Anonymity (Arrested Persons) Bill [HL]

(Limited Text - Ministerial Extracts only)

2nd reading (Hansard): House of Lords
Friday 1st March 2019 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I congratulate the noble Lord, Lord Paddick, on introducing the Bill, which is on an important topic. I thank him for congratulating me on this being my third Bill this week but of course the noble Lord, and the noble Lord, Lord Kennedy, are also on every Bill I am on. We have had a bit of a marathon week but we are all still smiling, which is the important thing.

The nub of the debate today has been about the balance between press freedom and personal privacy, which is important. The Government are committed to protecting the freedom of the press and recognise that a vibrant and free press plays such a valuable role in our cultural and democratic life. How lucky we are to have our free press. We want to make sure that it continues, with high journalistic standards and with work absolutely in the public interest.

Of course, the right to freedom of expression is not absolute and must be appropriately balanced against the right to privacy. As enshrined in Article 8 of the European Convention on Human Rights, everyone has the right to respect for their private and family life, their home and their correspondence. Any interference with this right must be in accordance with law and necessary in a democratic society and, as such, must be adequately protected. The courts have had to develop privacy law in accordance with Article 8, resulting in the development of the tort of misuse of private information. Information will be considered private where a person has a reasonable expectation of privacy in relation to it, which is a fact-sensitive assessment. Article 10 of the convention, which covers freedom of expression, is often relied on in defence of a privacy claim, resulting in the need for the balancing of Article 8 rights against the Article 10 rights.

The Data Protection Act 2018 puts in place a framework for the protection of data that either identifies or is capable of identifying living people. Within this framework, the privacy rights of individuals are balanced against the legitimate needs of public and private sector organisations to make use of such data, including publishing it. The Act provides the rules by which the processing of personal data for legitimate purposes can take place, and “processing” includes the disclosure or sharing of personal data. To be compatible with the Act’s requirements it must be shown, among other things, that the living individual to whom the disclosure relates has consented to the disclosure, or alternatively, that there is a lawful basis that it is necessary to disclose the data for. The Act and the GDPR set out what those lawful bases are, including the public interest.

Publishing the names of suspects and others who stand accused of wrongdoing is not of itself unlawful unless found to be in contempt of court. Private law actions, however, can be brought against those who disclose such information, based on the right to privacy.

In considering the balance we are trying to achieve, we must remember that there are times when, as the noble Lord, Lord Pannick, said, in a comment almost identical to that made today by the noble Lord, Lord Marks,

“publicity can lead others to come forward with supporting evidence that helps to make the case against the person who is rightly accused. Sometimes this is evidence that the person accused has treated them in the same way. They have not previously come forward because they are fearful that no one would take them seriously. It is only hearing that an allegation is being taken seriously that gives them the confidence to come forward”.—[Official Report, 16/11/16; col. 1454.]

That is an important comment, which the noble Lord, Lord Marks, reflected today. More recently, the #MeToo movement has been a living testament to this.

I see that the Bill in the name of the noble Lord, Lord Paddick, would not necessarily prevent disclosure in these circumstances. It is focused on a specific period—that between arrest and charge—and it allows for restrictions to be lifted in exceptional circumstances.

In this way, it mirrors the framework within which the police operate. The circumstances in which suspects’ names may be released to the media by the police are set out in the authorised professional practice guidance on media relations issued by the College of Policing, as the noble Lord, Lord Paddick, said. It makes clear that the police will not name those arrested or suspected of a crime save in exceptional circumstances where there is a legitimate policing purpose to do so. A legitimate policing purpose may include circumstances such as threat to life.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt the Minister. She mentioned exceptional circumstances, which is of course right about the police guidance, but this exception is not an exceptional circumstance. This is when the Crown Court judge thinks it is appropriate to make the order in the interests of justice and for other reasons. There is no bar of exceptional circumstances. It is for the judge to weigh up the consideration either way and make a decision.

[Baroness Williams of Trafford]

I completely acknowledge that point. I am just trying to give the context of everything that has been discussed in the debate.

The rationale for naming an arrested person before charge should be authorised by a chief officer and the Crown Prosecution Service should be consulted. Noble Lords, particularly the noble Lord, Lord Paddick, will know that in May 2018, the College of Policing updated this guidance to make clear that it also applies where allegations are made against deceased persons.

The Bill would replace this administrative system with a requirement for the chief constable to apply to a Crown Court judge for a direction that reporting restrictions be lifted. This risks adding potentially dangerous delay in fast-moving investigations as well as placing additional burdens on our courts.

It is not clear that this is necessary. On the contrary, the existing arrangements for the police seem to strike a sensible balance. To test whether these changes have had the desired effect, the previous Home Secretary asked Her Majesty’s Chief Inspector of Constabulary and Fire & Rescue Services to carry out a short, targeted review of police adherence to the guidance on media relations, looking in particular at pre-charge anonymity. The inspectorate is undertaking a scoping study this financial year to consider where inspection activity might best be focused.

I recognise, of course, that the guidance on the police releasing suspects’ names does not address the separate concern about the media publishing suspects’ names, which the media may find from other sources, but the media has its own framework for guiding its behaviour. Ofcom’s broadcasting code places detailed requirements on broadcasters to ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality. Robust powers are available to enforce adherence to the code. Statutory sanctions include levelling a fine and, in serious cases, revoking a broadcaster’s licence to broadcast.

For the press, there now exists a strengthened, independent, self-regulatory system. The majority of traditional publishers—including 95% of national newspapers by circulation—are members of IPSO. A small number of publishers have joined Impress, while others, including the Financial Times and the Guardian, have chosen to stay outside either self-regulator with their own detailed self-regulatory arrangements.

IPSO’s editors’ code puts in place robust requirements of accuracy and privacy.

[Lord Kennedy of Southwark]

I think I am correct in saying that IPSO does not meet the standards set by the regulator.

[Baroness Williams of Trafford]

The noble Lord may be correct but I will confirm that in writing.

[Lord Kennedy of Southwark]

I think the Minister is correct, but my point is that I do not see how it can be a robust regulator if it does not meet the standards set by the regulator.

[Baroness Williams of Trafford]

I thank the noble Lord for that point. IPSO requires that any significant inaccuracy or misleading statement be corrected promptly and with due prominence—that is important—and, where appropriate, an apology published. If an individual is unhappy with their treatment by the press, the availability of a compulsory low-cost arbitration service from both IPSO and Impress, which can be used for privacy actions against member publications, can provide easier recourse to justice than going through the courts. The noble Lord, Lord Marks, talked about the Cliff Richard case. Of course, following that, the BBC asked the Government to consider the merits of conducting the review I just talked about to see whether any further action is needed in this area.

I conclude by saying that the Government have considered the Bill carefully and are sympathetic to its aims. There are precedents for placing restrictions on the freedom of the press to report the identities of, for example, victims of sexual offences, but restricting press freedom is a serious matter and we are not yet persuaded that legislating in this instance would be a necessary or proportionate response to the perceived problem. It would certainly be premature to take action ahead of the HMICFRS review, which I hope will enhance our understanding of policing practice in this area. We recognise the importance of debating these issues and we will keep the position under review.