Crime and Courts Bill [HL]

Baroness Kennedy of Shaws Excerpts

Monday 25th March 2013 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I support the amendments and welcome the framework agreed by the parties. It is not perfect Leveson, but it is about 80% or 90% Leveson. In fact, the 10% to 20% that is not Leveson is a compromise in favour of the press, and we should be clear about that. It cheers my heart to hear those who have absolutely railed against the Human Rights Act, the European Convention on Human Rights and the court in Strasbourg suddenly praying in aid that great wealth of rights law, now that those people are confronted with the possibility that the press might have to be properly regulated.

First and foremost, only a week ago last Monday night, we created an entrenchment clause to protect the charter from meddling from behind closed doors by politicians, privy counsellors and Ministers. It was a way of using law to protect press freedom; indeed, I hope the Defamation Act will do so, too. The other way in which we can protect press freedom is by returning to high ethical standards. That is what is forgotten by those who hyperventilate about the great horrors of a regulatory system. It beggars belief that the noble Lord, Lord Black, who sat on the PCC for years and was basically hugger-mugger with those who were not really interested in what was happening to the victims of press excesses, now speaks about the “chilling effect” of this regulatory framework.

The costs element in this new arrangement is an important aspect of the Leveson incentives and is at the heart of the matter. The problem with the PCC was always that it had no teeth, and one had to find a way of dealing with that. However, as for the business of exemplary damages, perhaps we should make it clear that they would be used only in the most exceptional circumstances where the most egregious conduct took place. Almost invariably, it would go hand in hand with criminality of some kind. The criminality can be dealt with in some ways, but we know that the civil and defamation courts should have at their disposal some way of registering the horror of what happens to victims.

Noble Lords should have in mind circumstances such as when medical information has found its way into the hands of journalists that discloses, for example, that a woman has had an abortion, that someone has had psychiatric treatment, or that someone has a disease such as Huntington’s chorea that will manifest itself at a certain point in their lives. How dare the media expose such information? It is right that the courts should be able to respond appropriately when such things are done. We know that, except in exceptional circumstances, they are going to be dealing only with those who refuse to sign up to being part of this regulatory framework. This hyperventilation about exemplary damages is yet another manifestation of the huffing and puffing that we have seen in the press recently about the Rubicon being crossed and the end of freedom of the press as we have known it for hundreds of years, when the reality is far from that.

This is a moment for this House to reflect on the fact that over the past few months, while Lord Leveson was conducting his hearings and since he reported, there have been regular polls, and every poll conducted with the public showed that they want to see a proper regulatory framework. Indeed, all the polling indicates that the public support Lord Leveson’s report. More recently, as agreement has been reached across parties this week to create the framework that we are discussing tonight, all the polling indicates that the public want something of this sort to happen. So we should welcome it.

I am a human rights lawyer who believes strenuously in the freedom of the press, but I also have seen the horror of the impact on victims. They are not celebrities and the famous, but ordinary people. We in this House have to bear them in mind. That is what this framework seeks to do. I, like others, have concerns. I am worried about who will be given immunity and believe that we still need careful thought about who is covered by the immunities that we are talking about. I, like the noble Lord, Lord Skidelsky, want reassurances about freedom of information applying to these processes. However, we in this House should welcome the fact that somehow we are going to move forward on this and that we are not going to say that it is business as usual. Business as usual is not good enough.

[Lord Phillips of Sudbury]

My Lords, I declare an interest as having been for a few years a member of the appointments commission of the Press Complaints Commission and for 10 years on the Scott Trust, which owns the Guardian, the Observer and other newspapers.

I congratulate the three main parties and their leaders on coming to an agreement over what must surely be as difficult a set of issues as one could devise. No one in this House is mindless of the fundamental importance of freedom of the press in all its guises. Having said that, I am afraid that I reject the hypothesis very eloquently put forward by the noble Lord, Lord Black, that anything by way of control of the press is beyond the pale. The measures that the three leaders of the three main parties came to agreement on are profoundly sensible and, I believe, modest, and I think they deserve support.

I do not say that because the British public are expecting it. There are occasions when this House has to stand against the vast majority of the public if in all conscience we believe that they are wrong. We have done that many times in our history. However, I do not think that this is one of those times. This it not the thin end of the wedge, as is constantly said, because we will all be on our guard over the next few years to see whether what we intended comes about, and whether what we did not intend comes about. I have no doubt that the overwhelming sense, in this place and the other place, is such that if our hopes and expectations are not realised, we will do something about it, and that will be to protect the freedom of the press, not to grind away at that freedom.

I will make a couple of quick points. The first is that you could not have a more modest provision of exemplary damages than you have in this Bill. The noble Lord, Lord Black of Brentwood, if I may say so, did not give the full picture. He gave a telling account of the meaning of the word “outrageous”, but not the full context in which that word appears. New subsection (6) in Amendment 11 says:

“Exemplary damages may be awarded under this section only if the court is satisfied that … (a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights”.

“Outrageous”, “reckless” or “deliberate” is an extremely high hurdle, and I think that judges can be relied upon to keep it as an extremely high hurdle. I do not share the noble Lord’s misgivings in that regard.

The second issue relating to exemplary damages is as follows. New subsection (2) in Amendment 13, on the amount of damages that can be awarded, is worth quoting in full. It says:

“The court must have regard to these principles”—

the ones mentioned earlier—

“in determining the amount of exemplary damages”.

The first of these limitations is that,

“the amount must not be more than the minimum needed to punish the defendant”—

not the minimum needed to adequately punish the defendant, or to sufficiently punish the defendant, let alone to effectively punish the defendant.

My noble friend Lord McNally might like to take that away and think about that, because it actually rather screws the Bill, if I can use that common phrase. It seems to me that £1 of damages would, on that definition, satisfy that test, because £1 is a punishment, even if it is utterly inadequate and rather laughable. There are no qualifications to that phrase. That is another reason why the noble Lord, Lord Black, and the newspapers, are getting overly concerned—let me put that kindly.

Finally, I make a point about the meaning of “publisher”, because the noble Lord, Lord Lucas, and others have mentioned the extent to which this could impinge on smaller publishers rather than the great national newspapers and so on. I am sympathetic up to a point, but I do not like, and I hope the House will not like, the provision in Amendment 18 that is headed “Meaning of ‘relevant publisher’”. Subsection (3) of the new clause says:

“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for the content of the material”,

and—this is the killer—

“if the person did not post the material on the site”.

In other words, if you are the operator and you did not actually post the offensive, outrageous, et cetera, material, you are free. That is quite inadequate.

If this provision is to be in the Bill, it needs to be expanded. This would allow a publisher or operator of a website to get away in the circumstance where, for example, the person who posted the awful stuff was a subsidiary company or a partner or was paid to put the stuff on the website. If you were a really malicious operator, you could think up a shell company in the Seychelles that could post the most dreadful stuff about a person or a group of people, and under this clause the operator of the website would not be liable. That needs looking at. However, as I say, all in all, I believe that, in this most difficult of circumstances, the Government, aided by the Opposition, have come up with a good set of provisions.

I end by asking my noble friend Lord McNally to tell the House, when he sums up, whether there is another example in our legal set-up where damages are dependent not on the offence but on the nature of the offender. This plays back to what was said by the noble Lord, Lord Black of Brentwood. I am concerned that it is legally unprecedented to punish not according to what you have done but according to who you are. I think that we should know that.