Data Protection Bill [HL]

Baroness Hollins Excerpts

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, I completely concur with that last sentiment. I hope we will not have a long debate this afternoon. I hope we will accept what the other place has said, and I hope we will therefore behave entirely constitutionally. I have high regard for the noble Lord, Lord McNally, and he knows that is genuine. However, I urge him, as the constitutionalist he is and I know him to be, and as the man who was such an effective spokesman for the coalition Government, to realise that we have come to the end of the road here. This House has asked the other place to think again. I did not want it to do it once more last week, but this House did, and by a fairly significant majority. However, 25 May looms, and it is important that this Bill gets on to the statute book. That does not mean that the issues raised by the noble Lord, Lord McNally, and my noble friend Lord Fairfax—in a fairly blistering opening to his speech—cannot be returned to again. Many of us have thought that this Bill was not the right one on which to hang these amendments. But again, that is over—we have had that debate. I hope now that we can proceed quickly to a decision, but that we will not need to do so in the Division Lobbies. I appeal to the noble Lord, Lord McNally, whom I regard as a friend. He said his piece very effectively, but I hope he will not press the amendment.

[Baroness Hollins (CB)]

My Lords, I have been proud to support the completion of the Leveson public inquiry, not just for the benefit of past victims, including my family, but mainly to prevent future victimisation. I make it quite clear that although I am disappointed, I reluctantly accept the decision of the other place that it does not wish to proceed with and complete a public inquiry. However, some of the misrepresentations about my amendment that were made in the other place were quite disappointing, and some speakers remained in denial about the continuing bad behaviour of some elements of the national media. So, to my surprise, since last week’s vote I have been approached by some Members from the other place who voted with the Government, to ask me not to give up.

Some noble Lords believe that my amendments have secured real progress in holding the press to account through the new government amendments. I have a more guarded response. I am very interested in the amendment in the name of the noble Lord, Lord McNally. It would prevent state interference in press regulation and appoint a truly independent reviewer, and would restore the place of the Press Recognition Panel—the PRP—without the Government directing it. I look forward to due consideration by the Minister of that suggestion.

What people want is an apology and a promise that it will not happen again. As a victim, a mother, a grandmother and a psychiatrist, I try to put people first. Instead, it seems that the focus is on money, with promises that the media will engage with IPSO’s low-cost arbitration scheme, which is just one of the 29 other equally important Leveson criteria for an effective regulator. In addition, it appears that the proposed review in four years’ time is being done in secret and with no clear criteria.

As always, I am willing to meet Ministers at the DCMS, IPSO and the ICO, and invite other victims to join me; and perhaps, one day, a victim-first approach will be embraced by them all. I say to the Government that despite their new provisions, they have let them get away with it again. However, now is not the time to press this further; rather, it is a time to watch and wait.

[Lord Falconer of Thoroton (Lab)]

My Lords, Amendment A3 in my name is an amendment to Motion A. I will speak to it now although it will be formally moved later.

I want to make two points, the first of which is to explain the purpose of my Amendment A3. Before I do so, however, I want to take up what the noble Lord, Lord, Cormack, said. He begged the noble Lord, Lord McNally, to withdraw his amendment, a point which the noble Lord, Lord Fairfax, made from a slightly different point of view. It is important to listen to what the noble Lord, Lord McNally, is saying—and I strongly support what he is saying. He accepts that in the context of this Bill, the question of Leveson 2 has effectively been decided. We have sent it back twice to the Commons and, first with a majority of nine and then with a majority of 12, the Commons said that it did not want Leveson 2.

Leveson Inquiry Update

Baroness Hollins Excerpts

Thursday 1st March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their responses.

[Baroness Hollins (CB)]

My Lords—

[Lord Keen of Elie]

I reassure the noble Baroness, Lady Hollins, that she will have an opportunity to speak, but as a matter of course at this stage I should respond to the observations already made.

One of the principal points made by both the noble Lords, Lord Stevenson and Lord McNally, concerned the terms in which Sir Brian had responded to inquiries. I make it clear that the entirety of Sir Brian’s letter will be available. Indeed, I shall take steps to make sure that it is placed in the Library. It may be subject to redaction if there are particular names which have to be taken out, but I assure noble Lords that the terms of that letter will be available in the public domain and it would not be appropriate for us to give a mere summary of it. I also assure noble Lords that that was always the intention. In fact, I believe that on a previous occasion I indicated that Sir Brian’s response would be available in the public domain.

On the question of what the noble Lord, Lord McNally, referred to as a “political deal”, there is no such political deal; there is a matter of political judgment that has been made in the light of present circumstances. I appreciate that it is not one with which everyone would seek to agree, but that is the responsibility of government and that responsibility has been discharged by this Government in the present circumstances. As for the two amendments that were alluded to by the noble Lord, Lord Stevenson, it is not for me to speculate on how and in what circumstances they will be reversed, but clearly this House will have a further opportunity to consider that matter as and when the Bill comes back before this House and I fully accept that.

On the timetable for the repeal of Section 40, I think that the noble Lord, Lord Stevenson, in posing his question already knew the answer. The words, “at the earliest opportunity” are as far as I am able to go at this stage. If I had further control of the parliamentary timetable, of course I would elucidate upon that response but I am not in a position to do so at present.

On the matter of cross-party approaches to a review, that will, I understand, be the subject of an Oral Question by the noble Lord and by that stage I may be better equipped to respond to his proposal; I would not seek at this stage to speculate.

On one final point, the noble Lord, Lord McNally, said that IPSO could have come within the Leveson recommendations. I remind the House that in 2016 Sir Joseph Pilling felt that IPSO had essentially come within the Leveson recommendations. He concluded that IPSO largely complied with the Leveson recommendations and I believe that that followed upon some adjustments it had made to its arbitration process. With those comments, I again commend this Statement to the House.

[Baroness Hollins]

My Lords, after my successful amendment to the Data Protection Bill, which was referred to by the noble Lord, Lord Stevenson, I was misrepresented in a leader in the Daily Telegraph which seemed to imply that I had lied to your Lordships’ House. A short apology was published at the bottom of page 2 last week. It seems that manipulation of public opinion continues, and I shall look forward to progress with the Data Protection Bill in the other place.

Sir Brian Leveson considers that an amended inquiry should go ahead, as do the victims of press abuse who believe that a very large amount of abuse remains hidden. Today’s announcement breaks promises to victims made in this House and elsewhere. How can the public have confidence in any future undertakings by Her Majesty’s Government?

Data Protection Bill [HL]

Baroness Hollins Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, at Second Reading I touched on the question of whether the Bill might be used as a vehicle for rehearsing some of the arguments that we have heard in your Lordships’ House about the issues raised by Sir Brian Leveson in his report. I opined at the time, and am still of the belief, that this would not be the right place to put forward those amendments again, because I would favour an initiative from the other side of the House which tried to build on some of the work that was done in the run-up to the work that was done after the Leveson report was first published, which saw all party groups coming together to try and find a way forward. It seemed that we were beginning to get ourselves into a cul-de-sac on many of these issues. Although there were strong passions and strong beliefs, and good intellectual and other reasons for taking forward some of these issues, the times had changed and the climate had moved on. It was therefore important to try and think again about what would happen.

However, I also said that maybe others would take a different view of that and come forward with amendments on these and related issues. I expressed the view that, if they did, Her Majesty’s Loyal Opposition would look at them on their merits and respond to them as and when they came up. This explains why we have not signed up to some of the amendments that are before your Lordships’ House today.

I also said that our main concern going into Committee would be to make sure that the arrangements under which we currently operated, which were largely set out in the Data Protection Act 1998, were continued. It was very important that all concerned had confidence that the transposition between 1998 and today, and going forward to 25 May 2018, was adequate and sufficient, in terms of how we approached them in relation to that Bill. I am therefore introducing Amendment 42, which is largely a probing amendment aimed at getting Ministers on the record as to whether or not they feel that the transposition has been made fairly and effectively. To the extent that there is an addition to the existing law, as I understand that to be the case, it is in response to a particular aspect of the current regime which does not seem to work well in practice. The Information Commissioner’s Office has made it clear that it feels that it could do with an additional power, which I think is provided for in the Bill, to assist with the ability to reimburse those who have been affected by actions arising from a complaint they have taken forward in relation to the press. If that is the case, I would be happy to have that confirmed. That is the reason for Amendment 42, and I look forward to hearing from Ministers how they respond to that.

In pursuit of a perfectly normal and natural wish to scrutinise the Bill as it is before us, we have two other amendments in this group. Amendment 87B was offered to us by the NUJ, and is on a question which comes up a lot when talking about intellectual property issues relating to photography—not that this is actually about that, but journalism has a common-sense meaning which is often used in language other than that of Bills to reflect all aspects of journalism, including photojournalism. But of course it is not the totality of what photographers do, so this amendment is an attempt to get on the record what Ministers believe to be the sense on page 136, in Part 5, where paragraph 24(2) states that GDPR provisions do not apply,

“to personal data that is being processed only for the special purposes to the extent that … the personal data is being processed with a view to the publication by a person of journalistic, academic, artistic or literary material”.

Given the absence of the term “photography” or “photographer”, I have a slightly rhetorical question, but one to which I am looking for an answer. Can I assume that the sense of that paragraph is that this would catch photographers?

If that is the case, since photography is often done in a way that would not always result in publication, could we have clarity about the situation if the photographers were to rely on this provision in relation to material? Say, for instance, they were taking a number of photographs of a demonstration, some of which would be used but a lot would not be, and then it was felt that there was some other purpose that those photographs could be used for—that was an example given to us by the NUJ. It was concerned that the photographer should not be discriminated against, in the sense that the work of building up a personal archive of photographs taken on the job that did not result in specific publication might not necessarily fit particularly well with that. This is just a probing amendment to see what the response to that is.

The other amendment in our name in this group is Amendment 87E, relating to an issue that has been raised by others in this group. There is what I think is meant to be a transposition from the Data Protection Act 1998 to refer to the question of whether or not the public interest is engaged, and various rules and regulations around that. The notion behind our amendment is that we are not sure it is helpful nowadays for the legislation to refer in specifics to a list of codes and practices, particularly because one of those—I reference paragraph 24(5)(c)—is not correctly described. I think others will speak to this as well. Obviously there is a code of practice that editors of major newspapers have contributed to and which works reasonably well in practice, but the danger about that as an example is that it cuts out a lot of other codes of practice that could easily be mentioned there. Having them there does not seem to advance the argument, which is that the controller must have regard to appropriate codes of practice or guidelines that exist. In the event that any question is raised by the Information Commissioner or others, it is more appropriate for that to be left more general than specific. With that, I look forward to the responses. I beg to move.

[Baroness Hollins (CB)]

My Lords, I will speak to the amendment in my name. I am grateful to the noble Earl, Lord Attlee, who has added his name in support. I will also speak in support of the amendment in the name of my noble friend Lord Skidelsky.

First, I want to explain why the Bill in its current form does not provide an adequate balance between privacy and freedom of expression, despite claims to the contrary by some parts of the media this weekend. Freedom of expression is essential to hold power to account and to expose wrongdoing, and it must be protected. However, the public also need to be protected from those who might seek to abuse such freedoms with the primary business purpose of selling newspapers.

The need for balance was recognised by Lord Justice Leveson in his 2012 report, and these amendments seek simply to implement some of the Leveson recommendations on data protection. It is worth remembering how some newspapers exploited private data in the past. Operation Motorman was a lengthy police investigation. The Information Commissioner reported on it in 2006, detailing the kinds of information that private investigators were buying unlawfully or obtaining by deception, including bank records, medical records, tax records, benefits records, phone records—thousands of transactions obtained from just one private investigator and commissioned by journalists. The victims whose data had been illegally accessed were not celebrities or public figures being investigated for genuine public interest reasons. They were just ordinary people with tenuous connections to those in the public eye: the sister of a well-known MP’s partner; the mother of a man once linked romantically to a “Big Brother” contestant; the decorator who had once worked for a lottery winner; and the GP who was doorstepped by a Sunday newspaper in the mistaken belief that he had inherited a large sum from a former patient. All these were victims of data misuse, and we are still learning how widespread those practices were.

Some argue that that is history and that newsroom practices have changed since the Leveson report, but the economic pressures which drove newspapers to desperate practices before are even more acute now. Many of the same editors and senior executives are still in place, and many in this House will remember similar promises of reform made by newspaper editors in the wake of the Calcutt report nearly 25 years ago. Does the Minister agree that this time, it is our responsibility to act decisively to protect the public from the less scrupulous elements of the press?

There is an exemption in the Data Protection Act 1998 for journalism, and this is reproduced in the Bill, but the exemption as drafted effectively offers a blank cheque to publishers and would allow them to breach data rights with little protection for the public from abuse. The GDPR is clear: exemptions should be made only when they are necessary to reconcile the right to protection of personal data with freedom of expression. My amendments are designed to ensure that this balance is properly preserved. They have been drafted by a senior QC and are based on recommendations made by Lord Justice Leveson, himself an independent senior judge, after a public inquiry in which he heard evidence and arguments from all sides, including the newspaper industry. I should declare an interest here and remind the Committee that I gave evidence to the Leveson inquiry.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, I have tried to explain that the objection to the post-Leveson deal was that it was punitive and unfair. That is why the press chose, as is its right, not to be part of it. It chose instead a system of self-regulation with a very independent Court of Appeal judge, who, when he took office, made it clear that he would insist upon the system working properly and independently, as he has ever since. It is true that he has had to struggle against resistance by some newspapers, but that is the system we have.

[Baroness Hollins]

The noble Lord’s support for IPSO as being substantially better than the PCC is surprising. It has done no standards investigations, issued no fines and made no front-page corrections. I do not understand how that can be seen as regulation.

The noble Lord described Hacked Off as a movement set up to support celebrities. It was actually motivated by the Dowlers and sustained because of concerns about people like the McCanns and Christopher Jefferies. It is not about celebrities. Celebrity money has provided some of its support because they were motivated by hearing about those appalling abuses. That is what it is about.

All my amendments would do is incentivise a regulator to seek approval of its independence. Why will IPSO not seek approval and recognition of its independence? Why is it so afraid? Is it because it is not independent?

[Lord Lester of Herne Hill]

My Lords, I am not here on behalf of IPSO; I am not counsel for IPSO. I have simply tried to explain historically why we are where we are and the arguments the press made in the past that I was party to at the time, as was the noble Lord, Lord Pannick. If there are points to be made about the way in which IPSO works, no doubt they will be made by Members of the House. I stand corrected by the noble Baroness, Lady Hollins, who reminds me that it was not only celebrities who were abused, which is completely true.

What I am trying to say is that no democracy in the world has a system of press regulation that has been formulated post Leveson. It is objectionable to our national and regional newspapers. They will not change and suddenly agree to a different system because of anything which your Lordships say or do. It is a free press and the sensible thing to do is to make the system work. I believe that under Sir Alan Moses it is working, but if it is not working sufficiently, I am sure that they would be interested in any suggestions. It is hopeless if your Lordships believe that you can bully them into giving up their self-regulation in favour of the statutory system which they reject.

--- Later in debate ---

[Baroness Hollins]

My Lords, I want to make a couple of comments. I take exception to the suggestion that my amendments are in some way bullying. If anything, it is the newspapers that are bullying: for example, bullying the Government not to commence Section 40 of the Crime and Courts Act 2013. This is not the wrong Bill: it is about data protection. All that my amendments would do is implement Lord Justice Leveson’s recommendations on data protection. It is a data protection Bill, and that is what they are about.

The so-called IPSO code is owned by the Regulatory Funding Company and, as I understand it, only its sub-committee can change it. IPSO then has to take it or leave it. The RFC also refused to allow IMPRESS to use it. It seems very strange to have that code named in the Bill. I will think carefully and review what needs to come back on Report, but I would welcome an opportunity to discuss this further with the noble and learned Lord to try to understand why there is such a difference of view about it.

[Lord Skidelsky]

I should like to make just one point. The noble and learned Lord, Lord Keen, came close to admitting that to put IPSO in the Bill was a mistake—I say came close to admitting—whereas it would have been perfectly all right to have just said, “the editors’ code”. There is something there to discuss, because if you call it the IPSO editors’ code, that looks as if you are favouring a particular organisation, rather than a code. The code is owned by the newspaper publishers; it is their code; we need to take that into account. It is less obnoxious just to have “the editors’ code”, than to have an organisation named in the Bill as the effective carrier of that code. I do not know whether the noble and learned Lord is willing to consider leaving out mention of the organisation. If so, it would be interesting to discuss how best to do that. I may come back to this on Report, but thank him very much for his speech.

Digital Economy Bill

Baroness Hollins Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

Moved by

[Baroness Hollins]

233F: After Clause 87, insert the following new Clause—
“Awards of costs in respect of legal claims made in relation to digitally published news-related material
(1) This section applies where—(a) a relevant claim is made against a person (“the defendant”),(b) the defendant was a relevant publisher at the material time, and(c) the claim is related to the publication of news-related material which is published on a website.(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.(4) This section is not to be read as limiting any power to make rules of court.(5) For the purposes of this section—“relevant publisher” has the same meaning as in section 41 of the Crime and Courts Act 2013;“relevant claim”, “news-related material”, “material time” and “approved regulator” have the same meanings as in section 42 of that Act;“publication” has the same meaning as in section 42(9)(a) of that Act.”

[Baroness Hollins (CB)]

My Lords, I declare an interest as I gave evidence to the Leveson inquiry and my family decided that I should give evidence on their behalf—believing undertakings by the former Prime Minister that Lord Justice Leveson’s recommendations would be implemented. One of those recommendations, as we were all aware, was Section 40 of the Crown and Courts Act 2013, which Parliament enacted with cross-party support, but which the Government have so far failed to commence. This leaves victims of press abuse without affordable access to justice and leaves the royal charter hamstrung with no incentives for its use.

In response to the Government’s failure to follow through on their undertakings, I tabled amendments to the then Investigatory Powers Bill to replace Section 40 of the Crown and Courts Act with a similar provision. Government Ministers and others, in resisting those amendments, suggested that the Digital Economy Bill would be a better vehicle to resolve the matter—particularly because of the urgent nature of the Investigatory Powers Bill. Although my amendments were in scope and the Bill had been amended with a large majority by your Lordships’ House, I agreed to withdraw them when they were returned by the other place.

I will very briefly explain the effect of the amendment I am proposing today. It would make a similar provision to that in Section 40 in the Crime and Courts Act 2013 in so far as is possible within the scope of this Bill. Lord Justice Leveson recommended that all newspapers should join an independently approved regulator that is independent and effective, and that such a regulator would offer guaranteed, low-cost arbitration as a cheap route to justice for the press and free for the public. If a newspaper refused to join a system that Lord Justice Leveson set out and to offer low-cost arbitration, the judge said that, in order to prevent the power and work of newspapers being used to bully and intrude on ordinary members of the public, the newspaper would have to shoulder the court costs of any claim brought successfully against it. To avoid having to meet the costs of claims brought against it, and indeed to benefit from costs protection if sued in court, a publisher need only join a recognised regulator and resolve any claim far more cheaply through that regulator’s arbitration system.

It is this provision that the former Secretary of State decided not to commence. The amendment I am moving today would bring a Section 40 lookalike into effect for online publications. That would include, of course, the major print publishers, which all have significant news websites. Given that it relates only to the online publication of libels or other illegal abuses as they relate to online publication, it is slightly narrower in effect than the provision agreed by Parliament in 2013. It is a weaker substitute for Section 40. But in the absence of any of the access to justice which Section 40 would provide for families and individuals attacked unfairly by the press, it is far better than nothing at all.

The Government may argue that a consultation on these matters is ongoing. Lord Justice Leveson consulted publicly throughout 2011 and 2012. Section 40 was one of his many recommendations. My family and I went through the traumatic process of giving evidence at Leveson because we expected that his recommendations would be taken seriously. The consultation now being considered in private, with a government Minister presiding over it, does not, to be honest, inspire the same confidence.

My second amendment, Amendment 234A, simply provides for immediate commencement for reasons that I do not need to explain. I hope that the Committee will support these probing amendments. I beg to move.

[Lord Low of Dalston (CB)]

My Lords, I support the amendments because they provide the Government with yet another opportunity to deliver on their commitments to the victims of press abuse and bring this critical access-to-justice measure into force.

Amendment 233F would not bring Section 40 of the Crime and Courts Act into force in full, as we have heard. That is regrettable but it is as much as can be done within the scope of the Bill. However, it will demonstrate to the Government that this matter is not going to go away, and that people like the noble Baroness, Lady Hollins, will keep bringing back amendments such as this and seeking to insert them into any Bill into which they can plausibly be inserted until the Government keep their promises to the victims of press abuse.

It is now almost four years since the cross-party agreement was reached and Section 40 was enacted by Parliament. This House, as the noble Baroness reminded us, voted for it again as an amendment to the Investigatory Powers Bill before Christmas. The press lobby believes that by intimidating the Government with the threat of negative headlines and causing maximum delay, it can prevent it coming into effect. I support the amendment because I do not believe that people such as Mr Murdoch are sovereign and because I do not believe that the Government should override the will of Parliament to placate the interests of newspaper owners.

The consultation that the Government have launched, which has recently ended, is offensive to the victims of press abuse, whose evidence was accepted by Lord Justice Leveson, and should be offensive to Parliament, which enacted this measure in 2013. The former Prime Minister David Cameron, as the noble Baroness, Lady Hollins, has again reminded us, undertook to implement Leveson’s recommendations unless they were “manifestly bonkers”. Retrospective consultations to undermine the recommendations of a public inquiry whose recommendations were not manifestly bonkers, as well as the will of Parliament, are an affront to any understanding of what is meant by “good governance”. It is no wonder that the consultation exercise is facing a legal challenge.

I hope that the Government will keep their promises and implement Section 40 without delay, and I hope that they are under no illusion about the strength of feeling on all sides of the House on this matter. There may not be too many people here at this hour to demonstrate that, but the Government should make no mistake: it is the case. I attended a meeting the other evening where constructive proposals were discussed that seemed to some of us to have the makings of a settlement between those pressing for the implementation of Section 40 and the newspaper editors. Surely the Government should be trying to broker such an agreement instead of just sitting on their hands. Until they do, as I say, amendments such as this will keep coming back.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged to the noble Baroness, Lady Hollins. I will address Amendments 233F and 234A together. The amendments, of course, mirror Section 40 of the Crime and Courts Act 2013 but would apply to digitally published news-related material only, as we know. The House has debated the issue of Section 40 on various recent occasions, including during passage of the Investigatory Powers Act and the Policing and Crime Act. There was also a stand-alone debate just before the Christmas Recess.

There is obviously a great strength of feeling about this matter. I realise that some Members of this House are frustrated by what they see as a lack of progress by government on Section 40. However, the Committee should also recall the strength of feeling on the other side of the debate. Many noble Lords have argued passionately in this House against Section 40 and are concerned about its commencement and its impact upon freedom of the press. That is why the Government ran a consultation to consider the matter further.

The press self-regulatory landscape has changed significantly in the past four years since the Leveson inquiry reported. It is right that the Government take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established can never happen again.

A consultation was the most appropriate way to ensure that the Government were listening to all views when considering options for the next step in respect of Section 40. Indeed, the consultation closed on 10 January, and it is estimated that we have received more than 140,000 responses. I know that many Members of this House responded to the consultation, and of course we are grateful that they took the time to do that, but many others have responded as well. It will be necessary to consider the many and diverse views that have been expressed with regard to this matter.

As many Members of the Committee will know, and as the noble Lord, Lord Prescott, mentioned, the consultation is now subject to a legal challenge. While I cannot comment on the ongoing legal proceedings, the Government have committed not to take any final decisions on the matters to which the consultation relates until the judicial review application has been determined. As such, it is not possible for me to set out a timetable for when the Government will respond to the consultation. But of course we hope that that judicial review application will be determined much sooner than later.

That brings me on to the amendments from the noble Baroness, Lady Hollins. The issues that she has raised are of critical importance. I appreciate that she and her family were themselves the subject of press abuse, as were other Members of this House. I also recognise the strength of feeling that parties have on the commencement of Section 40. However, with respect, now is not the right time for this House to consider the present amendment.

News consumption is becoming increasingly global and more and more people are reading their news online from a multitude of sources from around the world. Bringing in a law that effectively mirrors Section 40 but for relevant digital publications only would create an incoherent regime applying different rules depending on the mechanism by which an article has been published.

Noble Lords who have supported these amendments have raised the profile of this issue and given a clear signal of their intent—and of their continuing intent. This has not gone unnoticed in government. But we must ensure that we consider this matter properly. As I said before, a free press is an essential component of a fully functioning democracy and we must ensure that we protect that. I note what the noble Lord, Lord Prescott, said about the position in Ireland. I am not in a position to express a view as to the manner in which that operates but I am perfectly content to indicate that we will look at that going forward as well. I hope that that will satisfy the noble Lord. At this stage, however, I urge the noble Baroness, Lady Hollins, to withdraw her amendment.

[Baroness Hollins]

My Lords, I thank the Minister for his reply. My hope is for a free and responsible press. However, what is most disappointing for the public is that over the last four years of inertia and of the press’s failure to establish a proper regulator, countless more individuals have been affected by press abuse and have no access to redress. They include victims from the Paris Bataclan attack, the Shoreham air disaster, and many more. This issue is still live and is still troubling. All these individuals have been let down by the Government’s decision to renege on their promises and to prevent access to justice for ordinary victims of press abuse. I am disappointed by the Minister’s response and I intend to return to this on Report. I beg leave to withdraw my amendment.

Amendment 233F withdrawn.

Press Regulation (Communications Committee Report)

Baroness Hollins Excerpts

Tuesday 20th December 2016 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I begin by saying how welcome the report was when it was first published by the Select Committee chaired by my noble friend Lord Best in 2014. It described a distressing lack of progress by the industry with respect to the Leveson reforms. I remind noble Lords that I gave evidence to the Leveson inquiry.

In the time since, we have had one general election, one national referendum, a change of Government and no progress on regulation of the press. Indeed, the press remains the only industry in the country without proper regulation, and it shows. Editors know that they can fool some of the people all of the time and all of the people some of the time—a combination that allows some of our papers to go to print every night. Words really matter. There are too many words written without enough care and with no comeback. In a regulated world, journalists would keep their words spicy and strong, but given they might have to eat them later they would not make them toxic to the host. At the moment some editors seem to encourage journalists to write anything as long as it is sensational, but there is no comeback.

So what kind of regulator is IPSO? According to Hacked Off, which I asked for a briefing, IPSO has so far failed to carry out a single regulatory action in the two years of its existence—no £1 million fines; no fines at all. In fact, there has not been a single standards investigation. I suggest that IPSO is no more a regulator than the PCC, and, from what I have heard, may be even more biased in its complaints handling. On not a single occasion, I am told, have any of the front page code breaches committed by newspapers been ordered by IPSO to be corrected with equal prominence, or even on the front page at all. We still live, two years on, in the pre-Leveson era of buried corrections and a feeling of impunity for newspapers, which are content to breach their own code, knowing there is little or no consequence.

IPSO claims its independence should be accepted on its own assertion. It refuses to apply for the test of recognition for independence and effectiveness. I might have “Lady Hollins” embroidered on an England football kit, but wearing it would not make me an international footballer. The truth is, neither of us would make the cut. In these two years the press has been able to smear, intrude and discriminate with impunity. It has been a lost two years in press regulation.

It has now been more than 10 years since my family suffered appalling intrusion, but now let us think of all those attacked, harassed and victimised by some of the press over just the last two years: survivors of terrorist atrocities like the Bataclan, who have been intruded upon; partners and loved ones of those who lost their lives in the Shoreham air disaster, whose personal information was stolen; the woman who lost her husband and children in Northern Ireland, and found that a national newspaper reporter, posing as a well-wisher at their funeral, published comments made at the funeral as if an exclusive interview. In all these cases over the last two years, and many more, national newspapers have acted against those they claim to defend.

These are just a few of the people let down by newspaper editors and executives, even since the Leveson report was published, and the Government and Parliament accepted his recommendations and passed a law to implement them—executives who, instead of speaking truth to power and defending the voiceless, have sought the complicity of the Government in maintaining their stranglehold on their own internal mechanisms of so-called regulation, allowing them to get away with promulgating rumour and gossip. Indeed, their opposition to part 2 of the Leveson inquiry must be the first time in the history of journalism that large numbers of newspapers are desperately lobbying for information not to come out. Where is the appetite for investigative journalism? I for one dislike descriptions of our society as post truth. Having been brought up in Yorkshire, I call a spade a spade. Now I call lies, misrepresentations and spin what they are—lies.

Paragraphs 135 to 146 of my noble friend’s report deal with Section 40 of the Crime and Courts Act. The report anticipated the commencement of Section 40 and focused on what steps the Government should take if the Section 40 incentive proved ineffective after it was introduced. As noble Lords will know, those provisions were enacted by Parliament but not commenced by the Government. Instead, after meetings with national newspaper owners and executives, the Government intervened to suspend their commencement. That in itself was a violation of the freedom and independence of the press by the Government—something all sides in this debate claim to oppose but which, on this occasion, was welcomed by press editors and owners. It is notable that working journalists in the National Union of Journalists and victims protested.

The situation today is worse than no change. Back-tracking by the Government has in fact moved the situation backwards. The Government have been defeated three times on Section 40 in the last three months in your Lordships’ House and they have been defeated once on their reluctance to start part 2 of Leveson. None of us who was personally affected by these issues expected to be debating this five years after the terms of Leveson 2 were agreed, four years after Leveson 1’s recommendations were published, and more than three years since the cross-party agreement was signed and Section 40 enacted. Few of us will want to continue proposing legislation defeating the Government on Bill after Bill to keep the Leveson recommendations on the agenda, but as long as the Government persist in capitulating to press interests, frustrating the Leveson recommendations and the settled will of the House, it feels as if there is no choice but to take forward these matters in just this way.

The Government have announced a consultation that creates many problems. I am sure other noble Lords will speak to it in more detail. My family and others did not give evidence at Leveson, reliving the trauma and intrusion we suffered—I stress that—so that the Government could require us to do it all over again. This time, instead of an independent judge listening to the evidence in public, a somewhat conflicted Minister will receive the so-called evidence in private. Noble Lords will be unsurprised that I have little confidence in that.

Our evidence remains on record; Leveson’s reasoning and consequent recommendations remain on record; and the circumstances remain unchanged, except for an apparent lack of government resolve to deal with this once and for all. Compromise, as suggested by the noble Lord, Lord Lipsey, is not something that the victims of an all-powerful press industry should be expected to initiate.

I began this speech by saying that this committee report was welcome in 2014. The inaction, indeed the reversals, since then have made it even more relevant and urgent today. The Government said in their response that they would,

“observe with interest as the sector takes forward … important steps to ensure a responsible and accountable press”.

Does the Minister agree with my observations about the continuing failures in the sector to move towards a “responsible and accountable press”?

I hope the Minister will stick to his party’s manifesto and recommit in his response to Section 40, to Leveson part 2, or to considering further action if this impasse persists, and I do not mean just waiting for the consultation. I look forward to his response.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I should perhaps start by noting that I was one of the committee of five which appointed IPSO and its chair, Sir Alan Moses, an old friend and colleague, and someone in whom I had and have full confidence. He is someone of robust independence and absolute integrity, and no respecter of persons.

In response to the title of this debate, so brilliantly introduced by the noble Lord, Lord Best, it would be my basic contention that we are now in a reasonably good place—certainly one that would be worsened rather than bettered by bringing Section 40 into force. This debate, fortuitously perhaps through its long delay, clearly feeds neatly into the ongoing consultation process on Section 40 and Leveson 2. I hold no particular brief for the press, least of all the Daily Mail. How could I when it published an outrageous piece so recently on judges—“Enemies of the people”, if you please? But I gently point out to the House that even in the fanciful event of the Mail signing up to Impress, there would be no sanction for headlines of that sort. The brief I hold is not for the press, but it is strongly for freedom of expression, subject only and always to the laws of the land, civil and criminal.

Section 40 was of course passed in the wake of the hacking scandal, the revelations of which shocked the nation.

In the febrile atmosphere that followed Leveson, the political parties reached agreement on a detailed future regime for press regulation, Section 40 being, as the noble Lord, Lord Best, described, designed as carrot and stick to cajole—one could say, to bribe and bully—the press into signing up to an ultimately state-approved regulator, something not easily seen as self-regulation.

Hacked Off, whose members include some, like the noble Baroness, Lady Hollins, for whom I have the most profound respect—

[Baroness Hollins]

Excuse me. I am not a member of Hacked Off. Hacked Off does not really have members. It has advised and briefed me, and it represents victims, but I am not a member of Hacked Off.

[Lord Brown of Eaton-under-Heywood]

Forgive me, that is my mistake and I stand corrected, but I hope that the noble Baroness will allow me to say that she is, so to speak, entirely sympathetic to its approach. One understands that; she has an understandable grievance against the press for its appalling treatment of her. Hacked Off was involved in the agreement. I do not know whether the press was that closely involved but, in all events, although there are those who say that an agreement is an agreement and that it must now be fully honoured by activating Section 40, I respectfully disagree. I give just four brief reasons why.

First: can anyone doubt that life for newsprint publishers is becoming ever harder? There are ever fewer readers and, perhaps, more importantly, ever fewer advertisers, as online competition becomes ever more successful. Of course, Leveson regulation does not extend in the same way to online material. Secondly, not only have the courts shown themselves well able to deal with hacking and other criminal behaviour, with regard to the civil law, the right to privacy is becoming increasingly entrenched. Prior to the Human Rights Act, there was no right to privacy under English law, but now, one has only to consider Max Mosley’s case, in which he was awarded £60,000 damages against the press for an unjustifiable invasion of privacy, as the court held—your Lordships will need no reminding of the particular circumstances of the case—to see how far privacy law has come. That said, it is perhaps something of an irony that it is now Max Mosley’s money that is behind Impress, with its guarantee of four years of cheap arbitration.

Thirdly, when Section 40 was enacted, the PCC was still the only regulator in town. It was regarded by many as toothless and ineffectual. I suggest that IPSO is an altogether more effective, powerful body. It is now well established, widely respected and already trialling its own arbitration scheme. Its editorial code is wholly unexceptionable and, for good measure, following Sir Joseph Pilling’s report, to which the noble Lord, Lord Lexden, referred—quite unjustifiably rubbished as a whitewash—Mr Dacre has now retired from the code committee. As Peter Preston, a most respected ex-editor of the Guardian recently wrote in the Observer:

“Ipso, if you look hard at the detail, has made a pretty good stab at improving voluntary regulation. Set the Ipso and Impress editorial codes side by side and no one can see much difference. Apply those codes to current cases and there’s no obvious gap either. The problem for Ipso isn’t performance but perception”.

Fourthly, the FT and the Guardian are of course entirely self-regulating, declining to sign up even to IPSO. The great majority of newspapers, however, have signed up to IPSO, but they have made it crystal clear that under no circumstances will they agree to regulation by a recognised body. They are, as Sir Alan Moses first put it, “theologically opposed”. They see it, and it is widely seen by many abroad, as a form of state control. The Section 40 carrot has plainly failed to seduce the press into the Impress scheme. Do we therefore now want to watch as the stick is applied? Judges already have very considerable discretion with regard to costs orders. Are we really intent on punishing newspapers which, as a matter of principle, are simply not prepared to be regulated by Impress? Do we want war?

This being Christmas week, I hope your Lordships will indulge me if I finish my speech with a brief reminiscence about one of my own old cases. I promise that it is of some slight relevance. Over a quarter of a century ago, I presided in a jury trial at the Royal Courts of Justice over what was then a very high-profile libel case involving the late Robert Maxwell who was suing Private Eye. Mr Maxwell was complaining of a piece in the Eye which he said insinuated that he— Maxwell—had been trying to bribe Neil Kinnock, then leader of the Labour Party, with free holidays and the like, into recommending him for a peerage. The thrust of his complaint was that he was falsely being alleged to be corruptly attempting to get a peerage. Well, the case was opened at great length, as all these cases always are, and the witnesses started going through the witness box, and the case proceeded. On the fourth day, when I came back from lunch in the Inn of Court, Middle Temple, I found a note from the jury which read simply, “Please sir, can you tell us what a peerage is?”.

There it was. We were four days into the case and I solemnly had then to explain the nature of a peerage and what was the underlying complaint. The next day I went back to lunch and could not resist telling my fellow benchers of the remarkable thing that not a single one of the jury of 12 knew what a peerage was, to which one rather dry old judge said, “That doesn’t necessarily follow. One of them might have known and explained it to the others and been flatly disbelieved”. It is fair to say that this was before the great reforms of 1999. It did not do much to improve my faith in juries.

I should note that Mr Maxwell, before his roguery was uncovered, won that case. The jury gave him £55,000 damages, of which £50,000 were exemplary damages; he promised to give the money to a charity but never did. I wonder what your Lordships think of Private Eye. I need hardly say that it has not signed up to regulation of any sort and never will. Do your Lordships want to mulct it in costs as well as in exemplary damages so as to eventually drive it out of business? For my part, I hope not. My plea therefore is: let things be; let well alone.

Press Matters

Baroness Hollins Excerpts

Tuesday 1st November 2016 Lords Chamber

[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?

Investigatory Powers Bill

Baroness Hollins Excerpts

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

Moved by

[Baroness Hollins]

1: Clause 8, page 7, line 37, at end insert “, or
( ) in the course of its transmission by means of a public telecommunication system.”

[Baroness Hollins (CB)]

My Lords, I had hoped not to detain the House, but last night the Government indicated, to my surprise, that they will oppose this amendment. I hope noble Lords will understand the need for me to set out some of the context.

The debate on Report was very clear about the intention of our amendments to Clause 8, and the large majority in the Content Lobby affirmed this. The noble Earl the Minister helpfully suggested that our original amendments, as drafted, may not achieve our stated objectives. I took advice from the Public Bill Office at some length to clarify the amendment, as allowed for in the Companion to the Standing Orders, at Third Reading. Amendment 1 today aims to ensure that costs protections will apply to new claims alleging illegal phone or email hacking by newspapers, as was originally intended and as was debated.

If the clause is amended today, it will implement, to the limited degree that we are able in this Bill, the court costs incentives and protections of Section 40 of the Crime and Courts Bill, which Parliament overwhelmingly agreed over three years ago. So far the Government have failed to commence Section 40, in breach of that cross-party agreement, so this amendment is just one tiny step towards bringing some much-needed balance into the system.

I refer noble Lords to the report issued to Parliament by the royal charter Press Recognition Panel only last week, which clearly and cogently emphasised why such changes are needed and called on Her Majesty’s Government to commence Section 40. We should remember that the independent Press Recognition Panel audits press regulation; it is not a regulator.

I have had discussions with senior members of Her Majesty’s Government, who contacted me to persuade me not to pursue this amendment on the grounds that it may somehow delay Royal Assent for this important Bill, which has as one of its primary purposes the aim of improving national security. However, given the huge support that the amendments have received so far, I am not minded to give way to this pressure. Very briefly, I will explain why.

One argument being made by the press recently that small local newspapers will be at risk from Section 40 is wrong. Newspapers can simply choose to join a recognised regulator and get the same costs protections that the public will get, unlike newspapers that choose not to join. Since we last divided, there is now a recognised regulator: Impress. The limited amendments to this Bill will not affect small newspapers adversely at all—they do not hack phones. The local newspaper threat is a smokescreen. The protests are really coming from the big newspaper groups, which own most of the regional papers and in effect are using them as newsprint shields. It is the big companies preventing the small papers that they own from seeking the costs protection that flows from membership of a recognised regulator. It is precisely the small papers that will benefit from Section 40 protection—they will be much better placed to practise good investigative journalism—unless they choose voluntarily not to seek that protection. That should be their choice.

This is now urgent. Now that Impress has been recognised, many independent small publishers that are already Impress members are suffering actual detriment from the non-commencement of Section 40, and victims of non-Impress newspapers are not getting the costs advantages they were promised. It is complicated. A central theme in the Leveson report and the cross-party agreement to implement it was how to prevent political interference in press regulation in the interests of free speech. That is why the independent Press Recognition Panel was established, which is politician free. But political interference by the Government is what we are now seeing, with the Secretary of State holding the starting gun for the commencement of Section 40. The Secretary of State appears to accept that IPSO is nowhere near good enough but believes that political pressure will force it to improve to a point where it is on a par with Impress.

On behalf of victims of press abuse, the general public, newspaper readers, front-line journalists and those of us who gave evidence to the Leveson inquiry, I call on the Government to commence Section 40 as they promised to do when this House and the other place overwhelmingly passed it into law. If the Government do so now, we in this House will not need to see the Bill again. But if there are problems with the amendment which might affect security in some way—unbeknown to those of us who have added our name to it—perhaps the Government could meet me and interested parties, and allow a few days’ latitude to get this right. I beg to move.

[Lord Paddick (LD)]

My Lords, briefly, I support the noble Baroness. My understanding is that this amendment has been tabled because of a drafting issue in the amendment that was overwhelmingly passed by the House, on the basis of the principle of protecting those whose phones have been hacked into by newspapers which have not signed up to an independent complaints system. It is also because the original amendment applied only to private communication networks; Amendment 1 would change it to public communication networks. There is no question at all of a change in principle. I therefore do not understand why the Government would not agree to support this amendment, which is clearly simply to correct that drafting issue. On that basis, we will support the noble Baroness.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that system. This was a necessary safeguard to protect individuals, in very limited circumstances, where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.

A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.

The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.

As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.

[Baroness Hollins]

My Lords, thank you for contributing to our understanding of this problem a little further. At no point has the House been told that the amendments are not in scope. In fact, it was suggested to me over the weekend by members of Her Majesty’s Government that I should seek instead to place such amendments within another Bill, such as the Digital Economy Bill. I sought advice from the Public Bill Office but, after considering the matter at length, it advised me that that was not possible and they would not be within the scope of the Digital Economy Bill.

If the House supports the amendment today, as I hope it will, I will be more than happy to work with the Government to find a wording which does no more than provide for as much of the Section 40 costs incentives as could be provided in the scope of the Bill without going any further. I would not be asking the House, in ping-pong, to do anything that destabilises anything else in the Bill. The best solution, of course, would be for the Government to commence Section 40, as they promised and as they should. Then, we could drop all the amendments. It is the Government’s choice and always has been.

On previous occasions when I have had drafting difficulties—and this is a complicated Bill—Ministers have been most helpful in achieving the intentions of your Lordships’ House. I wrote to the noble Earl, Lord Howe, asking whether there were any technical difficulties with the amendment, and the answer was no.

I am not content with the answer given by the noble and learned Lord, and I wish to seek the opinion of the House.