Press Regulation (Communications Committee Report)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank the noble Lord, Lord Best, for securing this important debate following the publication of the Communications Committee’s report in March last year. I note the lapse of time before this debate could be held but nevertheless it is important that it has taken place. The matter of press self-regulation remains a fiercely debated matter, and it is pertinent timing for us to have an opportunity today to discuss these issues.
A free press is an essential component of a fully functioning democracy and it is vital that the self-regulatory system allows the press to operate independently and carry out its crucial function. My noble friend Lord Lexden observed that we have a diverse, irreverent, bold press which is woven into our freedoms and liberty, and that is so important. It is a point that was echoed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble Lord, Lord Lester of Herne Hill. Moreover, as the noble Baroness, Lady Jones, concluded her remarks, she spoke of the need for a media that will tell the truth. However, that poses the question: whose truth? That becomes a real issue if government regulation goes too far, so it is important to look at this in context.
Since the Leveson report was published four years ago we have seen significant changes to the press self-regulation landscape. Indeed, even since the report of the Communications Committee was published there have been notable changes, as noted by the noble Lord, Lord Best, in his opening observations. In March 2015, as the report sets out, IPSO had only recently been established with around 70 members while Impress was still in development. The Press Recognition Panel was recently set up and it will be almost a year until the self-regulator applies for recognition under the new framework envisaged by Sir Brian Leveson. Today we are in a wholly different place. Impress was granted recognition by the Press Recognition Panel in October, making it the first and only recognised self-regulator under the new system. The Press Recognition Panel spent many months assessing the application from Impress against 29 criteria set out in the royal charter. This included three public calls for evidence and the panel published its report regarding its decision on 21 November.
Meanwhile, IPSO has also developed since its creation in 2014. It is trialling a pilot arbitration scheme that has already been referred to which is likely to conclude next summer, and a consultation on the editors’ code of practice was recently launched by the code committee. It also, as the noble Lord, Lord Lester, observed, commissioned Sir Joseph Pilling to carry out a review of its independence and effectiveness which reported in October, and indeed this was also referred to by the noble Lord, Lord Lipsey. I take issue with the suggestion from the noble Lord, Lord Strasburger, that there was any element of a sham about that process. With respect, that appears to be a misplaced suggestion.
We of course accept that IPSO has publicly stated that it will not seek recognition from the Press Recognition Panel. The background to that lies in some of the observations made by the noble Lord, Lord Lester, about whether this would be perceived to be a government-controlled form of regulation.
I turn to the system of incentives developed to encourage publishers to join a recognised self-regulator. There were, of course, the exemplary damages provisions, which came into force in November 2015, and, as the House knows, Section 40 of the Crime and Courts Act 2013 made provision for cost clauses, which have not been commenced. Unlike the exemplary damages provisions, the costs provisions clauses in the Crime and Courts Act 2013 did not have a specific commencement date.
Section 40 has been discussed extensively in this House at various times. It was designed to incentivise newspapers to join a recognised self-regulator. It contains two presumptions, with which we are familiar. First, if a publisher that 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. Secondly, if a publisher that 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.
As we have heard, Members of this House argue that commencement of Section 40 will bring substantial benefits for ordinary citizens by providing improved access to justice for victims of press abuse, as well as providing protections for journalists against the threat of high-cost libel claims. However, we have also heard from others, such as my noble friend Lord Lexden, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Lord, Lord Lester, and the noble Baroness, Lady D’Souza, that commencement of Section 40 could have a chilling effect on the press, particularly local titles, which may be threatened with legal action by those wishing to suppress stories that are in the public interest. They may consider it safer not to publish those stories.
It is interesting that in the course of this debate a number of your Lordships used terms such as “stalemate”, “uncertainty”, the “need for compromise”, and, “Is there a better way?”—a comment made by the noble Lord, Lord Lipsey. Indeed, the noble Baroness, Lady Hollins, posed the question of why there is failure to produce a resolution at this stage. It is because of the continuing debate and the increasing recognition that there must be a middle way and room for compromise, as observed earlier.
It is because of these strong views on both sides of the debate that the Government decided to launch a consultation in November to inform next steps in this area. As the Secretary of State for Culture, Media and Sport set out in her Oral Statement regarding the consultation, and again while giving evidence to the Communications Committee last week, this is an appropriate time to consider this incentive given the recent changes that have taken place in the press self-regulation landscape—changes that have been monitored by someone as independent as Sir Joseph Pilling.
The consultation presents five options regarding Section 40, ranging from full commencement through to full repeal. The consultation also asks for evidence regarding the impacts of these options on both the press industry and claimants. The Government are keen to hear views and evidence regarding the extent full commencement would have on incentivising publishers to join a recognised self-regulator. We do not shy away from that. We seek informed opinions from all sides in this difficult and demanding debate.
The noble Lord, Lord Lester, raised concerns around Section 40, its compatibility with Article 10 of the European Convention on Human Rights and the issue of freedom of expression. The Government remain confident that Section 40 is consistent with human rights legislation. However, we encourage those who have a contrary view to contribute to the consultation and to the debate in order that this matter may be bottomed out. I will make one observation. When the Minister certified the Bill for its introduction, there was of course no Clause 40—he might be forgiven for that at least. However, Clause 40, which was the product of an inter-party agreement, was moved as a government amendment. We continue to be of the view that it is convention-compliant.
Leveson 2 has been raised. Part 2 of the Leveson inquiry will be the subject of the consultation that is going forward. The consultation asked respondents whether the inquiry should continue either with the original or amended terms of reference, or indeed be terminated. It also asked for views and evidence regarding which terms of reference have already been covered by part 1 of the Leveson inquiry and by the criminal investigations—which, as the noble Baroness, Lady Jones, said, have already been concluded. Therefore, that matter remains open for the purposes of the consultation.
Lord Lester of Herne Hill
Could the Minister write to those who have taken part in the debate without disclosing legal advice but nevertheless explaining how the Government can say that Section 40 complies with free speech and the convention?
Lord Keen of Elie
I am certainly prepared to arrange to write a short letter explaining the Government’s view that it does comply and why we consider that it complies without going into a detailed legal analysis, if the noble Lord would regard that as sufficient at this time. As I said earlier, I would welcome his contribution to the consultation process and he might wish to reciprocate by responding not to me directly but in the consultation with his own expanded views as to why he does not consider that Section 40 complies. As the noble Baroness, Lady Jones, observed, Sir Brian Leveson himself, a most distinguished judge, appeared to be of the view at a very general level that such a provision would comply with the convention.
I turn to one or two of the additional observations made by noble Lords. The noble Lord, Lord Best, in a clear statement outlining the background to his committee’s report, himself observed that matters were far from resolved—a view with which the noble Baroness, Lady Hollins, concurred. He used the term “stalemate” with regard to the present position, which is why we have sought to bring about this consultation period. It is the one way to resolve such a stalemate.
My noble friend Lord Inglewood came up with a novel suggestion of tying in the complaints procedure to the operation of VAT. I have to confess that that does not strike me immediately as a use of Occam’s razor. The idea that we should merge our regulatory system of value added tax with press regulation appears at first to be a recipe for further potential confusion and difficulty—but I note his point about the various ways in which a cat can be skinned and of course we will give that further consideration.
I cannot accept the way in which the noble Lord, Lord Lipsey, suggested that the Government had spat in Parliament’s face with regard to Section 40. I simply do not accept that characterisation. He asked whether there was a better way or a compromise. There may be a better way; that is the purpose of the consultation. It is something that we must seek to bottom out. The noble Baroness, Lady Hollins, observed that there had so far been a failure to produce resolution—which is why, again, we consider it important that there should be this consultation period.
The noble Baroness suggested that the Government had intervened to suspend commencement of Section 40. That is not factually correct. There was never a commencement provision in respect of Section 40, unlike in respect of the provisions of the Act with regard to exemplary damages. The right reverend Prelate the Bishop of Chelmsford also referred to compromise. Again, that is why we are proceeding down the route of consultation at this stage.
I have already referred to the observations of my noble friend Lord Lexden, but they are worthy of repetition. He said that we have a “diverse, irreverent, bold” press that is woven into our freedoms and our liberty. That must never be forgotten.
The noble Lord, Lord Strasburger, raised the question of the recommendations in Leveson at paragraphs 83 and 84. I just remind him that paragraph 29 of the consultation document states:
“The Report”—
meaning Leveson—
“made recommendations on the relationship between the press and politicians. The Ministerial Code was amended and, as a result, all Ministers (as well as Special Advisers and Permanent Secretaries) must now disclose details of all meetings with media proprietors, editors and senior executives wherever they take place. This information is published on a quarterly basis”.
I add only that I take issue with the suggestion from the noble Lord, Lord Strasburger, that IPSO is to be regarded as some form of ploy. With the greatest respect, that does not acknowledge the work of Sir Joseph Pilling in reviewing independently the setting up and operation of IPSO. Albeit it has not gone as far as we may have wished, or as many would have wished, and it may not go as far as the regulatory regime would at present require, nevertheless it has moved and at least in the correct direction.
Finally, I simply note that as we go forward I acknowledge the observation of the noble Baroness, Lady D’Souza: you cannot take democracy for granted. You cannot take the freedom of the press for granted, either. When we speak of “truth”, we must again pose the question of whose truth we refer to. This Government are determined that a balance be struck between press freedom and the freedom of the individual. Those treated improperly must of course have redress. Likewise, politicians must not seek to stifle the press or prevent it doing legitimate work such as holding us to account when required. The conclusion of the Communications Committee report makes clear the importance of finding an adequate balance between the right to privacy and freedom of expression. I thank the committee for its ongoing work in this important area.
Lord Strasburger
I need to correct an error that the Minister made in his speech. He described my speech as being critical of the Pilling review and calling it a sham. Hansard will show I made no reference to the Pilling review so it is rather unlikely that I called it a sham.
Lord Keen of Elie
With respect to the noble Lord, he said that IPSO was a ploy and that the Government’s consultation was designed for only one response and was a sham, and he referred to the sham regulator IPSO—as Hansard will show.
Lord Strasburger
My Lords, I did not make any reference to the Pilling review.