved in a decade. They are frightening figures and this year’s declines are of more than 10% for most of these titles.

Twenty years ago I went to the USA to study the future of newspapers. That was before the internet took off. However, the industry was already eyeing the concept of a convenient tablet. It has taken 18 years to get there, but in the iPad it has found something that has all the qualities of a newspaper but is better. It is portable, it can convey information as never before, it can customise its product and it is immediate, which a newspaper no longer is. To take our own example, although we are not allowed to read newspapers in the Chamber, we all refer to our iPads and smartphones. The problem is that the business model for newspapers through this medium is not yet proven. This is fundamental to the future of investigative journalism.

Advertising alone cannot sustain publishing. It needs a cover price or subscription to balance the product. Although vast investment in the industry has just been made, there are huge savings to be made on printing facilities, paper, transport and retail-wholesale margins if you eliminate the paper product. Stuck in the middle of all this is another key issue: the best websites for news are all currently free.

There are dangers in the Government intervening to subsidise the transition. This is a most difficult phase and it is where we need to concentrate all our creative thinking. The majority of newspaper readers are almost certainly retired. Increased longevity will prolong the life of paper products until those giving up newspapers because they can no longer read them realise that they can increase the print size on a screen and adapt to the electronic medium. That will give them a bit more life. These are the real issues when we look at the problems for investigative journalism and how we finance it.

I will say a little bit about regulation. I strongly support and congratulate the noble Lord, Lord Hunt, on the work he has been doing. I am delighted to see him with us today, although I understand why he is not speaking on this subject. It is fundamentally important. The work of the Press Complaints Commission, particularly on handling complaints and advising the public, is completely underestimated. Most of what we need is in the Editors’ Code of Practice, which has been developed over a number of years.

Of course, the Press Complaints Commission needs wider powers to ensure governance and compliance for the industry. It needs to have greater powers of enforcement and a system of fines. It needs the reality of independence from serving editors while retaining their commitment to the code. But we do not want to overlegalise the system so that it slows up and the costs and complexity become a barrier to the public using it. The case of employment tribunals should be a warning to us all.

However, there are two unresolved problems, and I am not sure that the report that we are discussing today manages to address them. How do you make sure that everyone is included in the proposed contracts we now have before us? It is not just Express Newspapers that is outside; it is all the other growing sources of publications we are going to have over the internet. They need to have some form of financial incentive or disincentive to make sure that they join up and are part of the system. As the noble Lord, Lord Macdonald, so wisely said, as publishing continues to accelerate on the internet, on blogs and social media, how do you ensure fair play with the traditional media and give protection to the public on regulation matters?

There are two great challenges to investigative journalism in the future. How can the business model for publishing respond to the technological and market pressures that in my view are now inevitable and coming much quicker than we think, and which are not transitory or temporary? There will be lower profitability during the transition, but I am not convinced that the state should get involved in subsidising the industry. Improved regulation must not concentrate on simply the traditional publishing model and publications; it has to absorb the new mediums at work if it is to win back public confidence and not further weaken the traditional press.

12:41

[Baroness O’Neill of Bengarve]

My Lords, we are all indebted to the noble Lord, Lord Inglewood, and his colleagues for a very interesting and timely report into the future of investigative journalism. A great deal of the value of the report lies in its detailed attention to the wider landscape, in particular the economic landscape, in which investigative journalism takes place—or does not take place. As the report makes clear, and as other noble Lords have already stressed, the transformations produced by new technologies and new media, by dwindling print advertising and shrinking revenues, and by the meteoric growth of a public relations industry with aims that are not well aligned with those of journalism, place particular pressure on what is unavoidably one of the more expensive but also more significant sorts of journalism.

The report shrinks from any definition of investigative journalism, which is the question I want to address today. Clearly the committee heard a variety of opinions on what it is, ranging all the way to the view that any form of journalism that investigates something or other is thereby investigative journalism. I believe that the latter view would spread the net too wide and leave us without any grasp of the distinctive and valuable features of investigative journalism or why it is important to protect it.

If a reporter summarises a debate at a meeting of a local council—or, for that matter, in your Lordships’ House—that is indeed valuable reporting, but it is reporting on matters that are not difficult to find out. Such reporting is an honourable activity, but it cannot really count as investigative journalism. What it adds for the public is convenient access, but it is not really a matter of investigation.

We tend to keep the term “investigative journalism” for work that penetrates more deeply; that draws on sources that are not, or not wholly, public; that informs readers, listeners and viewers in ways that are not merely accurate but that would have been hard to discover by other means; and that aims not merely at accuracy but specifically at accuracy about matters that the public have an interest in knowing about.

Investigative journalism, I suggest, is a specific sort of journalism. Indeed, it should count as a luxury brand within journalism. As others have said, it costs more to produce than many other sorts of journalism. It is more difficult and it attracts more attention. The distinctive features of investigative journalism are reflected in some of the most widely made claims about its importance. Investigative journalists, it is said, seek to speak truth to power—or at least sometimes; to let light in when some, including some who are powerful would prefer secrecy; and to expose misdeeds and corruption. That might be a somewhat romantic version of these matters, but it is the sort of thing we often hear.

A standard and much cultivated image of the investigative journalist sees him or her as courting danger, as an intrepid but secretive sleuth, as taking risks yet protecting informants in the face of the malign demands of power and authority. Luxury brands usually need special protection since they offer great temptations to counterfeiters, who serve up mislabelled and inferior goods, passing them off as examples of the coveted brand. We can all think of handbags that are allegedly handmade by prestigious Italian manufacturers that, surprise surprise, are available for a song in the back streets of many cities. We all take pleasure in the surprisingly overt trade in fake diplomas, degrees and qualifications that can be found online; it is hardly hidden. There are many other cases of mislabelling and mis-selling prestigious coveted brands, and we should learn from that reality.

The same difficulties arise with investigative journalism. We cannot afford to be too generous about its definition if we are to devise structures that enable and protect the genuine article without providing protection for the fake article, thereby ultimately destroying the brand value of the genuine article. By this I do not mean that we should aspire to find a tight definition of investigative journalism, and I agree with the recommendation of the report for a definition that sets out the complete, necessary and sufficient conditions for anything to count as investigate journalism, although I am sure that there will always be borderline cases.

However, there are at least three conditions for anything to count as investigative journalism that should be recognised in our debates. The first is that a piece of writing or a programme does not count as investigative journalism if it does not even aim to report accurately. Secondly, something does not count as investigative journalism if it aims to report accurately but the matters on which it reports are in any case in the public domain. Thirdly, something does not count as investigative journalism even if it aims to report accurately matters that are not in the public domain but coverage of those matters is not in the public interest. That, of course, is a topic to which the report devotes considerable attention and makes interesting proposals.

No doubt other noble Lords will say more about conceptions of the public interest, so I shall not say anything about it today. It is important to look at how we can give regulatory or legal protection to that specific and valuable form of public interest journalism that is genuine. Rather, I am going to talk about some of the other standards that investigative journalism needs to meet if it is to be the genuine article. A great deal of media content does not even aim to report accurately because it is not aimed at matters of fact; it is not aimed at the truth. It is overtly and quite properly concerned with comment or culture, with entertainment or fantasy. We do not fault the horoscopes because they are inaccurate; indeed, let us be honest about it, they are invented. However, everyone understands that that is what they are.

A great deal of media content does not even aim to report what is the case; a fortiori it is not about speaking truth to power. That is why it is a great mistake to base arguments for press freedom on considerations about the importance of investigative journalism. There are a number of arguments for press freedom. However, those who try to link it too closely to claims about the importance of investigative journalism aim too low. They seek a justification that will ignore freedom for much that has a proper place in media content. Therefore, we should not link arguments for investigative journalism too closely to our basic arguments for media freedom.

Investigative journalism is distinctive in seeking to report what is the case. However, as we know, it is not the only sort of journalism to do that. Much reporting aims at accuracy and there is no need to dignify all of it with the label “investigative journalism”. Again, an example is the summary of a parliamentary debate that is fully reported in Hansard. This is very useful but is not investigative journalism. Those who report based on a company or charity press release are not investigative journalists. Indeed, those who do not mention that their articles are merely an extract or rehash, or perhaps a repetition, of someone else’s PR work are very far from investigative journalists. They are misleading the public into thinking that this is an independent report, when it is in fact paid-for content—or, rather, content freely provided by interested parties.

This is why investigative journalism works by seeking not merely to report accurately but—and this may seem surprising—to be open about its sources where possible. A need to protect sources arises in some cases but always in the context of journalism that seeks to be evidence-based and to provide readers, listeners and viewers with such evidence as can be made available for the claims that are made. Sometimes we are mesmerised by the special reasons that can exist for protecting sources in some cases, and we forget that serious, good journalism is directed towards reporting what is the case. It works by providing readers, listeners and viewers with evidence when this can be done.

We both romanticise and demean investigative journalism if we view it simply and misleadingly as work that hides its sources. Investigative journalism is much more than that. On the contrary, the best investigative journalism achieves credibility by carefully providing evidence when this can be done without risk to sources and certain others. We have reached entirely the wrong position if we think that an automatic appeal to the need to protect sources is the hallmark of genuine investigative journalism. Instead, it is a special case that must be dealt with. It has credibility and importance only within journalism that respects the disciplines of truth seeking and generally provides for readers, listeners and viewers the evidence needed to assess what they read, hear and see wherever possible.

However, it is not always possible. In some cases, sources will be at risk if they are named. In other cases, evidence may only be secured by practices that breach conventions or laws. For example, seeking employment using bogus credentials or false names in order to discover what is happening in a nursing home. Here, the report of the Select Committee points in a plausible direction by suggesting that the defence offered in such cases could in part consist in providing a clear audit trail that could be used in litigation for breaches committed. That defence should not require demonstration that what was reported was true—we can only aim at but not guarantee the truth. However, it should require that journalism aims to discover the truth using the relevant, routine but demanding disciplines of truth seeking for the particular area and citing evidences and sources where this can be done without risk to sources and others. Journalism should rely on a public interest defence only where needed. The specificity of the defence creates its plausibility.

Other noble Lords have said more already about public interest defences. There will be more said today. I try to set investigative journalism in the wider context of seeking and communicating what is the case. This context is necessary if we are to see its specific importance and the importance of distinguishing it from counterfeits in which the alleged protection of sources is in fact used to hide from the public a lack of sources, or credible sources, and evidence—indeed, at its worst, to lie to the public.

The river of change is running very fast and there is a lot more technical change ahead. We are in a flowery spring, perhaps the 1968 of this transformation, in which we imagine that new possibilities will enhance citizen journalism and forget that they may also protect poison pens. In the next year, we shall have to test whether the draft regulation on data protection is fit for purpose in the new climate. I do not know whether it is and it will be very difficult to see whether that transformative approach to protecting personal privacy fits with the views that we reach about investigative journalism.

I understand very well why the Minister can make only a limited response today to the committee report because of the work still being undertaken by Lord Justice Leveson’s inquiry, but I hope that in the course of dealing with the vast range of legislation bearing on data—the EU draft directive, the Defamation Bill and others—your Lordships’ House will return to this report in the coming year and take its recommendations into careful consideration.

12:55

[The Lord Bishop of Norwich]

My Lords, it was a privilege to be a member of the Select Committee that produced the report that prompts our debate, and I learnt a great deal, not least from my fellow members. When the MPs’ expenses scandal was at its peak, I recall someone remarking that politicians had fallen even below journalists in the league table of public esteem. Since then, the phone hacking scandal has seemed to restore the customary pecking order, while bankers have contrived to plummet so far that they now seem in the relegation zone. I dare not speculate where bishops now lie in these hierarchies.

What is odd is that the British public has long had a lack of esteem for journalists, yet is the same British public that has shown great interest in reading what journalists write. Historically, newspapers have had a major influence on public opinion. Politicians of all parties would not have met newspaper editors and journalists quite so often if that was not so. The public seem to have a great appetite for celebrity exposés. The methods sometimes used have hardly always been models of fair scrutiny or investigation, yet there is a sound and ethical tradition of investigative journalism that has been well described in the report and to which the noble Baroness, Lady O’Neill, has referred. The public are right to feel justice has been done when authority figures and institutions are revealed to have done things which they would have preferred the general public not to know. Investigative journalists have helped to put injustices right when the courts or public authorities have not done so.

During this inquiry, the committee received plenty of evidence about the value of investigative journalism. Some people might still be in prison unjustly were it not for the ferret-like doggedness of journalists such as the late Paul Foot. Whether it is the Sunday Times Insight team—now drastically reduced, I am told—journalists working for “Panorama”, or a single journalist such as Nick Davies, sure that he is on to something with phone hacking and just will not let go, stories are uncovered and the body politic is healthier for it. Yet strangely in the UK such journalists are rarely honoured or become household names like Bob Woodward and Carl Bernstein in the United States in relation to Watergate. The British are great consumers of investigative journalism, but they, and we, have not done all that much to honour investigative journalists. We have rather taken them for granted, as if investigative journalism will always be there. Perhaps it will be.

Paragraph 240 of the report comments that while it is easy to paint a pessimistic picture of the economic problems facing investigative journalism—they have been well illustrated already—there was no evidence to suggest that investigative journalism would disappear. The Channel 4 investigative journalism training scheme is but one example of initiatives continuing to nurture this tradition. The number of courses on journalism in our universities has grown enormously, too. While some suggest that these have proliferated at a rate beyond the capacity of the industry to employ even its good graduates, journalists with a passion, even obsession, for investigation often find an outlet. Even so, a serious issue is emerging that should concern this House.

The most striking statistics in this report are to be found in table 1 on page 16 concerning national newspaper circulation over the past 10 years, to which the noble Lord, Lord Stoneham, has already referred. Total circulation has declined from 27 million in 2001 to less than 20 million last year. That is the loss of more than one-quarter of all sales in a single decade. It is accelerating. The past three years have seen declines in newspaper circulation of more than 1 million copies a year. The losses are felt profoundly in local and regional newspapers, which have had to cope with a massive reduction in advertising revenue, too. I should perhaps declare an interest as the Bishop of Norwich because the Eastern Daily Press in Norfolk still outsells every national title, which I think is unique in this country. I thank God for the fact that we get in a regional newspaper not just local news but Westminster and international news. However, we have heard about Port Talbot as an example of a substantial community now served by no significant local media. Elsewhere, an increasing number of council meetings go unreported, and there are courts where the press gallery is empty.

The fourth estate can fulfil its role only if it is present. The decline in local and regional newspapers has been partly offset by the still significant presence of BBC local radio, which has been reprieved from the worst cuts recently proposed, and which means that we still have some local media. But we also need partiality and passion as well as balance to ensure that those exercising power and authority are called to account. If in due course council decisions are reported only through the newspapers and magazines published by councils themselves, it is hard not to think that the consequences will be far from happy.

Even so, there does not have to be a physical presence at council meetings for investigative journalism into all the work that for example councils do, to flourish. It was intriguing in our evidence to listen to Clare Sambrook, an outstanding investigative journalist, referring to the amount of work she does online, drilling down through what seem like unpromising data. There is a vast amount of information online that is published in an undigested way and which needs careful analysis by someone with a hypothesis or two to test. A line from TS Eliot in his Choruses from the Rock is pertinent:

“Where is the wisdom we have lost in knowledge?

Where is the knowledge we have lost in information?”.

We are often misled into thinking that the transparency and publication of data leads inevitably to knowledge. It does not. It needs investigation and interpretation, and only when the knowledge is reflected upon and digested might wisdom come.

If there is a frustration about this report, it is that the committee has discovered no single solution to deal with the difficulties diagnosed. There are few quick wins in this area. Certainly, the proposals for audit trails and greater legal clarity and consistency in issues related to the public interest make good sense, as does the proposal that where a news organisation develops more than a 25% share of the market through organic growth, a public interest test should be applied just as it is in relation to proposed mergers now.

Perhaps the most hopeful element of this report, however, was the discovery that many news organisations remain committed to investigative journalism since they regard it as the cutting edge of journalism itself. It is what makes journalism worth while. That, alongside the very different ways of promoting investigative journalism, illustrated in the USA by ProPublica and here with the Bureau of Investigative Journalism, brings hope. It is clear that there exist funding streams that are neither strictly commercial nor use taxpayers’ money but that are essentially charitable. This has not been an area where UK philanthropy has needed to be operative in recent decades, because commercial and public finding models have worked, but there may be more potential there than has been imagined. Given the zero VAT rating on UK newspapers, it does not seem too much to ask the Charity Commission to clarify which activities related to investigative journalism might be charitable within the current state of the law.

The note sounded in this report is one of hopeful concern. Hope is an underrated virtue, but not here. I will forbear to preach a sermon on hope, noble Lords will be glad to hear, but the value of this report in relation to investigative journalism is that hope here should still outweigh anxiety.

13:05

[Lord Black of Brentwood]

My Lords, I declare an interest in this debate as executive director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I draw attention to my other media interests in the register.

There could not be a better time for this House to consider the future of investigative journalism on the back of this admirable report. Having heard about its genesis, that goes to prove the point that all the best thoughts occur in the bath. For over a year, journalism has been subject to an intense and often excruciating spotlight. Three police investigations, a judicial inquiry with sweeping legal powers and a number of extremely thorough Select and Joint Committee inquiries have all placed British newspapers and those who work for them under unparalleled scrutiny. The force of the law, whether through police investigation or the sweeping powers invested in the Leveson inquiry under the Inquiries Act 2005, has been felt in the newsrooms of every national newspaper—and, indeed, of some local newspapers. This has been a period of unprecedented pain in the long and proud history of the British press.

It is worth emphasising that no one would ever do anything other than condemn a breach of the law. Where crimes happen, in the press or in any other walk of life, they must be punished. We have seen in the events of the past day or so that justice does, indeed, take its course, but in looking at the future of the press, particularly investigative journalism, what is crucial now is a sense of perspective. Many of the inquiries have concentrated on a small number of journalists and on events that in the main date back many years. Some of the evidence at the Leveson inquiry related to incidents in the late 1980s. What has often been ignored during this period is the fact that the vast majority of journalists are decent, honourable, hard-working individuals who came into the business to serve the public interest and their local communities. I think in particular of the regional press, as the noble Lord, Lord Stoneham of Droxford, said; it is vital to the fabric of local democracy in this country, and its proud record of investigative journalism and civic engagement has often been overlooked in recent months.

That is why I strongly welcome this excellent report from the Communications Select Committee. My noble friend Lord Inglewood and all his colleagues are to be congratulated on it. It is a report that is solidly grounded in the real world and in the day to day practicalities of the industry. In eschewing headline-grabbing issues, it is full of common-sense practical ideas to ensure that investigative journalism has a future in this country. I am not going to talk about the training recommendations. I echo what noble Lords have said about training, which is often one of the first things to go when times are tough.

I do not want to dwell on what precisely investigative journalism is or why it is important. That is set out extremely well in the report. It is, as my noble friend said, to speak truth to power, whether that power be national or local, and to do so without fear or favour.

At the moment, investigative journalism is under threat from two different sources. First, as has been touched on a number of times in the debate, the industry is facing serious commercial difficulties as a result of profound and rapid structural change. Then there is the increasing burden of law, which is having a chilling impact on freedom of expression. I should like to look briefly at each in turn.

First, I shall look at the economics. Investigative journalism costs money, but money is in increasingly short supply. Chapter 2 of the report deals with these issues in a thorough and cogent fashion. This is an industry whose business model is crumbling. To survive, it has to find new revenues from digital operations, and the most innovative publishers are working extremely hard to do so. However, print revenues are declining more quickly than new income streams are growing. For some years there will therefore be a period of serious commercial dislocation within the industry, as indeed the most recent results from the Guardian Media Group, which recorded a pre-tax loss of £75.6 million for the last financial year, showed.

At his inquiry last week, Lord Justice Leveson described it as, “all rather depressing”. It is a lot more than depressing; it is deadly, because if newspapers cannot afford to invest in investigative journalism, no one else is going to do it—and that then puts democracy itself in jeopardy.

Personally, I am an optimist about the long-term future of the industry, because change and creativity is in its DNA. I believe that the best will adapt and flourish, but there will certainly be difficult times ahead before that happens. The report recommends that the Government should “think creatively” about ways in which they can,

“help the industry through this difficult transitional stage”.

There are a number of ways in which they can do that. First, they can seek to ensure that expensive and unnecessary regulatory burdens on the industry are kept to a minimum and, where possible, lifted. Let there be a bonfire of red tape. That would be of massive importance to the regional press in particular.

Secondly, particularly with regard to the local and regional press, the Government must move to ensure that consolidation can occur among local publishers without the impossible burden of Competition Commission inquiries. The report rightly refers to the recent shameful example of the closure of a number of local newspaper titles in Kent following a Competition Commission referral. If we are serious about seeking to safeguard the long-term health of our newspaper industry, these anachronistic takeover procedures must go. The report is absolutely right on that.

Thirdly, we should ensure that our copyright laws support investment in journalism rather than undermine it. In the absence of state subsidy—no one in the newspaper industry would want that—an independent press ultimately depends upon robust copyright laws for protection of its editorial content and as the foundation for any financial return on this investment. This is particularly important in the digital age. The noble Lord, Lord Macdonald, was absolutely right to point to the profound impact of digital technology. Nowhere is that impact set in sharper focus than in the whole question of the protection of content.

The UK’s copyright laws, and in particular the Copyright, Designs and Patents Act 1988, have allowed editors to edit, publishers to publish and media companies to innovate, in print and online, so that our content can always be available in whatever form, manner and media that our readers and customers want. It is vital that the bedrock protection of the 1988 Act cannot be chipped away through creation, amendment or removal of exemptions by secondary legislation, as Clause 57 of the Enterprise and Regulatory Reform Bill would allow, to the concern of the publishing industry, even if that were not the intention of the clause.

Nor should the law’s protection of publishers’ rights be eroded to allow others to exploit our news services and editorial content without permission, payment or punishment. Again, if we are serious about investigative journalism, we must be serious about copyright. I should be grateful to hear what the Minister can do to reassure the industry on that point.

Moving on from economics, an increasing burden of law is impacting on investigative journalism. In recent years, the Human Rights Act 1998 has handed to those with something to hide, and the resources to use the legislation, significant new powers with which to threaten newspapers. Then there is the Data Protection Act 1998, the terms of which are so wide that they encompass virtually all journalistic activity. There is also the Regulation of Investigatory Powers Act 2000, which was used to convict journalists accused of phone hacking back in 2005, and more recently the Bribery Act 2010. Taken together, all this legislation has a significant chilling effect on investigative journalism. In addition, we still have antiquated defamation laws, which underpin and magnify that effect.

On that last issue, the reform of our repressive libel laws, we can thankfully at last put a big tick in the box, as the noble Lord said. The Defamation Bill, which should reach this House in the autumn, goes a very long way to creating the new, robust and workable defences needed to protect investigative journalism in the digital age in the 21st century.

However, there is much more to be done. One of the most serious issues highlighted by the report is that a great deal of legislation impacting on the media has no public interest defence in it. The Regulation of Investigatory Powers Act has none; the Bribery Act has none; nor does the Official Secrets Act 1989 or the Computer Misuse Act 1990. The noble Lord, Lord Inglewood, touched on this issue. I readily appreciate that there is a limit to what can be done as so much statute is involved, but there are two practical areas where action can be taken.

First, I have no doubt that concerns about the application of the Data Protection Act continue to have a chilling impact on investigative journalism. The DPA is drawn extremely widely and touches on every part of the investigative process. There is currently a public interest defence for breaches of Section 55 of the Act, but it is not robust enough. As matters stand, a journalist could breach the terms of the Act in the course of an investigation because he or she believed that they were pursuing a story that turned out to have no basis. This happens because not every hunch or tip-off turns out to be accurate and therefore provide a story in the public interest.

The previous Government recognised that this was a weakness in the Act and amended it by adding an enhanced public interest defence to new Section 55(2) in Section 78 of the Criminal Justice and Immigration Act 2008. That defence is based on the fact that a journalist was acting in,

“the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”.

Such a defence could be a real boost to investigative journalism. It sits on the statute book but has never been brought into force. Given the weight of legislative burdens on the press, now would be a good time to do so.

The second area, which my noble friend has referred to, relates to the manner in which the prosecuting authorities operate, which is dealt with in paragraphs 86 to 88 of the report. As we have heard, since the report was published, the Director of Public Prosecutions has produced his interim guidelines for prosecutors on assessing the public interest in cases affecting the media. I strongly commend these guidelines. They will be a protection for good journalism and, rightly, a scourge on the bad.

The DPP is currently consulting on the guidelines, and I believe he has had a constructive response from across the industry. I hope that the guidance may be amended to include due regard for a journalist’s belief that his or her investigation served the potential public interest and that he or she was acting in compliance with a relevant regulatory code, as I believe this is right for professional standards within the industry. In any case, the DPP’s guidelines will go a substantial way to dealing with the paucity of public interest defences in legislation impacting on the press, which the report rightly highlighted.

Those are two practical and straightforward areas in which we could help the craft of investigative journalism. I would like to finish with a few words about the future of regulation, which is in many ways the elephant in the Moses Room.

First, noble Lords will be aware that I have been involved, with my noble friend Lord Hunt of Wirral, in putting together a proposal for a system of modern, robust, proactive and independently led self-regulation. Based on legally binding contracts, it will for the first time give a new regulator powers of enforcement, compliance and sanction, which the noble Lord, Lord Stoneham, was talking about earlier. Not only will this system provide real protection for the public from unwarranted intrusion, it will work to protect the public interest and investigative journalism. One of the ways it will do this is by ensuring that there is a real renewal of internal governance within newspapers themselves. This works with the grain of the excellent recommendations made by the committee on internal management issues.

Secondly, I have to warn noble Lords that the biggest threat imaginable to investigative journalism in this country will come from any form of regulation based, however slender in manner, in statute. To give a regulator a power in statute would be to give those under the scrutiny of the press some form of control over it. That would be the beginning of the end of investigative journalism. The single most important guarantor of the future of investigative journalism lies, I believe, in the maintenance of self-regulation, which is the only form of regulation that can protect what the Lord Chief Justice has rightly described as the “constitutional principle” of the independence and freedom of the press. That principle recognises that journalism is the exercise of a fundamental human right—that of free speech—which no regulated profession exercises. No other trade or profession has the responsibility of holding politicians and Governments to account, so limitations on journalists must therefore be self-imposed rather than imposed by those under its scrutiny.

While there are practical ways in which we can support investigative journalism, both by seeking to protect the commercial position of newspapers and by breaking down legal obstacles, as this commendable report sets out so clearly, this remains the single biggest issue which all those interested in and passionate about the future of a free press have to face.

13:21

[Lord St John of Bletso]

My Lords, I join in thanking the noble Lord, Lord Inglewood, for his able chairmanship of this fascinating and timely inquiry. Clearly, as all noble Lords have mentioned, there are not just major financial challenges facing the future of investigative journalism, but the challenge of expensive litigation. Therefore it is appropriate that this report is being considered ahead of the Defamation Bill, which will come to the House later in this Parliament. I am firmly of the belief that every effort has to be made to promote a sustainable future for this vital aspect of democratic governance and accountability in the United Kingdom.

While the National Union of Journalists believes that investigative journalism is still flourishing, there is no doubt that it is under threat against the backdrop of a decline in newspaper sales and advertising revenues. I cannot add any more to the strong and compelling arguments put forward by the noble Lord, Lord Stoneham, about the need to address the business model of the print media.

There are rays of hope for the future of investigative journalism with the rise of journalism bureaux, the active involvement of the campaign sector and a new generation of networked web-savvy journalists promoting the field. However, I find it particularly alarming that local and regional newspapers are closing down with up to 40% job losses in many local newspapers.

Our report recommends that a fund should be set up that would be used to promote both investigative journalism and the training of investigative journalists. While I agree that this is an excellent idea, I query the logistics and the viability of the implementation of such a fund. However, a lot more needs to be done to promote financial investment to support this form of journalism.

Clearly, some journalists and senior newspaper executives have behaved extremely badly and let the industry down. I do not need to elaborate on that. Reporters are under increasing pressure to come up with exclusive stories and news scoops. This has led many to believe that the balance of power has shifted too much from reporters to executives, who are dictating the news agenda. Even though regulations prevent excesses and codes of good practice, I am firmly opposed to more statutory regulation of newspapers. It is generally accepted that the present system of voluntary self-regulation, as administered by the Press Complaints Commission, is in need of reform and various suggested models have been put forward. I firmly support the recommendation of the noble Lord, Lord Hunt, who cannot speak today, for the establishment of a new regulatory body that would have real powers to investigate serious breaches by the press and set firm boundaries.

The noble Lord, Lord Inglewood, pointed out that investigative journalism is suffering from inconsistencies and a lack of clarity in the law. I shall not elaborate on the sensitive issues surrounding the definition of public interest, which has been fully covered. Some have suggested that newspaper editors should be subject to regular public hearings, which would provide greater transparency and accountability. I somehow doubt that this will happen. However, one of the key recommendations of our report was that media organisations should take responsibility for their actions when deciding how to investigate and whether to publish a story. We recommended implementing the two-stage internal management process. I firmly support these recommendations. Should journalists and editors do this in a regular and structured manner, this would certainly leave an audit trail for future external scrutiny.

Every effort must be made to promote responsible, high-quality investigative journalism. We need a good seed bed of high-quality questioning. However, we also need popular programmes where a broad profession of good journalism can be nurtured. Most of the speeches today have covered the printed media and the internet. “Panorama” programmes, which I will come to later, have not been covered so much. My noble friend Lady O’Neill made a strong case for investigative journalism to hide its sources. While I agree with much of what she said, investigative journalists should be offered some form of protection for their sources, particularly the whistleblowers.

As every speaker has mentioned today, there must be incentives to provide more journalism training. The demise of the local paper industry has meant that new recruits to the national newspapers are not doing apprenticeships in local papers. Universities play a very important role in training investigative journalists. In the report, we recommend that the Government should support these educational facilities in providing useful and practical training opportunities. It is certainly encouraging that charities and trusts are now taking the lead in funding many investigative inquiries. There was a call for more clarity with the Charities Commission. It is hoped that this model can be replicated more widely.

The new scrutiny of the media and possible regulation should not just apply to the press. The public relations industry should also be more tightly controlled and held to account, particularly if they publish something that is wrong or deliberately misleading. The big question in the future is whether people will turn to other forms of media that are not regulated. One example is Twitter, which has been taking the lead, particularly among younger people who simply do not buy newspapers. It is therefore essential that we do not regulate our free press out of business.

The noble Lord, Lord Macdonald, spoke of the digital revolution and the power of search engines. Given that by its nature investigative journalism is a public interest matter and covers subjects of passion and concern to those affected, these stories are now getting out on the web through the efforts of myriad semi-professionals and people in the know, and are becoming accessible in a way that could not have been imagined 10 or 15 years ago. However, while the use of social media has greatly assisted journalists in accessing content and information expeditiously and cost-effectively, it is important that the Press Complaints Commission tightens its guidance on ensuring that materials on the net are validated and their sources verified.

I was hoping to elaborate on the future of “Panorama”, but I shall just refer to paragraph 275 of the report, which deals with penalties for breaches. In considering sanctions that could be imposed on broadcasters, I notice that Ofcom’s response to our report states that it will consider imposing a sanction only against a broadcaster that,

“has seriously, deliberately, repeatedly, or recklessly breached a relevant requirement”.

I sincerely hope that more incentives can be given for more use of the media, particularly the broadcast media, in bringing investigative journalistic issues to the fore.

In conclusion, while hacking has put journalism under the spotlight and the business model of printed media has certainly come under increasing strain, investigative journalism is in the public interest and absolutely invaluable to our society, and every effort should be made to promote it.

13:30

[Lord Smith of Finsbury]

My Lords, I join all other noble Lords in this Grand Committee in giving a very warm welcome to this extremely valuable report from the Select Committee. I commend the noble Lord, Lord Inglewood, and his colleagues on a perceptive analysis of the issues and a range of rather interesting proposals, which could offer some beginnings of solutions.

The committee and today’s discussion began from first principles: that in our society, statutory control of the press is potentially seriously detrimental to democracy; that there is great public benefit from the free exercise of intelligent investigatory journalism; that investigative journalism can hold government, politics, business or journalism itself to account; that the widest range of robust opinion should be available to the public; but that there have been occasions, especially in the recent past, when the press, through sloppiness, intrusiveness, deliberate misrepresentation or illegal activity, falls far short of the standards to which it ought to aspire.

I add that this is not a regulatory issue. Some tabloid journalism in particular, although by no means all, has assisted a cheapening of public discourse and cultural awareness over many years. The balance between the importance of free expression and the unacceptable lengths to which the press sometimes goes is, and I suspect always will be, a central dilemma in policy-making in this area. However, in recent years, that balance between freedom and personal privacy has clearly not been right in some newspapers. Therefore, I have two proposals in light of the discussions that the committee has brought forward in this report.

The first is in relation to the public interest test on mergers, cross-media ownership and a glomeration of media power. At the local level, reflecting some of the points already made in the debate, I suggest that there is substantial scope for the further relaxation of controls. Local newspapers and radio are struggling for their very survival at the moment. Freeing up the ability to come together seems to be something that is much to be desired.

However, at the national level, I suggest that there could be automatic thresholds for referral to the Competition Commission or its successor. Whether 25%, as considered in the committee’s report, is the right threshold probably needs further discussion. However, referral should not in such circumstances rest in the discretion, however quasi judicial, of a Secretary of State. The committee’s proposal to give Ofcom a right to refer of its own initiative seems to be a rather good one as well.

The second area to consider is what kind of regulation for the day to day press stories and activities there should be. I believe fundamentally in the importance of self-regulation where policing is done by a non-statutory process, but it must be robustly conducted. In recent years, it has probably not been as robustly conducted as it should have been. I declare an interest as chairman of the Advertising Standards Authority. The ASA is a very good example of self-regulation that works—effectively, robustly and independently. It can also be more fleet of foot than a statutory process would be in responding to changes in the media advertising landscape. The recent extension of our powers in the digital arena is an obvious case in point.

One other important point to make, however, is that the ASA works because there is buy-in to its system and its activities from the entire advertising industry. The importance of getting buy-in from the entire newspaper industry to any self-regulatory process cannot be overestimated.

I therefore suggest four possible changes to the PCC and the way in which the self-regulatory process operates. The first is a clearer degree of independence for the PCC council. Having a number of serving editors sitting on the council is not perhaps the ideal way to enhance public confidence in the system. Secondly, there must be stronger sanctions. At the very least, there should be equal prominence for corrections to the original story and a system of fines.

Thirdly, there should be the regular and widespread reporting of the adjudications of the council, so that the public know a lot more about what it is doing. Fourthly—this is the difficult bit—I think there is scope for having a statutory backstop for the decisions that the PCC makes. This is not, I emphasise strongly, the Government making the decisions or adjudicating, or any government body or government-appointed body making the decisions and doing the adjudicating but giving the PCC a statutory authority to enable its self-regulatory decisions to be enforced. At the moment, the ASA is able to refer non-broadcast advertising transgressors in extremis to the Office of Fair Trading or, potentially, its successor. In the broadcast field, we can refer a broadcaster to Ofcom for consideration of its licence and franchise. Giving that ultimate power of statutory backstop would enhance the power of the PCC, or whatever body emerges from the current discussions.

I suspect that we will never achieve a perfect world in this field. The difficult balance between freedom and privacy will never be reconciled completely. However, measures can be taken that would make that balance better, and I hope that out of this debate, this excellent report and the current public discussions that are under way, such proposals may emerge.

13:39

[Baroness Deech]

My Lords, I welcome this chance to discuss the report of the Communications Committee, of which I have the privilege of being a member, serving under our able chairman, the noble Lord, Lord Inglewood.

Investigative journalism goes back to biblical times. Perhaps I might remind noble Lords in this Room that Moses sent 12 investigators on a 40-day mission into Canaan to report on the state of the land. Two of them, Caleb and Joshua, reported well of it; the other 10 did not. Reliance on a misleading majority report was one of the reasons why the Israelites spent 40 years wandering the desert.

Today we expect more accuracy. Investigative journalism is vital for holding the Government and others who have power over our lives to account, for shining a light on things that we ought to know but have not been disclosed, and for providing the material for the national debate that takes place every day and that enables every citizen to be included and informed.

There has been one significant change in our recent source of such journalism. The print newspapers are not as powerful as they were, nor as much of a threat as we have been led to believe; nor are they, arguably, any longer the main source of investigative journalism. The generation represented in your Lordships’ House, and the politicians, are in thrall to print journalism. However, Ofcom recently reported that 10% of the population say that they read fewer paper magazines, and 8% say that they read fewer newspapers. Long-term trends in radio listening are down: 22% of 15 to 24 year-olds listen less, and use other devices instead.

The young get their news from the internet and social media. Digital sources outstrip papers as a source of news for them, and increasingly for the rest of the population. Newspaper circulation has declined markedly in the last decade, as has been said, and therefore the revenue from advertising is less, although I lack a certain sympathy because job advertisements, as referred to by the noble Lord, Lord Stoneham, killed themselves off by exorbitant charges. The local press has suffered even more, and that is regrettable as traditionally it was a source of investigative journalism and training in that skill.

I am somewhat sceptical when it comes to believing that newspapers can persuade people to vote one way or the other. It is not clear to me whether the police and politicians are, allegedly, manipulating the journalists or the other way round. The Leveson inquiry and the facts that led to it might be the last gasp of an old order of reporting.

Does this mean that there is a grave danger that there will be no funding for investigative journalism? I think not. The philanthropic funding of investigative journalism is always going to be problematic and cannot substitute for publishers’ funding because it is impossible to dispel the perception that the funder would want his special interests investigated. Government funding would be equally suspect.

The internet, however, opens up new and more inexpensive possibilities of investigative journalism. It is worth noting that some of the most important investigative stories have come about in this age of recession and hard times for papers, such as MPs’ expenses and phone hacking. Therefore, the vigour of investigative journalism is not necessarily dependent on traditional funding. It has become cheaper because of the internet and the contribution of individuals online to the gathering of evidence. The internet is more efficient than library research, when libraries are under threat; freedom of information and social media give leads and official data to anyone who goes online. The risk with internet stories is that we need to distinguish truth from untruth and inaccuracies. Once they take hold in the digital world, untruth can be piled on untruth like Chinese whispers. The young need to be educated, more than ever, in critical analysis and the dangers of treating everything online as gospel truth.

The internet has no editors, no legal control. It crosses international boundaries and information on it has no kite mark. Some of it is fabrication, some is discriminatory, and there is no check. The young may be too trusting of Twitter and Facebook, too often taken in, and prey to those who betray their trust and privacy. This attitude may spill over into their trusting any facts online. School instruction in the use of computers ought to teach such awareness and discrimination just as much as software skills.

Because of the changes in the way we receive our news, the need to study convergence has become important. We need to consider whether there is still any utility in distinguishing, for the purposes of law and control, between newspapers, online papers, publication on tablets, mobile phones, TV on digital devices and so on. The Press Complaints Commission’s reach is therefore very narrow, but we need no more statutory regulation. Moreover, given choice in what to watch digitally in this age of downloading chosen programmes, there is a real possibility that the programmes of investigative journalism will not be chosen.

What does this mean for regulation? This arises in connection with the recent spates of law breaking in the creation and researching of news. MPs’ expenses details came from private information that was sold, arguably contrary to the Data Protection Act. Can journalists break the law in order to expose the truth? We all praise them if they break the local law to film in Syria, expose abuse in an old persons’ home by undercover methods, or unearth a Royal Family scandal. In an inchoate way, we believe that the public interest may justify breaking the law to get the story. Certainly, in order to prevent fishing expeditions, the claim of public interest should be registered with the editor, if we are dealing with newspapers, before the investigation starts to ensure agreement that the expected end result can be regarded as being in the public interest, as outlined by the noble Lord, Lord Inglewood.

It is a welcome development that the current Defamation Bill contains a public interest defence. Recent events have persuaded me that we no longer have a national view of what should be private and what should be brought to light, whether by investigative journalism or freedom of information. To me, some phone hacking of celebrities might be less of an invasion of privacy than material forced out into the public domain by the Freedom of Information Act and the Data Protection Act—certainly when it comes to references, as I have said before. Sometimes it seems pointless to try to protect any information, given the reach and uncontrollability of the internet. If we have to decide between more regulation of the press or not, we should err on the side of freedom, not least because of the impossibility of attempting control in an era of declining sales and the convergence of media.

This is not to say that the press or contributors to the internet should be allowed to get away with everything. Whenever I have been closely involved in a reported story, I have been shocked, even distressed, by the level of inaccuracy and the difficulty of resolving matters through apology and correction. The Communications Committee in an earlier report already recommended that the BBC improve its complaints system. I repeat my own view that there should be an external ombudsman for the final stage of appeal against a BBC report. Only if that comes about will the public be satisfied objectively.

Today, transparency reigns. Journalists are at the forefront of those calling for openness, the declaration of interests and conflicts, and the recording of background for the purposes of monitoring equality and diversity. I therefore support the noble Baroness, Lady O’Neill, who, in her Reuters memorial lecture 2011, called for journalists to face the same scrutiny that they apply to others. They, too, should reveal their financial and other interests, gifts and payment for content and their ethnicity and schooling, in the same way that politicians, professionals, judges and trustees have to. Diversity of perspective from our journalists is needed here as much as anywhere.

The current furore should not mean an end to investigative journalism or more brakes on the press. There is sufficient law to control reporting if it is applied, and there really is little that can be done about the internet, save educating its users. Investigative journalism needs our support and encouragement, and I hope that your Lordships’ House will give it that.

13:50

[Lord Stevenson of Balmacara]

My Lords, I thank all concerned for this debate, which demonstrates once again the ability of your Lordships’ House to gather together a great range of expertise and quality when debating issues of the day. I also think it is a good sign that so many members of the Communications Committee have been present to debate the report that they produced. That adds a different style from simply reading the report because individual members pick out particular aspects of the report, leaving us with ideas or topics that they think should be given further consideration. We are grateful to them for that.

I am particularly pleased that we were able to hear from my noble friend Lord Macdonald of Tradeston in his valedictory appearance on behalf of the committee. I am sure it will not be the last time he speaks, either here or in the main Chamber. He has been able to add a sense of realism—as have other members—because he has actually been in the areas where decisions of the nature discussed in the report have been taken.

In welcoming the report, I draw attention to the fact that this was authorised for publication in January and published in February, but we are only debating it in July. There may be reasons for that that I am not aware of, but I do not think it does the work of our Select Committees any good if they are held in the dark and not allowed to reveal themselves fully in debate as has happened today. Perhaps the Minister can comment on that.

We have heard of the genesis of the report: the noble Lord, Lord Inglewood, in his bath on a Saturday night, date unspecified. I do not think that we need to know any more, thank you. However, no one reading the report or listening to the high-quality debate can be in any doubt of the salience of the work of your Lordships’ Communications Committee, or fail to be impressed by its ability to spot the key topics of our time, and provide the vital evidence that gives us a chance to discuss the issues it raises.

As the report says, in recent months the role and practices of investigative journalism have received, and will continue to receive, unprecedented scrutiny—I think the noble Lord, Lord Black, called it “pain”—in terms of Lord Justice Leveson’s ongoing inquiry and various other reports and pieces of legislation that could bear on this issue. The report says that the purpose of its work was to look at the future of investigative journalism in the light of the problems currently facing the media and the technological revolution unfolding in the area. However, the report goes much further than that; it is not simply a review of the situation because it produces a number of rather important recommendations. I shall go through some of those that we should focus on today.

On reading the report, we are left with the sense that there is a real and present danger that responsible investigative journalism will not flourish in the future as it has in the past. Today I shall argue that many of the report’s recommendations could and should be implemented immediately, as well as feeding into the action that will need to be taken on Leveson and the other initiatives. I shall cover three main issues: why responsible, high-quality investigative journalism matters and what the issues that threaten it are; what ought to be done immediately to begin to remedy that situation; and what we should be looking at from other agencies, such as Leveson, to secure the future of responsible, high-quality public interest journalism, to borrow a phrase from the noble Baroness, Lady O’Neill. The report states:

“Responsible, high quality, investigative journalism matters; it is a vital constituent of the UK’s system of democratic governance and accountability. At its best, it informs and educates us, enhances our democracy, and is a force for good”.

I say, “Bravo!” to that.

In a world experiencing many changes, few are greater than the revolution in media and communications. New ownership structures, changing consumer habits and technological innovation have together eroded the traditional distinction between broadcasting, newspapers, online news provision, blogs and social networking. These are threats to a way of communicating news that challenges newspaper proprietors, editors and TV news executives across the world. The traditional media have responded to this threat by changing the way that they do business.

First, our mainstream media are no longer “mass” in the old sense. They cater to niches and have become fragmented. Secondly, new technology has created “24 hours a day, seven days a week” media industries. News now moves in real time, tracking and reporting events, great and small, as they happen. The imperative to keep up with competitors and steal a march on them means that the premium for broadcasters and online news sources is to get the story out with the greatest speed possible. Because news breaks during 24-hour news days, the daily or evening newspapers find it increasingly difficult to generate audiences for what they produce.

Thirdly, as a result of increased competition and the consequent need to fuel new stories every hour of every day, the premium for the media now is sensation and scoop not accuracy, headlines not substance, and angles on a story rather than depth of coverage. Therefore, one of the casualties of this new media world is the quality of news itself. Stories now break based on rumour and gossip. People are aware of breaking news but, if it is not substantiated, the audience rarely finds out that the story was fiction, not fact. The line between news and comment is ever harder to find because news comes so fast that a newspaper or TV channel becomes less the reporter of the news and more the commentator on the news. Comment now infuses the very way that news is reported, the issues that are selected, the campaigns that newspapers mount and the framing within which news is presented. Therefore, a question of concern for all citizens in a democracy such as ours is whether a comment-based and scoop-driven media can reflect our common culture and provide the forum within which democratic debate about public life can take place. This is a point to which I shall return.

My second point is to press the Government to take on some of the report’s recommendations to begin the urgent work that is needed to improve the situation—yes, even before the report from Lord Leveson and in advance of other ongoing work. Piecemeal action is rarely to be recommended but on this occasion it is justified, as we really do have a looming crisis.

Several noble Lords mentioned the question of whether, as the report says, investigative journalism is suffering as a result of inconsistencies and a lack of clarity in the law. This is the “50 shades of grey” point made by the noble Lord, Lord Inglewood. An additional point was made by the noble Lord, Lord Black: there are several other areas in which the law needs to be clarified. We have heard that the DPP is consulting on what the report describes as the publication of his,

“broad approach to determining which cases should be prosecuted or otherwise in cases where illegal activity undertaken by journalists in the course of an investigation might be considered to be in the public interest”,

which is welcome. I would be grateful if the noble Baroness, when she responds, could give us some idea of the timescale for this and whether it is imminent.

The report recommends that every news organisation should have sensible internal procedures to track and formally record its decisions first to investigate and secondly to publish a story if such decisions rely on the public interest defence. In its response to the committee, Ofcom makes some points about this. I read it as saying that it thinks they are already broadly doing this in a way that would be satisfactory to the committee. Again, I wonder whether this is right. It would be helpful if the Minister could respond on this and see whether she could work with Ofcom to make sure that this becomes a standard and not just one of the number of ways in which this activity is documented.

As we have heard, the report repeats a recommendation that the Communications Act 2003 should be amended to enable the public interest test to be invoked at the discretion of either the Secretary of State or Ofcom. Again, there has been some action on this and we would be grateful if the Minister could update us on where we are.

Finally on this point, the report recommends that the Charity Commission considers the current pressures of investigative journalism, as well as its democratic importance, when interpreting the relevant legislation. This is a serious point. However, we are helped by the excellent Hodgson report that just came out. This may require some primary legislation. Therefore, it may be possible to work this in together. Perhaps the Minister could take this proposal and give us some advice, either today or later, on whether the department might consider moving with this.

My third point concerns issues the report flags up for other committees or agencies to take forward when they report. However, I hope that much in the report is already being acted on because so much of it is salient. Again, perhaps the Minister could reflect on the progress on a number of these points when she replies. I shall go through my list very quickly and not dwell on it. It includes: the question of tax breaks and other financial incentives that might help broadcasting and newspaper industries through this difficult transitional stage; regulating online content, which currently falls outwith the scope of regulation; triggering the public interest test when a news organisation develops a more than 25% share of the national newspaper market through organic growth as well as proposed mergers; and strengthening media ownership rules to protect plurality. I know that Ofcom is dealing with the latter two issues, so an update would be useful.

The report also requests that the charter review process takes on board the suggestion that the BBC should provide high-quality investigative content in both its television and radio services, including at a regional level. Presumably this is something the department is beginning to shape up to, so a comment would be useful. We have talked about the Defamation Bill and I think we are all looking forward to the debate on that. It was also mentioned that there needs to be more consideration for the role of whistleblowers so that they are properly protected.

Finally, I shall deal with the money. I am struck by how today’s debate has largely focused on how to regulate the industry and, highly relevant in view of the newspaper headlines this morning, how to punish malfeasance. Is there not also the question of how to protect and support the good? One of the casualties of the new media world is the quality of news itself. Stories now break based on rumour and gossip. People are aware but they are not told absolutely whether the story was fiction or fact. As I have said, the line between news and comment is harder to find. As news comes so fast, the TV channel becomes more the commentator than the reporter.

As we have heard, the advertising business model of today’s print media is being destroyed as advertising gravitates from the ordinary news media to the internet. The happenstance of a triangular and interdependent relationship, whose common interest happened to coincide between owners, advertisers and consumers, is breaking down. The question arises: who will sponsor, pay for and underpin quality journalism? Who will fund the in-depth research and publish the quality writing we have enjoyed to date, which, at its best, is the envy of the world? Few people believe that the newspapers we have today will exist in their present physical form in 10 or even five years’ time. No private proprietor of the type described by the noble Lord, Lord Stoneham, will be able to sustain broadsheet losses in the order of £40 million or £50 million a year at a time when advertising and readers are deserting these newspapers. Even if shareholders can be persuaded by John Kay to think longer term, they will still want growth and rising profits in the bad times as well as the good.

We need to look at the mechanisms by which we not only deal with abuses in the press but enhance and incentivise good standards. The report observes that public funding is a potential model for financing investigative journalism. It works in other worlds. Many noble Lords have referred to philanthropy. I have my doubts about that, as others have expressed. It would be interesting to hear the Minister’s thoughts on the report’s specific proposal that a proportion of all media fines should be allocated to a fund reserved for financing investigative journalism or for the training of investigative journalists.

However, the real problem here, and something that the committee might consider returning to in a future report, is that there are features of good-quality investigative journalism that, in a purely market-based system, the market by itself cannot produce. Of course we want journalism that meets diverse consumer tastes and of course we want publishers who compete to innovate in meeting those tastes—and they will—but we also want journalism to meet certain standards irrespective of whether they limit profit maximisation.

We can deal with the bad issues arising from journalism by refining and enforcing the law, but as a matter of public policy we need to begin to think about how we incentivise the good as well; in other words, as the standard of journalism declines—and I think there is an issue in the internet age about declining standards—we must have a means by which we incentivise the good, always remembering the challenging words of the noble Baroness, Lady O’Neill, about being certain about what exactly investigative journalism is.

We faced similar problems at the start of radio and then TV broadcasting, and out of those emerged the BBC licence fee, so perhaps that licence fee should be available to the internet and for publications that go beyond broadcasting. I offer this idea to the noble Lord, Lord Inglewood, the next time he is ruminating in his bathroom of a Saturday evening: that the committee considers this issue for possible future study, as I am certain that it is something we shall return to.

14:08

[Baroness Garden of Frognal]

My Lords, I add my thanks to my noble friend Lord Inglewood and his committee for producing an insightful and topical report. I join the noble Lord, Lord Stevenson, in welcoming the contributions made to the debate today by several members of the committee. Although the report was printed in February, its findings are no less relevant today. However, I will relay to the business managers the concerns of the noble Lord, Lord Stevenson, over the delay in holding the debate. Even so, these topics are still very much front page news at the moment. The phone hacking scandal has meant that some parts of the press are under greater scrutiny than ever—scrutiny that is both entirely right and necessary. In that connection, Lord Justice Leveson’s inquiry continues, and in due course it will make recommendations on a regulatory framework that should restore confidence.

The free press in this country has a long and proud history. It underpins our democracy and as the fourth estate it plays a fundamental role in holding the powerful to account. It brings vital matters of public interest to the fore, it informs citizens and enables them to exercise their democratic rights. This excellent report highlights the good work of newspapers and the important role that investigative journalism plays. Quality investigative journalism is not restricted to the press. Other media such as television, radio and increasingly the internet, which has come up in our debate, are all valued contributors, but the report considers the positive aspects of the media with a timely reminder of why it must continue to flourish. As my noble friend Lord Inglewood has highlighted, and indeed as the Guardian is not backward in pointing out today, there would have been no Leveson without the scrutiny of a newspaper that asked the questions that others would not ask. I also listened with interest to the noble Baroness, Lady O’Neill. She stressed that investigative journalism should be a luxury brand aimed at fact and at speaking truth to power.

The report warns that rapid economic, technological and behavioural change is creating profound economic, regulatory and legal challenges for investigative journalism. Newspapers continue to face the twin challenges of cyclical and structural change. Their very survival is dependent on advertising revenues as well as retrieving cover price charges. We heard from my noble friend Lord Stoneham about some of the implications of that. Circulations have been falling, particularly for local newspapers, and online newspapers often find it difficult to adapt. However, the right reverend Prelate the Bishop of Norwich was right to remind us that the Eastern Daily Press is thriving as a local newspaper. Indeed, the Government are taking forward new provisions to try to curb local authority news sheets, thus leaving the local press to provide, rightfully, an independent source of local news and politics, as well as addressing what my noble friend Lord Black referred to as the “bonfire of red tape”. The noble Lord, Lord Smith, also raised that as an issue.

On the question of government assistance by way of additional tax breaks or other financial incentives, noble Lords will know that the Government already provide zero-rated VAT for newspapers, which is a decent tax break for the industry, and there are certainly no plans to change that. The report suggests that the continuation of zero-rated VAT could be limited to those who are members of the press regulator. Lord Justice Leveson may comment on this, but I note that the proposal might breach the VAT principle of fiscal neutrality. The noble Lord, Lord Stoneham, expressed disquiet over public reaction to further public funding for newspapers.

The committee addresses the internet as a potentially disruptive force for newspapers, which need to find new and different business models in order to monetise their products online, and invites Lord Justice Leveson’s views on bringing certain online content into the remit of the regulatory body. This came up numerous times in oral evidence and is a critical area of consideration, which noble Lords have raised again today. The noble Baroness, Lady Deech, made some strong points about that. The noble Lord, Lord Macdonald, raised the benefits and opportunities of new technologies, which enable citizen journalists to join the debate. We must not forget that these things come with benefits as well as disadvantages.

The Secretary of State for Culture, Olympics, Media and Sport has emphasised in his evidence to Leveson that any change to the regulatory structure should stand the test of time and avoid the risk of obsolescence. I also pay tribute to the noble Lord, Lord Hunt of Wirral, for his work in this regard. My noble friend Lord Stoneham also raised concerns about the regulatory side, as did a number of other noble Lords. In response, perhaps particularly to the question raised by the noble Lord, Lord Smith, we should note that there is a spectrum of options for future press regulation from voluntary to statutory options. It is not a black and white binary choice between self-regulation at one end and state control at the other. There are a number of different models that might be used on this.

On defining the public interest, the committee recommends that the criminal law should not be redrafted in order to create a formal, statutory defence relating to the public interest. We note that Lord Justice Leveson is taking into account potential unintended consequences that could come about if a statutory approach was taken. Relevant codes of practice may provide a potential alternative to legal reform.

As my noble friend Lord Inglewood set out, we agree that a clear definition backed by a body of case law such as that set out in the Editors’ Handbook is invaluable to editors who have to make day to day decisions against a backdrop of fast-changing events and tight deadlines. We also note a further clarification in this area might come from the prosecuting authorities. In his witness statement of 7 February to the Leveson inquiry, the Director of Public Prosecutions said that he had decided to draft an interim policy setting out the approach that the Crown Prosecution Service takes and to publish it for public consultation. This will include its approach to the prosecution of journalists, who, in the course of their work as journalists, breach the criminal law. This guidance is in draft and the CPS is considering responses. The consultation closed on 10 July, and we await the findings from that.

The noble Baroness, Lady O’Neill, and my noble friend Lord Black, were among those who raised concerns about the Data Protection Act. Of course, the Leveson inquiry is looking at data protection in the context of media regulation before deciding whether to introduce custodial sentences under Section 55, which means that the introduction of the enhanced public interest defence is under review too. However, I would point out that prosecutions of journalists under Section 55 are incredibly rare. In any event, the Government are not aware of any having taken place in recent years.

On civil law, the Government’s Defamation Bill will be relevant to the changes that the committee recommends, particularly in respect of libel laws. The Government recognise the need to protect responsible investigative journalism on matters of public interest. The Defamation Bill, which I am glad to hear was welcomed by a number of noble Lords, including my noble friend Lord Black, will introduce for the first time a statutory defence of responsible publication in the public interest but expressed in clear and flexible terms. It provides a defence where the defendant can show that the allegedly defamatory statement is or forms part of a statement on the matter of public interest and that he or she acted responsibly in publishing it.

The noble Baroness, Lady O’Neill, the noble Lord, Lord Macdonald, and others made salient points about sources. Journalists must be able to offer adequate protection to their sources. The Government recognise the importance of protecting whistleblowers, as set out in the Public Interest Disclosure Act, which is designed to protect most workers from being unfairly dismissed by their employer or suffering other detriment whenever they have reported their concerns to the employer or the regulatory authorities.

On media ownership, the committee made some considered suggestions both for Leveson and for Ofcom. The noble Lord, Lord Smith, raised the matter of thresholds for invoking the public-interest test. As the Committee will know, the Government recently received a report from Ofcom on media plurality and are awaiting the response to some further questions. The response is expected in September, and a seminar on media plurality is planned for October. I was pleased to see the committee’s welcome for the Government’s action last year to relax rules relating to local cross-media ownership, a measure that offers local media organisations the opportunity to develop a sustainable business model. The noble Baroness, Lady Deech, had some valuable words to say on that subject.

The issue of funding was raised in many speeches. The report makes a number of recommendations in respect of additional potential funding sources for investigative journalism. Interesting initiatives in this area are beginning to emerge, such as the introduction to the UK of a more American approach to independently funded investigative journalism. We note in particular the work of the Bureau of Investigative Journalism, which has successfully worked in partnership with a number of notable news outlets in the UK, including the BBC’s “File On Four”, “Panorama”, Channel 4’s “Dispatches”, the Financial Times, the Daily Telegraph and the Sunday Times, all of which have good records in investigative journalism.

The committee makes an imaginative proposal for a new investigative journalism fund, which could be funded through fines levied on press organisations found to have broken the editors’ code. Once again—and I am sorry if this is repetitive—the Government will be waiting with interest to see what Lord Justice Leveson says in this area, but I note that the noble Lord, Lord St John of Bletso, was among those who expressed concerns about this particular recommendation.

As for the BBC, we note concerns about cutbacks made in the BBC “Panorama” programme, also mentioned by the noble Lord, Lord St John of Bletso. This programme has an acknowledged commitment to investigative journalism. The licence-fee settlement is fair to the BBC and a very good deal for licence-fee payers. We shall have to await further consideration from the BBC Trust’s strategy review, and find what comes out of that.

The noble Lord, Lord Stevenson, and others raised interesting points about charity law and the benefit that could be gleaned if the law could be amended to include investigative journalism as a charitable benefit. The existing list of charitable purposes has, as has been mentioned, recently been reviewed by my noble friend Lord Hodgson of Astley Abbotts. The Government are now considering his recommendation that no change should be made to the current list. Some aspects of charity law may make it unsuitable for many aspects of investigative journalism, for reasons including that any new organisation seeking charitable status would need to demonstrate public benefit, which is distinct from the concept of public interest, and that the constraints of charity law would also include a requirement for political impartiality. That might also be something to be further addressed.

A number of noble Lords raised the issue of skills and training required for investigative journalists. The noble Lords, Lord Inglewood and Lord Macdonald, said that young people were still keen on journalism, despite the bad press it has had, but then young people are still quite interested in becoming Members of Parliament, despite the bad press we as politicians have had from time to time. Some of the evidence in the report mentioned that investigative journalists were a “strange breed” who were “bloody determined” and whose “brains are wired differently”. We need people like that, but probably not too many of them, to move this forward. We support the opportunities within the media industry of internships, even apprenticeships, as well as the university programmes in investigative journalism that were highlighted in the report.

I shall pick up some other disparate points made in the debate. The noble Lord, Lord Macdonald, mentioned the wonderful case of Private Eye, which is thriving 50 years on, and I know that my latest copy thudded through the door as I was leaving this morning. That publication has pushed the bounds of investigative journalism to new levels, and the fact that it continues to thrive is probably a mark of a healthy democracy.

My noble friend Lord Stoneham mentioned family-dominated businesses in the media. Quite rightly, the family-dominated media business that we know more about at the moment is the Murdochs, which is not an undiluted good news story, but of course he is quite right that there have been some philanthropic media families in the past who have made great contributions to the nation. He also gave us some fascinating insights into the dynamics and economics of the newspapers, and the fact that the iPad may itself be a major further challenge to the printed news.

The right reverend Prelate the Bishop of Norwich again commented, to which I have already referred, on politicians having falling even below journalists. Let us hope that at the end of the Leveson inquiry when all this has been weighed and recommendations have been made, that, as the right reverend Prelate says, hope will outweigh anxiety. The noble Lord, Lord St John of Bletso, also talked of rays of hope. This report sets out both the importance of investigative journalism and the fact that there is undoubtedly a future for it.

The noble Baroness, Lady Deech, raised the conundrum that has always puzzled me. When we read the newspapers about a story we do not know, we believe it. Yet we are all absolutely outraged at inaccuracies when we know something of the background information. This strange mismatch of disbelief about the media might fade into the background as newspapers become more accurate.

My noble friend Lord Black raised a number of concerns. I note his concern about the copyright in the Enterprise and Regulatory Reform Bill. I assure him at this stage that the Government have no intention of playing fast and loose with copyright law. Of course, there will be a great deal of further debate when the Bill reaches the House.

On the Competition Commission, the noble Lord will be aware that the Department for Business, Innovation and Skills undertook a wide-ranging consultation of competition regime between March and June of this year in order to invite views on options to reform the regime, recognising that there is scope for improvement. The Government have announced that we will be bringing the Competition Commission and the Office of Fair Trading together into a single body to streamline the process for business. We hope that that will indeed be one of the improvements. There were other matters in his speech too, but I think I have covered the main points there.

On the point made by the noble Lord, Lord St John of Bletso, on the freedom of the press, I again emphasise that the Government have absolutely no intention or wish to impose on the freedom of the press, which has been raised throughout this debate. It is something that we value and treasure. We certainly would not wish to see it suffer in the cause of some of the incidents that have infringed that freedom in recent years.

I am conscious that there has been a wealth of expertise and thought in today’s debate, and that I might not have answered all the questions that have been raised. If there are questions specifically for the Government, I shall try to come back to noble Lords in writing. I am also aware that a great many of the issues raised in this report are dependent on the findings of Lord Justice Leveson. I assure noble Lords that the Government will be making a full and formal response to this Communications Committee report once it has received the report of Lord Justice Leveson and we are able to put all the evidence together in our response.

Meanwhile, we very much recommend this report with its wide-ranging recommendations. I note that, while two members of the committee have suggested that this is such a good report, there are so many matters still outstanding that we might perhaps await Inglewood mark 2. There will certainly be material from this debate and into the future, which would benefit from some further investigation from your Lordships’ committee.

Once again, I thank my noble friend Lord Inglewood for introducing this debate and all noble Lords who have contributed and brought such an immense range and depth of experience on these matters.

14:23

[Lord Inglewood]

My Lords, when a Select Committee is conducting an inquiry, a central part of its chairman’s role is to try to draw together the views and evidence of the expert witnesses, and the expertise and experience of the members of the committee, to try to achieve common ground that is both constructive and sensible. On an occasion such as this, the chairman’s role is to try to present to the Committee an epitome of the consensus that is reached. I—and, I am sure, all the other members of the committee—very much welcome the support that has been given to our report.

We also welcome what I might describe as the reverse engineering that has been carried out on it without breaking support for its consensus. We all know that there are a wide range of views and perspectives about the current political issues surrounding the press and more widely. Of course, it is unfinished business. Our report is not an end in itself. It is meant to be a contribution to the wider political debate and challenge that is posed by what one might call the matter of the media.

Thinking back to my school days, I know that the last day of term is not an occasion to be verbose. I will conclude merely by saying that I hope and believe that my bath-time musings have not been in vain, even if I recognise that they will not bestow immortality on me, as they did on Archimedes.

Motion agreed.

Adoption Agencies (Panel and Consequential Amendments) Regulations 2012

Wednesday 25th July 2012 Grand Committee

Motion to Take Note

14:27

Moved by

[Baroness Butler-Sloss]

That the Grand Committee takes note of the Adoption Agencies (Panel and Consequential Amendments) Regulations 2012 (SI 2012/1410).

[Baroness Butler-Sloss]

My Lords, in putting my name to this Motion, I should like to make clear that it is not in any way a Motion of Regret, nor indeed any intention to criticise the government policy on adoption. As chairman of the Select Committee on Adoption Legislation, I feel that I should highlight possible implications in relation to the statutory instrument that comes into force on 1 September. I am extremely grateful to the noble Lord, Lord Hill, and Tim Loughton MP for seeing the noble Baronesses, Lady Morris and Lady Howarth, and me last week. We had a most constructive discussion on the statutory instrument and other aspects of the work of our committee.

To start with, I was rather taken aback by the statutory instrument being laid and coming into force so quickly, when we are actually hearing evidence about the duty of adoption panels to recommend whether a child should be placed for adoption. I should correct an error on my part during our evidence-taking, when I suggested that the Government were saying that panels were to be abolished. I was wrong and apologise for saying it. I now understand that the statutory instrument we are discussing today was already in the pipeline while our committee was being set up. However, it raises a rather more important issue in that it will come into effect while we are hearing conflicting evidence about the benefits as well as the disadvantages of this part of the work of the panels. This is evidence that the committee of which I am chairman believes should be brought to the attention both of the department and of all those who are engaged in the adoption process.

14:30

The disadvantages are based on delays in the adoption process and there is no doubt that children’s welfare is at risk when final decisions as to their future are not made within the suitable timescale of the child. This appears to happen in many adoption applications. The family justice review, at paragraph 78 of its final report, refers to duplication by adoption panels of the work of the court, which leads to delay. The review suggests that,

“the court’s detailed scrutiny of these cases should be sufficient”.

The Government have accepted most of the Norgrove recommendations, including the removal of this task from panels. Martin Narey, in his evidence to the committee this week, supports removing this part of panel’s duty. On the other hand, we have received evidence that panels do not contribute much, if anything, to delays, but there appears to be an element of duplication. Ofsted, for instance, reported in some detail that panels do not add to delay. Moreover, we have received written and oral evidence on the value-added element of the panel assessment from the chair of the adoption panel in the north-east, orally from BAAF on 3 July and from Coram on 10 July. They set out their concerns and disagreed with the removal of this duty. Both Coram and BAAF have reinforced their concerns in further written evidence that I hope Minister has now received.

I shall read a brief passage from the transcript of 3 July of the oral evidence of a witness, Alexandra Conroy Harris. She said:

“The theory behind the abolition of panels in the decision on whether a child should be placed for adoption, which came out in these regulations, is that the court will be able to give proper scrutiny to the care plan for the child. We have a lot of concerns that the courts do not have the time, the wide range of expertise or the opportunity to reflect that panels do. Panels draw on experts from social work, psychologists, lay people and people who have had personal experience of adoption and bring them together. They put a lot of time and effort into considering quite a lot of paperwork and evidence about a child before making a recommendation. The idea that a judge would be able to duplicate that within the court process, given the time pressures they are under and the lack of broad-based expertise available to them in making that decision, is quite concerning. It reduces the background to the decision for a child and it makes it on a much more narrow basis”.

Noble Lords will be relieved to hear that I do not propose to read out any other passages from the voluminous evidence that we are receiving.

BAAF also submitted written evidence as the result of the committee asking these questions. It strongly opposes the removal of panel involvement and suggests that the proposals in the statutory instrument do not reach the panel members, practitioners and managers most closely involved in adoption because they did not form part of the consultation process. According to BAAF, the panel hearing gives an opportunity for experienced and specialist multidisciplinary teams to consider all the options for a child and to ensure that all regulatory requirements have been met. It monitors the quality of decision-making, the assessment of the child’s situation, and can require further work to be done. That distinguishes it from the role of the court, which it suggests does not include a detailed consideration of the care plan for adoption. I cannot resist reminding the Minister that Norgrove recommended that judges should not get too closely involved in the detail of care plans.

The Coram representative, in her evidence, said that the panels are,

“quite cumbersome bodies. However, one of the things people value is that there is an independent element”.

The representative went on to say that:

“There is a huge variation in practice within local authorities, and sadly the quality of the reports being prepared is sometimes quite poor. Panels provide a point at which, first, social workers know that they have to produce their reports and, secondly, the reports are often sent back for further work”.

If there is no panel, according to Coram, it,

“will just shove the problem on to a different part of the system”.

Coram also suggested that the panels could be streamlined.

The subsequent written evidence from Coram set out key concerns, including on the task of the decision-maker and the unintended consequences of the current proposal. I hope the Minister has read or will read all these. They include concerns about a significant increase in the work of the decision-maker, the possibility of quality slipping without multidisciplinary scrutiny, and the removal of the independent panel chairs. I therefore ask the Minister to reflect on what both Coram and BAAF said in the evidence to which I referred.

Barnardo’s on 10 July, and CAFCASS on 17 July, gave evidence stating that panel assessments come too late in the process. Barnardo’s, at page 39 of the evidence, argued for a vastly enhanced role for the IRO—I always forget what the initials stand for. Barnardo’s said that the IRO should be much more active,

“to twin-track from the earliest point”,

that it is,

“rare to come across someone who tracked the system from end to end, from first contact with the child right the way through to adoption”,

and that it is concerned that without a detailed focus, “matters will drift”.

CAFCASS said that the trigger for local authorities to begin to consider a placement order application is a bit late in the process, and that the discipline of panel meetings serves as a focal point for local authority activity. CAFCASS said at page 8 that it was not so much the committee or the panel but the quality of the work done at an early point. In the absence of adoption-panel assessment, quality work should be put in place at an earlier stage so that there is a proper focus of a kind that a family judge would not be able to give before the child placement application is heard.

I received a briefing yesterday from the NSPCC, which I hope the Minister also has received. I will read only the questions that the NSPCC suggests that I should ask. Given the judiciary’s well documented mistrust of social workers, how will the Government ensure that cases brought before the court recommending adoption will have been properly considered and decided in the absence of scrutiny by adoption panels? How confident are the Government that the proper supervision is in place, or will be in place, to ensure that decisions to adopt are properly considered and made in the absence of scrutiny by adoption panels? How will the Government ensure that the court system is not clogged up with cases where adoption is the wrong decision?

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, a Division has been called in the Chamber. The Committee will therefore adjourn for 10 minutes and reconvene at 2.47 pm.

14:37

Sitting suspended for a Division in the House.

14:47

[Baroness Butler-Sloss]

Before I continue, I should, with a further apology, make a correction: I went to see the two Ministers with the noble Baroness, Lady Morris, and the noble Baroness, Lady Hamwee—not the noble Baroness, Lady Howarth. I apologise to the noble Baronesses, Lady Hamwee and Lady Howarth.

As a former judge, I have my doubts whether the adoption judge hearing a placement application would be able to carry out a task similar to the panel, and whether they would have the evidence and the opportunity to carry out the detailed scrutiny expected by the Norgrove committee. I have some questions for the Government. On the assumption that the Government go ahead with removing this duty from panels, what will be put in its place? Will an independent person other than the decision-maker pull together all the relevant evidence about the child at an early stage and advise, or will there be a gap, with the potential for drift? Will the whole burden be placed on the decision-maker alone?

Is the department looking at active involvement of the IRO and, if so, recognising that the IRO would have to have a much reduced current case load? The adoption committee has not yet—and I emphasis this—formulated any conclusions on any of the issues that I have raised. However, we are concerned that there is a conflict of evidence and consequently some degree of confusion over the removal of the panel from this task. When the statutory instrument comes into effect on 1 September, the committee is concerned about this degree of conflict and confusion and what advice the department is going to give, particularly to local authorities, to resolve these issues and to avoid drift, lack of momentum and possible delay, with the case not being in order for the judge. I beg to move.

[Baroness Hamwee]

My Lords, I thank the noble and learned Baroness very much for bringing this matter to the Committee, and for her quite splendid chairmanship of our committee. I thank the Minister and Tim Loughton for the meeting last week. I am very flattered to have been confused with the noble Baroness, Lady Howarth, I must say. The meeting was extremely useful and I hope that we made it clear that members of the Select Committee share with the Government the objective of the best possible outcome. We have received powerful evidence about the impact of lack of permanence, particularly in the early years.

Given the jigsaw of interlocking procedures, it is important for the Government to explain why they are taking one step of several steps that may be available, and which I suspect will be taken quite soon, when a number have been identified. It is not always entirely clear why one step should be taken in isolation. I appreciate that one can argue it the other way—that if you have identified a step you should get on and do it—but this is quite a complex area.

The Explanatory Memorandum says that the objective of the regulations is to remove both delay and duplication. Delay is, of course, a loaded term. I am sure that the noble Baroness, Lady Eaton, has experienced, as I have, that when one is arguing planning applications in local government, delay does not actually go to quality. She is agreeing with me. Taking time may sometimes be necessary. Taking time unnecessarily is a bad thing, of course. The duplication that the Explanatory Memorandum refers to, as the Norgrove report did, is between the panel and the court. The noble and learned Baroness, Lady Butler-Sloss, will know how long a judge is typically given to read the papers—I suspect less time than a panel is, although I am always amazed at how quickly panels assimilate information.

The Government are not pointing to duplication between the panel and the decision-maker, who does not need the prior work of the panel, in the view of the Government. It seems to me that the decision-maker must need the same information as the panel, and Coram, to which the noble and learned Baroness has referred, regards the panel as providing quality assurance. Coram has given us some very helpful evidence, and the noble and learned Baroness has referred to the possible slippage in quality because of the loss of the independent element.

Coram also talks about adoption decision-making being delegated to less senior staff or the creation of a dedicated role that would not be integrated in the same way that the current post is. It also talks about the removal of independent panel chairs, and we have heard some very forceful evidence, particularly from BAAF, about the contribution made by independent members. The expertise from outside the authority brought to panels is really quite important. Alongside that, we are hearing quite a lot of concern about the lack of experience of adoption work among social workers. We asked the Local Government Association for its comments on these regulations, and, after a moment’s thought, one of the councillors who was at our session more or less said that authorities would invent a structure to replace panels. Admittedly, she might have been thinking about the abolition of panels as a whole, but it was a very practical response. If an authority sees a need to bring in outside expertise, it will find a way to do so.

The Government say that panels add no value, but I wonder whether the converse of that is the risk of abolishing what is excellent practice. We have heard that, in practice, panels meet frequently—weekly if necessary. If they do not meet often enough and are causing delay, their practice needs to be improved. I also wonder whether, if a panel is retained for matching a child with a family, that panel would not need to cover much of the groundwork that would have been covered by the panel dealing with placement.

When we met the Minister, Mr Loughton, he told us about the visits that he has made to sit in on and observe panels. He commented on the amount of material that panel members are expected to absorb, but he did not seem to say that they are failing. There are professionals, sometimes from different professions, who become skilled through the job that they are doing. I have to say that, as a society, we are very lucky that there are people who are prepared to do this job. I am not convinced that they should lose this role.

[Baroness Howarth of Breckland]

My Lords, I do not intend to repeat the very clear, coherent points made by the noble and learned Baroness, Lady Butler-Sloss, but I shall add to them. I am delighted that this debate is being held because the committee was extremely concerned when it saw the instrument. It is important to make the point that if the Government ask a Select Committee to undertake a task—in this instance to look at adoption—the committee should be kept well informed and other decisions should not be made without cognisance of the evidence that it is hearing and has heard. If it is not, we might as well all go home, rather than continue to work hard on the issues. I know that the chair is unable to say that but I think I can.

I shall say a little about some of the work around the family justice review, which was extremely complex and fraught. I know that because while it was being undertaken I was chair of CAFCASS, which was central to the disputes and discussions about delays and whether systems should be changed. David Norgrove did not say a great deal about panels but they are what I call low-hanging fruit. In looking at structures and systems, panels are one layer that you might be able to take out. You would then have removed a level of what looks like bureaucracy to move things forward. However, David Norgrove found an extreme level of mistrust between all the partners. I am sure the noble Lord, Lord Hill, spoke to him during that period. He was almost obsessed by the relationships between judges, social workers, CAFCASS and the other stakeholders in dealing with the issue. Therefore, finding good recommendations was important to him, and there is much in his report that takes us forward.

It is clear that, at present, many children spend far too long in care, moving in and out of it before decisions are made, and that we have to find ways of speeding this up. Views about adoption panels and whether they help or hinder the process are mixed. There is no systematic evidence. There has not been any decent inquiry into the working of panels. Again, I will not repeat what the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have said about the evidence that we have heard from other parties, but people have anecdotal evidence that is as strong as any that might come from a review. I think that that would be useful. Personally, I am agnostic about panels and I suspect, as CAFCASS said, that they could be reviewed; that they come far too late in the process; and that the important thing is that the multi-professional information is gathered appropriately together to properly inform the decision. I do not think that the way in which that is processed has been properly looked at in relation to the decision to remove panels. Those are the things that would make a difference.

One of the other things that we know—I shall repeat this—is that when information gets to the judges, if they do not believe that they have enough expert information, they will commission experts to give it to them. A piece of work we have done recently is that of reducing the number of experts in court, particularly in the family courts, in order to reduce delay and speed up good quality decision making. It is quite clear that social workers and CAFCASS officers have a high level of expertise, but we also know that local authorities vary hugely one from another. What is the Minister going to do to make sure that when information goes to court, it does not add to delay because the judge is looking for the right information which he or she does not think has been quality tested? At the moment, they have the assurance that it has gone through a number of experts in a panel. It may be that there is an answer to this; I am looking for it.

I am also extremely concerned about the amount of work that falls on the shoulders of both decision-makers and independent reviewing officers. We have seen examples where the level of caseloads—certainly for independent reviewing officers and, I am sure, people up and down the country who have to make these decisions—is quite inappropriate in terms of being able to make the quality of decision that is needed. If Tim Loughton, when sitting in on panels, thought that they had a lot of material to digest, imagine what it would like for the decision-makers if they have to digest the material for themselves without having an expert opinion across a range of issues. They will be looking at psychiatric problems in some children who are going to be placed, or children with learning difficulties. We know that children who are being placed for adoption and coming through care are not straightforward babies with no difficulties. The panels help to assess that information before it is given to the judge in relation to the placement.

However keen you are on adoption, it is necessary to remember the balance between birth families and prospective adoptive families. There is a danger that, if you do not have good information on their families, which social workers in local authorities have to assess, there will be miscarriages of justice. That is of deep concern to me.

I would ask the Minister to answer the questions from the NSPCC which were repeated by the noble and learned Baroness, Lady Butler-Sloss. It is extremely concerned about the mix of practice across the country. I also ask him to tell me how he, being responsible in central government, can ensure that local government, with all the decentralisation, do not overwhelm those who have to make these decisions so that quality decisions continue to be made. I will rest my arguments there.

[Viscount Eccles]

My Lords, I will follow the same theme but I hope that I will not be repetitive. A great deal is going on in the area of adoption, whether it is the Norgrove review, the March action plan or the existence of the Select Committee on which I am very pleased to serve.

I want to draw attention to paragraph 78, which records the decision and has already been quoted by the chairman, the noble and learned Baroness, Lady Butler-Sloss. It ends with the sentence she has already quoted:

“We believe that the court’s detailed scrutiny of these cases should be sufficient”.

It does not say “is sufficient” or “is known to be sufficient”: it says “should be sufficient”. It is quite important that that sentence is conditioned. Indeed, the Explanatory Memorandum should have quoted paragraph 78 in full and not selected the middle sentence. In my view, the Explanatory Memorandum to this instrument has a tendency to short-cut.

Let us take the words “should be” and look at what this enormously comprehensive report, with more than 100 recommendations, said on the relationship between courts and local authorities in paragraphs 3.45 and 3.46. It is worth reading this into the record:

“Our recommendations are intended to restore the respective responsibilities of courts and local authorities”.

If I may interpose, the word “restore” is a quite strong use of language. It implies that something is not as it used to be, even if not quite that it has broken down. The report continues:

“But to change the law does not tackle the root cause of the difficulties. This stems we believe from a deep-rooted distrust of local authorities … This in turn fuels dissatisfaction on the part of local authorities with the courts, further damaging relationships.”

Paragraph 3.46 states:

“The result is that the relationship between local authorities and courts can verge on the dysfunctional. For the system to work better it is not acceptable for each group to sit on the sidelines and criticise the other.”

It may be right to have taken away one of the responsibilities of panels. It could be right to remove the second opinion which may be provided very helpfully either to local authorities or to courts which might need it. It may be right to make them face up to the need to work successfully together. Perhaps I may be allowed to say that that is the Norgrove motivation. But it seems very risky.

We know that the performance of local authorities is uneven, for some quite good reasons such as the size of the authority or the ethnic mix in the authority. Political persuasion may have entered into it at some stage. We also know that the performance of the courts is very uneven. Our committee has not yet received as much evidence on that as we will have done when we come back in the autumn. Indeed, the government literature—the action plan in March or the Explanatory Memorandum—is quite cautious about criticising the courts. It is perhaps overcautious in the balance between its opinions on local authorities and the courts.

However, Norgrove is very clear. I think that he is saying that the front-line troops—the local authorities, the IROs and the social workers, and the courts with the judges—need to be in the front line. They need to get together and to perform without being intervened upon by outside experts and interests, which may be right as a long-term objective. Certainly, one would hope to find relationships between local authorities and courts in general becoming much better than they apparently are if this review is to be believed—and I see no reason to doubt it.

However, the Government will have to watch what happens very carefully, because it is not self-evident that removing this second opinion, this ability to put things together to the benefit of both the local authority and the court, will enhance the process of adoption. Delay has been mentioned as a reason. The evidence for it does not stand up. The evidence for duplication is dependent on there being confidence that the ability to perform exists both in the local authorities and the courts. If it does not, the duplication argument does not stand up either.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the noble Baroness for putting down this Motion today. She has enormous expertise in this area and, as I had anticipated, it has been very instructive listening to her speak not only about her past experience but about the work of the scrutiny committee. It has been interesting also to hear the details of the ongoing work of that committee that other noble Lords have been able to share.

I hope that noble Lords will forgive me if other people in the Room have more expertise in this area than me; I see myself as being on a learning curve. However, I believe that we have so far failed to get the balance right between scrutiny and decision-making in adoption procedure, leading to unacceptable delays in the processing of applications for children to be adopted. As has been said today, this matter has been debated on many occasions over many years. It is also addressed in detail in the Family Justice Review report. As we have heard, the amended regulations before us today implement one small change in a much bigger set of recommendations contained in that report.

Having looked at those recommendations, we are persuaded that a one-stage process of scrutiny by either an adoption panel or the courts through a placement order should be sufficient to protect the interests of children and parents, with the emphasis being clearly on the primary interests of the child. However, the questions posed by the noble and learned Baroness, Lady Butler-Sloss, chime with several of our concerns.

The Explanatory Notes accompanying the regulations make it clear that this change is part of a larger package of legislative reform affecting adoption practices and that the Government will consult on these wider proposed changes. We look forward to participating in the consultation, and I would be grateful if the Minister could take this opportunity to update us on the timetable and scope of the planned consultation. Is it the intention, for example, that the outstanding recommendations from the Family Justice Review relating to adoption and the conclusions from the adoption scrutiny committee will be incorporated in the consultation?

This leads to the fundamental question, which the noble Baroness raised, of the timing of the proposals. We wonder at the wisdom of introducing this change to such an important piece of public policy on a seemingly piecemeal basis. Perhaps the Minister could clarify why the changes are being introduced now, when the scrutiny committee’s work is ongoing and when more radical issues relating to the role of local authorities and adoption panels are on the cards. The noble Baroness, Lady Howarth, asked powerfully why the scrutiny committee’s work was commissioned if it was to be pre-empted in this way as it now appears to be.

Given the sensitivities involved in dealing with adoption issues and the need to ensure that safeguarding the interests of the child is built into everything that we do, can the Minister confirm whether the changes, if introduced, will be monitored and reassessed over time? It is vital to ensure that child protection at this fundamental level is not being compromised. I look forward to hearing what the Minister has to say.

15:14

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, like others, I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, for raising the issues that she has today and for giving us all the opportunity to discuss the role of adoption panels. I was glad that she came in last week, with my two noble friends, to see my honourable friend Mr Loughton. I know that he was glad to have the opportunity to meet her and other noble Lords, and to respond to the concerns put to him. I think that we had a useful discussion on that occasion.

I will make sure that Mr Loughton sees the evidence to which the noble and learned Baroness and other noble Lords have referred today because I do not think that the submissions to which she referred have yet come through. I also take the wider point, which was also made by the noble Baroness, Lady Howarth, about the importance of making sure that the various strands of what the Government are doing and the work of the committee are joined up.

That also relates to the question put to me by the noble Baroness, Lady Jones of Whitchurch. There are a lot of separate strands, on some of which consultation is taking place and on some of which it is not. It might be helpful—I will commission this from colleagues—if I pull together where we are on various issues; for example, the timescales, the proposals around consultation and so on. Like the noble Baroness, Lady Jones, but unlike all other noble Lords here, I am relatively new to this as well. As I am trying to understand where we are on a number of fronts, it might be helpful if I can pull it together and set it out.

I hope that that also responds to the point put to me by the noble Baroness, Lady Howarth: in laying the regulations on adoption panels, the Government were not seeking to pre-empt the conclusions of the committee. Nor, obviously, did we intend any disrespect to the committee. It was simply that the Government had announced that they had accepted those recommendations from the family justice review on that specific point on the adoption panels back in February before the committee, I think, was convened. This relates to a point made by my noble friend Lady Hamwee. We know that the lives of vulnerable children can be improved by making rapid progress, which makes us want to make progress as fast as we can. However, we have to recognise the whole time that we need to strike the right balance between wanting to make progress where we can identify issues that we are able to knock off and move on, and needing to make sure that the safeguards are there so that we do not end up approaching it in a piecemeal way but with a consistent approach across the piece.

As has already been alluded to, the Government accepted the recommendations of the family justice review as part of their overall drive to speed up the system, which we all agree has become too slow. Noble Lords know better than me that the delay damages a child’s development. Where adoption is right for a child and subject to proper safeguards, the adoption process should work as smoothly and swiftly as possible. It is not right that children should have to wait more than a year for care proceedings to be completed by the courts or that it takes an average of one year and nine months for a child taken into care to move in with their adoptive family.

The previous Government recognised this when they set up the family justice review. Tackling delay in care proceedings was one of their key objectives. The 55 weeks for a child’s case to progress through the courts is a very long way from the 12 weeks—I think it was that—envisaged when the Children Act 1989 was introduced.

This Government, like the previous one, are keen to reduce delays. In March, we set out our plans in An Action Plan for Adoption, to which my noble friend Lord Eccles referred. On 6 July, the Prime Minister announced further measures to see children, particularly the youngest, moving in with their adoptive parents as quickly as possible. I know that the Select Committee is looking at this issue through its call for evidence and discussions with expert witnesses. We look forward to hearing the committee’s views in due course.

In the overall context of wanting to reform the system, we have brought forward the adoption agency regulations we are discussing today and which we plan shall come into force in September. I will briefly set out what we do and do not propose. I know that Members of this Committee are clear on them, but this is an opportunity for me to put on the record the Government’s stance because I know that many people are interested in them.

Adoption panels will continue, as now, to provide independent scrutiny in cases where parents have relinquished their child for adoption, and in cases where a child has been taken into care and parents have then consented to the child being adopted. That is because in cases where the birth parents support the decision that the child should be adopted, there is no further role for the courts and so no independent scrutiny of the local authority’s decision; therefore, we can clearly see the need for panels. That means that the adoption panel function is not removed in any circumstances where the case is not scrutinised by the courts, and only in cases where there is parental consent to the adoption under Section 19 of the Adoption and Children Act 2002.

The regulations do not propose to change the role of adoption panels in assessing the suitability of prospective adopters, or in the matching of children with approved prospective adopters. These will continue, and we have an open mind about the future. It is important to say that my honourable friend Mr Loughton is considering whether future changes, including to the size and membership of the panels, would strengthen and speed up the system. He would very much welcome the views of the committee on this in due course.

The change that we are proposing concerns the decision-making process at the point where adoption becomes the plan for a child in care. The amended regulations relate to those cases where a social worker’s recommendation that a child should be adopted need to be scrutinised by the court through the process of a placement order application. In these circumstances we propose that the adoption panel should no longer have a role. Rather than refer the case to the adoption panel, social workers will send their recommendations directly to the decision-maker, an experienced social worker and senior local authority official. If the decision-maker agrees with the recommendation, the local authority will make an application to the court for a placement order.

I have been asked why the Government are proposing this change, and we have talked about duplication and delay. In cases where the court will need to consider an application for a placement order, the role of the adoption panel is duplicative. I am grateful to the noble Baroness, Lady Jones of Whitchurch, for making the point that if we have a system in which we have confidence, having just one system is desirable in principle. The courts see the same evidence as adoption panels. They provide independent scrutiny of the local authority’s adoption plan. Having adoption panels and the courts both providing independent scrutiny seems unnecessary and, indeed, a potential cause of delay. As noble Lords know, that was the conclusion of the family justice review. The recommendations of that review were widely consulted on and, over time, they have received broad support. The review heard evidence from the judiciary, local authorities and the Family Justice Council which showed that children’s cases were being delayed while the courts waited for adoption panels to make their recommendations. Although there were respondents to the review who opposed the recommendation to remove panel scrutiny of these cases, the majority of respondents recognised that detailed court scrutiny was a sufficient safeguard.

We have discussed whether panels add delay. The noble and learned Baroness, Lady Butler-Sloss, referred to the Ofsted survey and questioned whether there is any evidence for this. When the family justice review looked at this, it concluded that it does. A judgment published last year by Her Honour Judge Lesley Newton highlighted that the adoption panel had added 83 days to the process. I recognise the point that has been made forcefully by noble Lords that there is conflicting evidence around this, and therefore the core argument that the Government would make is around duplication. However, we have also concluded that there is evidence of delay as well.

I want briefly to put these changes into a historical perspective. I hesitate slightly to do so because again I know that there are noble Lords here who have helped to construct these systems over many years. Adoption panels have been part of the decision-making process for the best part of 30 years now. They were originally introduced in 1984 because of the changing face of adoption. The majority of children being adopted were no longer babies; rather they were older or disabled children with more complex needs. The panels certainly provided independent scrutiny of adoption agencies’ plans. Before the Adoption and Children Act 2002, an adoption agency could place a child with the prospective adopters without any intervention by the court. The court’s role was limited to making the adoption order which the prospective adopters, then as now, would apply for after the child had lived with them for at least 10 weeks. However, the 2002 Act changed how local authorities could place children for adoption. A major change was that they could no longer place a child for adoption unless they had the authority to place either as a result of parental consent or under a placement order made by the court. The courts are therefore involved much earlier in the process if the birth parents will not consent to placement for adoption or there are pending care proceedings. Having the court’s early agreement to the adoption plan and sorting out consent before the adoption order stage is better for children and their adoptive families. It reduces the risk that a court would not make an adoption order.

It is arguable that the function of the adoption panel covered by the amendment regulations could or should have been removed in December 2005 when placement orders came into force. It was at that point, when the change was made, that the element of duplication came into the system. A decision was not taken then, but we think that now is a sensible time to address it.

We have also touched on the issue of independent scrutiny. Noble Lords are rightly concerned that we should retain sufficient independent scrutiny of what is a momentous decision about a child’s life. We are confident that this will remain the case. There will be independent scrutiny in all cases, whether from the adoption panel or from the court. In all cases, the local authority decision-maker will hear the views of those with specialist expertise, for example, on medical or mental health issues, before reaching their decision.

We have also heard evidence today from some noble Lords who believe that the courts do not necessarily have the time, the expertise or the opportunity to reflect on children’s cases in the way that panels do. We think it is the case that the courts have the expertise they need. In making decisions on complex issues, they consider the information provided by experts. They do not simply rubber-stamp the local authority’s adoption plan or recommendation of the children’s guardian. Before the court can make a placement order, it must be satisfied either that the parents have consented or that the child’s welfare requires that parental consent should be dispensed with. The court must also be satisfied that the child is suffering or is likely to suffer significant harm. In making its decision, under the 2002 Act, the court must give paramount consideration to the child’s welfare throughout its life and must apply a list of criteria concerning the child’s welfare.

Therefore, the court will continue to play its vital role. The work of the social worker and the adoption team in drawing together and assessing the evidence will not change, nor will their work be added to because they no longer have to seek a recommendation by the adoption panel before decisions are made. We would argue that a simple system with no duplication where the local authority decision-maker is fully accountable for the recommendation that he or she puts forward to the court will function better. Good decisions will be taken quickly in the best interests of children.

I was asked a number of detailed questions. I shall do my best to respond to the main points, but if I fail to answer some of the more specific points, I will follow them up. There was a recurring theme of what the impact would be for local authorities and the burden on the decision-maker. I was asked by the noble and learned Baroness, Lady Butler-Sloss, what advice and support the department would give to local authorities. Alongside the regulations, we have published amended statutory guidance to help local authorities and other professionals understand how we expect the change to work in practice.

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On pulling the information together and whether that will be too burdensome for the decision-maker, the agency adviser should maintain an overview of the quality of the agency’s reports to both the panel and the decision-maker. The social worker who currently prepares the reports for the panel will provide them directly to the decision-maker instead. That should not be more burdensome but the change is about making the decision-maker more directly and clearly accountable.

The noble and learned Baroness, Lady Butler-Sloss, asked about the role of the IRO. Some strengthened regulations came into force in April last year to address concerns about the effectiveness of the IRO’s role. Those provisions included setting out the name of the IRO in the care plan, a named IRO being appointed for each child and requiring the IRO to meet the child before review meetings to discuss matters to be considered. Therefore, consideration has been given to that matter but we will continue to reflect on it.

The noble Baroness, Lady Howarth, rightly asked me whether we could make sure that when information is sent to the court, it does not add to any delay. It will be the responsibility of the decision-maker to ensure that that does not happen.

My noble friend Lady Hamwee raised her important concerns about the lack of experience of adoption work among social workers. She makes a good point about that but I am glad to say that we are picking up feedback during the visits that are being made to local authorities as part of the adoption scorecard process that says that the current higher profile of adoption as an issue at national level is raising its profile among managers at a local level. I hope that we shall see that working through.

My noble friend Lord Eccles made an important point about organisations working together and raised concerns about mistrust between various players, including local authorities and the courts. Back in March, my honourable friend Mr Loughton wrote to all local authorities, asking the DCSs to convene meetings with family justice professionals to agree on how they can work together better. He is following that up and we think that it is starting to happen.

The noble Baroness, Lady Jones of Whitchurch, asked about monitoring. How will we monitor these changes to make sure that there is no harmful effect? That is a recurring theme from all noble Lords. We will monitor it partly through Ofsted inspections. A new inspection framework was published for consultation—another consultation—earlier this month. That will allow inspection to focus more clearly than it presently does on the child’s journey through care and adoption services. We will also monitor delay in the system through the new adoption scorecards that we are introducing. They will give us feedback. They are designed to look at the speed of the adoption process and to take contextual data into account, so it will not be a crude measurement.

It is clear from this afternoon’s debate that we share a desire to simplify the adoption process where that is in the best interests of the child. The Government do not contend that speed is the be-all and end-all. A balance must be struck between speed and the interests of the child. However, we believe that these regulations will increase the accountability of the people in the system, remove duplication and, in some cases, help to reduce delay.

I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, for providing us with the opportunity for this important debate and for me to set out the Government’s position and put on record the views of my honourable friend Mr Loughton, who is driving this whole programme forward. I hope that the noble and learned Baroness will have felt his commitment from looking at the chart on his wall about the complicated adoption process and how he is trying to work through it. She knows of his commitment to making progress. He certainly wants to benefit from the deliberations of the Committee, so I am grateful that they have been aired. I hope that I have addressed some of the Committee’s concerns this afternoon.

[Baroness Butler-Sloss]

My Lords, I thank all the speakers. I am particularly grateful to my fellow members of the adoption committee for having come this afternoon on the last day of term, and to all those who have spoken. I am also very grateful to the Minister for his thoughtful response. I do not at all doubt the commitment of the Minister in the other place to adoption. I very much admire his commitment. I am just not entirely sure that he and the noble Lord the Minister have totally taken on board my major concern, which is about independent scrutiny of the work of the decision-maker. I am not certain that the decision-maker will, pulling everything in together, have quite the same opportunities as somebody else who can advise, assess and monitor. Will the team behind the Minister look at whether they accept that there is a potential gap, and how they might give advice to the local authority on that potential gap, which may not be entirely met by the decision-maker, who will end up with a greater burden?

The points made by Coram, in particular, about the task of the decision-maker—the Minister will see this when he gets the Coram written evidence—are very interesting. I would be grateful if he would reflect, with those behind him, on whether the removal of this particular work of the panel will leave something that will need to be filled at some stage. The inspection by Ofsted will be absolutely crucial. I hope any inspection by Ofsted will move into that area and not simply look at issues of delay, but look more keenly. If not Ofsted, somebody will have to look at it because something is being lost, although I understand the reasons why the Government are doing it. Having thanked everybody very much, I beg leave to withdraw the Motion.

Motion withdrawn.

Committee adjourned at 3.37 pm.