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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Secretary of State for Culture, Media and Sport in the other place:
“Mr Speaker, with your permission, I wish to make a statement on matters relating to the Leveson inquiry.
A free press is an essential component of a fully functioning democracy, which is why it was a manifesto commitment of this Government to defend a free press. The press should tell the truth without fear or favour and hold the powerful to account. However, that freedom has in the past, we now know, been abused. We know that some parts of the press have ignored their own code of practice and the law. I have met victims of illegal and improper press intrusion, some of whom have suffered immense distress.
In July 2011, the coalition Government announced an inquiry into the role of the press and the police in phone hacking and other illegal practices in the British press. Lord Justice Leveson was appointed chair of the inquiry. Part 1 of the inquiry examined the culture, practices and ethics of the press. It considered such matters as whether the press needed a different form of regulation and how the press interacted with the public, the police and politicians. Sir Brian Leveson heard evidence from more than 300 people, including some of those who had been affected by the most egregious press behaviour.
On 29 November 2012, the Leveson inquiry published its report on part 1. It contained 92 recommendations, the majority of which have been acted upon and are being delivered. Part 2 of the inquiry, which has not yet begun, would further examine wrongdoing in the press and the police.
Following a cross-party agreement, a royal charter established the Press Recognition Panel, which began operating in November 2014. As stated on its website, the panel’s purpose is to ensure that any press self-regulator is,
“independent, properly funded and able to protect the public, while recognising the important role carried out by the press”.
Since September 2015, the panel has been taking applications from regulators which are seeking recognition.
Alongside the royal charter, Section 40 of the Crime and Courts Act 2013 was designed to incentivise newspapers to join a recognised self-regulator. Section 40 has passed into law but remains uncommenced. This is one of two incentives. The other, relating to exemplary damages, came into effect on 3 November 2015. A self-regulator applying for recognition must meet the specific criteria set out in the royal charter, including providing a system of low-cost arbitration that replaces the need for court action.
Section 40 contains two presumptions: that if a publisher which is a member of a recognised self-regulator loses a relevant media case in court, it does not have to pay the winning side’s costs; and that if a publisher which is not a member of a recognised self-regulator wins such a case in court, it would have to pay the losing side’s costs as well as its own. Each element was intended to encourage the press to join a recognised self-regulator, through a legitimate rebalancing of the normal rules on costs.
It has hitherto been the view of the Government that as we wait for a number of elements of the new self-regulatory regime to settle in—such as the exemplary damages provisions of the Crime and Courts Act, the press developing an effective form of voluntary self-regulation and self-regulators applying for recognition—the time has not yet been right to commence Section 40.
However, the panel has recently recognised its first self-regulator, the Independent Monitor for the Press, known as Impress, which currently has around 50 members. Meanwhile, the Independent Press Standards Organisation, known as IPSO, regulates more than 2,500 publications, but has been clear that it will not seek recognition from the panel.
We think the time is right to consider Section 40 further. It has also become apparent that the final criminal case relating to the Leveson inquiry is entering its final stages. We therefore think this is also an appropriate time to start to consider next steps on part 2 of the inquiry. Many of the issues that part 2 would have covered have been addressed in the last five years. Three police investigations—Operations Elveden, Tuleta, and Weeting—have investigated a wide range of offences. A clear message has been sent to all police officers and public officials that receiving payments for confidential information will not be tolerated and will be dealt with robustly. The Metropolitan Police Service has introduced new policies on whistleblowing, gifts and hospitality and media relations.
There was also a degree of subject matter overlap between parts 1 and 2 of the Leveson inquiry. For example, the inquiry reviewed the Met Police’s initial investigation into phone hacking and the role of politicians and public servants regarding any failure to investigate wrongdoing in News International. Part 1 made numerous recommendations, all of which are being addressed by the police, Her Majesty’s Inspectorate of Constabulary, the Independent Police Complaints Commission and the College of Policing, where they relate to them.
Given the extent of these criminal investigations, the implementation of the recommendations from part 1 of the Leveson inquiry and the cost to the taxpayer of the investigations and part 1—£43.7 million and £5.4 million respectively—the Government are considering whether undertaking part 2 is still in the public interest. We are keen to take stock and seek the views of the public and interested parties—not least those who have been the victims of press abuse. We will also formally consult Sir Brian Leveson on the question of part 2 at the appropriate time, in his role as inquiry chair.
I can announce that today we are launching a public consultation, inviting comments on both Section 40 and part 2 of the Leveson inquiry from organisations affected by it and from the public. It will run for 10 weeks from today, 1 November, until 10 January 2017. This is laid out in a consultation document entitled Consultation on the Leveson Inquiry and its Implementation, published on GOV.UK, which I am also depositing in the Libraries of both Houses. I have met Sir Brian Leveson and spoke to him again this morning. I will write to him formally as well. I am extremely grateful for all the work that he and his team have done to get us this far.
The Government are determined that a balance be struck between press freedom and the freedom of the individual. Those who are treated improperly must have redress. Likewise, politicians must not seek to muffle the press or prevent it doing legitimate work, such as holding us to account, and the police must take seriously their role in protecting not only their own reputation but the people they are meant to serve.
This is the balance we wish to strike, and this consultation is the most appropriate and fairest way of doing so. I commend this Statement to the House”.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank the noble and learned Lord for repeating the Statement by the Secretary of State in another place and welcome him to the Dispatch Box. I hope it will not be a single guest appearance on this occasion.
We can judge from its opaque title and surprising appearance that the Statement, “Press Matters”, has very little to do with the substance of either the commencement of Section 40 of the Crime and Courts Act 2013 or announcing a date for Leveson 2 to commence. Its purpose seems to be to muddy the waters around the remaining stages of the Investigatory Powers Bill, which is about to be debated in the other place.
Surely the right thing to do is to honour the Government’s commitment to the victims of press intrusion and harassment. Let us remind ourselves what the test is for this process. The former Prime Minister summed it up on 14 June 2012 when he said, having met the Dowler family in Downing Street:
“It’s not: do the politicians or the press feel happy with what we get? It’s: are we really protecting people who have been caught up and absolutely thrown to the wolves by this process? … that’s the real test”.
Labour supports a free press as essential to democracy. We do not support any state control of the press. It is 1,324 days since all parties agreed to implement the recommendations of the Leveson inquiry in full. The Leveson inquiry looked into press behaviour following the public outcry over illegal phone hacking and after it emerged that there had been many victims of press intrusion.
A key recommendation of the report was the creation of a,
“genuinely independent and effective system of self-regulation”.
The new system was debated in Parliament and received unanimous cross-party agreement. It involved creating the Press Recognition Panel by royal charter in October 2013 as an independent body to oversee press regulators. Has the Minister read the recent annual report of the PRP? If so, he will be aware of what it says about the need for Section 40 of the Crime and Courts Act 2013 to be implemented. Does he agree with the chair of the PRP, David Wolfe QC, who says:
“There has been a significant delay in doing this, despite the Act being enacted nearly four years ago. Commencing section 40 will strengthen the public’s access to justice. Everyone agrees that politicians should not interfere with the running of the press, but paradoxically, the failure to commence section 40 has kept a political presence in place. The new system intended by Parliament is not in place, and the public interest has not been safeguarded in the way that was expected”?
On Leveson 2, is the Minister aware that one of the original terms of reference given to Lord Justice Leveson was:
“To inquire into the extent of the corporate governance and management failures at News International and other newspaper organisations and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International”?
This part of Leveson was delayed—as the Minister knows because he has been answering my questions on this matter—until all outstanding court cases are dealt with. Can he confirm that that is imminent?
As my right honourable friend the shadow Secretary of State for Culture, Media and Sport said in the other place, Leveson 2 is the investigation into how the cover-up of phone hacking was conducted, but what the Government are in effect announcing today is a consultation on whether the original cover-up should be covered up. This is shameful. We need the immediate implementation of Section 40 of the Crime and Courts Act 2013 and we want an early date for the second part of the Leveson inquiry. We do not need a faux consultation on these matters. If the Government are to proceed on this route, I would be grateful if the Minister could explain in some detail what elements of the recent police investigations referred to in the Statement—the Hillsborough inquiry and its findings on misleading police statements to government officials and subsequently newspapers; the case of Mazher Mahmood, who perverted the course of justice to secure his scoops and left scores of previous convictions unsafe; senior police resignations; the new revelations on the Daniel Morgan case; and what we have just heard about Orgreave—persuade him that further consultations are not now required.
We must not miss this historic opportunity. We must ensure that what the press did to the Dowlers, the McCanns, the family of Abigail Witchalls and others who suffered so terribly, can never happen again.
Lord Paddick (LD)
My Lords, I too thank the noble and learned Lord for repeating the Statement. I must declare an interest, in addition to being a victim of phone hacking by the press. In 2002, I was the subject of a kiss-and-tell story on the front page and eight inside pages of a Sunday tabloid newspaper. Many of the allegations were untrue and the rest were a massive intrusion into my private life by a former partner whom I had lived with for four years. He was paid £100,000 for the story. In the absence of an effective and independent press complaints system, my only course of action was to sue the newspaper and although I was able to secure a conditional fee agreement, many ordinary people are not. Lawyers acting for the newspaper tried every trick in the book to get me to concede, in which case I would have been liable for both my own and the newspaper’s costs and I would have been made bankrupt. If the paper had not admitted libel and agreed a settlement a week before the case was due to go to trial, and had I lost the action, I would have lost my home.
If newspapers do not sign up to an independent, royal charter-compliant, press complaints system that the public can have real confidence in, the press must be prepared to cover the costs if their refusal to sign up results in complainants having to take action through the courts. This was a cross-party agreement, reached at considerable effort and cost, resulting in a royal charter that the Government are preparing to consign to the dustbin. Not only that, they are preparing to ditch detailed scrutiny not only of the matters detailed by the noble Lord, Lord Stevenson of Balmacara, but of the relationship between the police and the press—issues that were to be covered in Leveson 2—despite such recent cases as that involving South Yorkshire Police, the BBC and Sir Cliff Richard.
If the Statement is designed to head off amendments to the Investigatory Powers Bill currently being considered, does the Minister not agree that it adds fuel to the fire, rather than dampening things down?
Lord Keen of Elie
My Lords, I begin with the observations of the noble Lord, Lord Stevenson of Balmacara. A consultation will not obfuscate, it will bring clarity—and that is its aim. Let us remember that the events with which we are dealing have been the subject of a further five years of development in policing and the press.
The Press Recognition Panel’s report is a useful reflection of how the recognition system is operating, and the Government will, of course, be looking at its conclusions in more detail in the course of the consultation process. Let us be clear: no decision has been made on this matter, which is why it has been set out for the purposes of consultation.
With regard to the observations concerning the police, let us remember that these matters were addressed in Part 1 of the inquiry. Sir Brian Leveson thoroughly reviewed the initial investigation of the Metropolitan Police Service into phone hacking—Operation Caryatid —and the role of politicians and public servants in any failure to investigate wrongdoing at News International. He was satisfied that the officers who worked on that operation approached their task with complete integrity, and that the decision made in September 2006 not to expand the investigation was justified.
I will not comment on the individual cases cited by the noble Lord, Lord Stevenson. It would not be appropriate to do so. I understand the observations of the noble Lord, Lord Paddick, about his own experience of litigation, the uncertainties of litigation and where costs should lie. That is a vexed issue. It affects both parties to a litigation, whether they win or lose. That is why, again, it is appropriate that this should be the subject of further consultation at this stage. Nothing has been consigned to any dustbin, either the dustbin of history or the dustbin of any prior interparty agreement. Again, I stress that is why we are proceeding with this consultation process. We will report thereafter as soon as we reasonably can.
Baroness Hollins (CB)
My Lords, the Statement makes clear that what underpins the two-way Section 40 cost protections is low-cost arbitration, which the charter says must cost no more than £100 for the claimant. However, IPSO’s pilot arbitration scheme costs about £3,000, which hardly anybody would be able to afford. Furthermore, Section 40 retains a discretion for the judge when making penalty costs awards to ensure that there is no injustice. Does the Minister accept that Section 40 deserves implementation and review and not to be kicked into the long grass, and that IPSO and its arbitration scheme are both woefully inadequate?
Lord Keen of Elie
With great respect, a consultation process is not a means of kicking anything into the long grass. This consultation process will proceed for a period of 12 weeks during the winter, at which time the grass does not grow.
Lord Davies of Stamford (Lab)
I put it to the noble and learned Lord that a decision not to proceed with Leveson 2 would be universally regarded as an abdication by the Government and as a surrender to the pressure of the press barons, with all the rather sinister connotations of conflict of interest which everybody will derive from that. We had all hoped that there might have been some improvement in the culture of the press since the appalling allegations that came out in Leveson 1 and in the Brooks and Coulson trials. I am not sure that there has been much improvement. For example, during the referendum campaign earlier this year, there were some egregious cases. I gather the Daily Mail has now accepted that the entirely bogus figures it produced, purporting to show that immigrants had a much higher crime rate than the rest of the population of this country—an irresponsible and nasty invention—were, indeed, exactly that: entire invention. However, to the extent that there has been any improvement in culture, will that not be very damagingly reversed if it is seen that the Government are now running away from the field?
Lord Keen of Elie
No decision has been made with respect to Leveson 2. That is the purpose of the consultation. Because of the consultation, there is no question of the Government running away from anything. With regard to an earlier observation, I referred to a consultation period of 12 weeks but, in fact, it is only 10 weeks. I correct myself to the House.
Lord Lexden (Con)
Are the Government firmly committed to taking full account of the concerns and interests of our immensely important regional and local press, which will bear the brunt of Section 40? In this connection, will it not be particularly important to listen to the views of local editors in Northern Ireland, where the royal charter does not even apply, illustrating the legal confusion which has now arisen?
Lord Keen of Elie
The Government have already heard from representatives of the local press, who have expressed their concerns with regard to the implementation of Section 40 and the adverse impact it could have on them. It is because of these considerations, among others, that the Government have thought it appropriate to have this short, but effective, consultation.
Baroness Hussein-Ece (LD)
My Lords, I know the noble and learned Lord said he did not want to go into individual cases but I would like to raise the issue of IPSO’s credibility following the case of Fatima Manji, the Channel 4 presenter and journalist, who was attacked by Kelvin MacKenzie, the former editor of the Sun, who said that she should not present the news in the wake of the terrible tragedies in Nice because she happens to cover her head with a hijab. He said it was inappropriate that she should present the news in that way. She and Channel 4 complained to IPSO and her case was not upheld. The very next day Trevor Kavanagh, a board member of IPSO—and let us remember the “I” stands for independent—used his political column to attack Fatima Manji for daring to make a complaint. I was one of the many parliamentarians who signed a letter on this case and sent it to IPSO. We have not heard back. How can we have confidence that this body bears up its name and is independent and upholds standards when we have board members of IPSO prepared to attack complainants in their columns?
Lord Keen of Elie
The noble Baroness is right to anticipate that I am not going to comment on an individual case. The conduct of IPSO may be the subject of criticism but it has not applied for, or been granted, registration under the present scheme.
Lord Faulks (Con)
My Lords, the Statement quite rightly acknowledges the balance that has to be struck between freedom of the press and the very important matters that come under the heading of “freedom of the individual”. Does the Minister agree that it is important that newspapers that are sued—whether regional or national—should be able to defend themselves with reasonable ability? If they are not only going to face the penalties in Section 40, but also exceptionally be liable to have conditional fees brought against them, this may result in an uneven playing field. Will the Minister confirm that the future of the conditional fee regime as regards libel actions will be considered when the consultation takes place?
Lord Keen of Elie
The Government have set no limits on the consultation process so far as costs are concerned. Clearly, the question of conditional fees will arise in the context of whether Section 40 should be brought into force. The noble Lord is quite right that it is important, while bearing in mind the victims of press abuse, to ensure a fair, acceptable and level playing field in issues between the press and powerful individuals. The press should not be coerced by the issue of cost into not reporting in a fair, open and effective manner.
Lord Beecham (Lab)
My Lords, while it might not be unreasonable for the noble and learned Lord not to give a view on the matter raised by the noble Baroness at this stage, will he confirm that the Government will at least take it into consideration before they reach any conclusion as a result of the consultation?
Lord Keen of Elie
I have no doubt that that will be taken into account, as will the general conduct of IPSO, when it comes to determining and reporting on the terms of the consultation itself.
Lord Wallace of Tankerness (LD)
My Lords, the noble and learned Lord acknowledged that the work that had gone into the cross-party agreement and the subsequent royal charter was intended to set up a body and a mechanism as far removed from political interference as possible to ensure press freedom. By refusing to commence Section 40 and now by having a consultation on the matter, have the Government not brought it right back into the field of political play, undoing all the work done to try to remove political interference from this very important area for those of us who want to see freedom of the press?
Lord Keen of Elie
I cannot accept the observations made by the noble and learned Lord. The Government have delivered the cross-party agreement by establishing the Press Recognition Panel by royal charter and legislating for the incentives in the Crime and Courts Act 2013. It is now right to consult further on the specific areas of Part 2 of the Leveson inquiry and Section 40 given the time that has elapsed since the Leveson inquiry was set up and the changes that have taken place. I do not believe that we are simply bringing this back into the political arena; we are addressing the reality of change that has occurred over the past five years.
Lord Cormack (Con)
I thank the Government—which I do not always do—for giving this extra time to look at the points raised, specifically by my noble friends Lord Lexden and Lord Faulks. There is not a single Member in your Lordships’ House who is not conscious of the enormous contribution of the local press and how important it is that its freedom and future should not be jeopardised further at a time when it is struggling for survival.
Lord Keen of Elie
I entirely concur with the observations of my noble friend.
Lord Inglewood (Con)
My Lords, I declare an interest as an ex-chairman and a current non-executive director of a local newspaper. I recognise that there is still considerable disquiet right across the political spectrum about the matters being discussed. I therefore welcome a second look at all these matters. I also declare an interest as a farmer. My noble and learned friend said that during the period of consultation the long grass cannot grow, but the consultation period ends in the spring, when the long grass starts to grow again. I am concerned that it will be allowed to grow and grow. Can he confirm that the matter will be taken forward expeditiously thereafter?
Lord Keen of Elie
With respect to the observations of my noble friend, I point out that by the time this consultation ends it will not be spring in Scotland.