National Security Bill

Lord Black of Brentwood Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

Amendment 79B, in the name of the noble Lord, Lord Coaker, calls for a report on the impact of offences under Clauses 1 to 5 and the Official Secrets Act 1989, as amended under Schedule 17 to the Bill, on the operation of NGOs and journalists. We would welcome such a report, but I do stress that it does nothing to cure the remaining problems that are inherent in the Bill as it stands.

[Lord Black of Brentwood (Con)]

My Lords, I will speak to Amendment 18 in my name, supported by the noble Baroness, Lady Stowell, the noble Lords, Lord Stevenson and Lord Faulks, and to a number of government amendments that touch on the same issue. I declare my interest as deputy chairman of the Telegraph Media Group, which is a member of the News Media Association, and as director of the Regulatory Funding Company. I also note my other interests in the register.

One of the leitmotifs that ran through discussions on this Bill in the other place, and through Second Reading and Committee here, has been its impact on independent journalism, particularly investigative reporting, as the noble Lord has just said. I do not need to rehearse all those arguments on this subject, which have been well covered and widely reported. Indeed, it has attracted attention and criticism from international media freedom groups deeply concerned about the global impact of this legislation.

The crux of the argument is really very simple and arises mainly from the wide definitions of offences in Clause 3, which potentially criminalise aspects of investigative reporting. That in turn—this is the major worry—produces a powerful chilling effect on investigative reporting by responsible journalists. I appreciate that there are government amendments, which I am going to come to, but as it stands an offence punishable with heavy criminal sanctions and sentences is committed if someone

“knows, or ought reasonably to know, that it is reasonably possible their conduct may materially assist a foreign intelligence service”.

That would cover a wide range of reporting, whether about sexual assaults on board a nuclear submarine, Chinese influence in the UK, bullying by intelligence officers, an innocent photograph of a nuclear power station or huge investigations such as the Panama Papers.

The problem is that, when journalists start investigating a story, they cannot possibly know where it will lead and whether their reports might

“materially assist a foreign intelligence service”.

They should not be criminalised for what they ought to have known, even if what they actually did know at the time is taken into account. It is too nebulous and such a low bar that much reporting could be caught. Editors and reporters would far too often be forced to stop an important public interest investigation because of the fear of breaking the law and individuals facing prison sentences.

As I said in Committee, I have never believed that the new offences in this Bill would be used regularly to imprison journalists, and I do not believe that is what the Government intend. But the risk, the uncertainty, the lack of clarity in the law and the chilling effect are there. As a result, the damage to the public interest is there.

To echo the noble Lord, Lord Marks, the Government to their great credit have listened to concerns set out so clearly in Committee by colleagues across the House in the debate on the amendment tabled by the noble Baroness, Lady Jones, and others. The Security Minster Tom Tugendhat has underlined his own strong personal commitment to media freedom. He, my noble friend the Minister and their officials have been extremely helpful and constructive in discussions with colleagues here and with the media industry to try to resolve these issues.

Government amendments tabled for Report to Clause 31 are an improvement on the Bill and I support them. They go some way to ameliorating the difficulties by changing “reasonably possible may” to “is likely to”, which brings helpful clarity. But I believe that, without a very clear signal from the Government that the purpose of their amendments is to ensure that public interest journalism is outside the scope of their Bill, on their own, they do not go far enough.

The reason for this is that lack of clarity in the criminal law is always the enemy of investigative reporting. Uncertainty as to whether something will end up in a lengthy jail sentence for a reporter of editor is anathema to media freedom. Here we have—even with the government amendments—lack of clarity and uncertainty, and a chilling effect from the wording that judges journalists for what they ought to have known.

Relying on the courts to interpret vague legislation is not good enough when it comes to media freedom, because we have all seen where that ends. There must be no ambiguity which would force the prosecuting authorities and courts to have to second guess the intentions of Government or which would allow a future Government not committed to freedom of expression to use the same prosecuting authorities and courts to suppress scrutiny of their actions.

Consider this not unusual scenario. It happens not infrequently that an investigation by a newspaper relating to a matter of national security looks as if it may end up criticising or embarrassing the Government or intelligence services. During the course of such a wholly legitimate investigation in the public interest, the editor of a newspaper receives a call from someone who says, “Publish this and you’ll be assisting a foreign intelligence service”. The editor and reporter have no way of knowing whether that is true or is just an attempt to stop an investigation. In such circumstances, the risk of prosecution because they “ought reasonably” to have known that they were assisting a hostile power will deter them from publication. Simply put, if you do not know what constitutes “conduct” amounting to a criminal offence, you are unlikely to pursue a story touching on national security issues. Even with the government amendments, that still therefore leaves a profound chilling effect.

I understand that the Home Office and the security services need “conduct” to be drawn sufficiently broadly in Clause 3 to protect the public in a wide range of circumstances—something we all want—but that is why, at the same time, it must be made unequivocally clear that genuine journalistic activity is not within the ambit of prosecution.

The purpose of my amendment is therefore to provide clarity and certainty by ensuring that those working on articles or investigations for publication by recognised news publishers—a term already defined by government in both this Bill and the Online Safety Bill—have a defence to rely on if they are threatened with prosecution for conduct that they must necessarily engage in during the course of their work. This simply codifies in the Bill the Government’s stated intention in regard to journalism, and is a straightforward, practical amendment to deal with the problems that have been identified throughout the passage of this legislation.

I have consistently said that I wholeheartedly support this Bill. National security is the primary task of government and one which this House takes incredibly seriously. However, all legislation of this sort is a balance between competing rights and responsibilities. Noble Lords will know that, 80 years ago, President Roosevelt set out his four freedoms. The fourth was freedom from fear, which is what this Bill is all about. We should not be fearful of the terrorist, the bullet or the bomb, or of a cyberattack, and this Bill rightly strengthens the armoury available to the state to deliver that. However, Roosevelt’s first freedom was freedom of expression—the source of all other liberty. He recognised, as so many after him, that a balance needs to be struck. This amendment seeks to do that by ensuring that this vital Bill protects the public interest that springs from investigative reporting at the same time as it protects the security of the public. In doing so, it would send a powerful signal to the rest of the world about the commitment of our Parliament to free speech—a global responsibility that we must take very seriously.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Black. I read up on him and it says online that he is a passionate defender of press and media freedom, and free speech. I think we might be coming at these things from different directions, but on these things we agree. I declare an interest as the mother of a journalist. I care very deeply about this issue of press freedom; it is a ditch I will die in—which looks likely, perhaps, today.

The Minister said he has heard from the media. I have heard from the media as well, and it has been quite interesting hearing what journalists have to say about this particular Bill. For example, only today, the Sun journalist Mr Harry Cole texted me to highlight stories that he broke that could have criminalised him. That is quite a useful example. One of the stories was, of course, Matt Hancock in his office with his then girlfriend—perhaps not a matter of great state concern, but at the same time it showed a carelessness on behalf on members of the Government for laws that they had brought in.

The government amendments in this group are proof that your Lordships’ House can force the Government to recognise errors in their legislation—of which, of course, there are always a lot. As I said at Second Reading and in Committee, the offences in the Bill are simply too broadly drawn; they risk ensnaring far too many innocent actions, turning them into serious criminal offences. I am glad the Government have now conceded that point, including a recognition that current drafting risks harming journalists alongside numerous other legitimate actors, such as charities and non-governmental organisations.

However, while the Government’s proposed amendments will tighten the offence, they still do not sufficiently protect innocent people from falling foul of these laws. That is why I have tabled Amendment 72, which would protect journalists unless they did something on the orders of a foreign power. This strikes a much better balance. It does not grant a total exemption, which would allow actual spies to claim they were journalists, just as it would not allow the Government to brand actual journalists as spies.

I like Amendment 18. It is not as good as my Amendment 72, but it has slightly more elegance. I strongly support it and hope that the noble Lord will press it to a vote. I do not want to take any glory for him but, if he chooses not to because he trusts the Government’s assurances, I would feel compelled to put his amendment to the vote myself.

I have been in a lot of legal briefings recently on several Bills, and all of them included phrases from the Government like, “Oh, you’ve got to trust us on this”, “Really, we assure you”, and “You can trust us”. Quite honestly, who trusts the Government any more? I bet millions of people do not—I certainly do not. I want something in the Bill that actually protects journalists.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords who have spoken in this debate for their very warm words. The strength of opinion highlights how important journalistic freedom is, and the Government take it extremely seriously. Whistleblowing will be dealt with in the next group, so if the noble Lord, Lord Purvis, allows, I will not deal with it in my response.

I am very grateful to my noble friend Lord Black for his amendment and for his general comments in support of this Bill. As I have said, we have listened to concerns raised by the media sector and noble Lords. The Government’s amendments are a direct response to them. I will endeavour to provide the clarity that my noble friend Lady Stowell asked for.

On my noble friend Lord Black’s amendment, the Government cannot accept a defence linked to the definition of a recognised news publisher. Rather than taking activity out of scope, the defence would act as a way for foreign powers, particularly those seeking to cause the UK harm, to avoid prosecution under this clause and engage in harmful espionage activity. If a journalist is deliberately colluding with a foreign intelligence service in relation to their UK-related activities, such as by revealing intelligence capabilities that could be exploited by that intelligence service, it is absolutely right that they should face criminal sanction.

I acknowledge that the amendment seeks to provide a targeted protection for journalists by referencing “a recognised news publisher”. The Government have serious concerns that any individuals working under the cover of journalism in foreign media organisations operating in the UK would be able to abuse this provision. Even if hostile state actors did not currently use journalistic cover to engage in espionage, having a defence such as this would almost certainly encourage them to do so. This defence would apply even if the conduct in question was probably against the public interest. This is simply not acceptable; it would give foreign states a back door to commit espionage. Accordingly, the Government cannot accept this amendment and I ask my noble friend not to move it.

However, I want to reassure the media sector that publication of an article that was critical of the UK Government, and which might incidentally be capable of assisting a foreign intelligence service, would not fall within the scope of this offence; nor would the handling of materials in the course of genuine journalistic activities, nor likely the other offences in this Bill. For an offence to be committed under Clause 3, an individual would need to engage in conduct intending

“to materially assist a foreign intelligence service”,

or know, or should have known given the information they had at the time, that it was likely that such conduct would do so.

The Government may profoundly disagree with the conclusions of some journalists, but we will not hide behind the criminal law to suppress genuine competing views and it is almost inconceivable that genuine journalism will be caught within the threshold for criminal activity. My noble friend raised some specific examples and there are many—for example, those relating Snatch Land Rovers a few years ago—but the Government do not consider that the publication of an article that was critical of the UK Government, and which incidentally might be capable of assisting a foreign intelligence service, would fall within the scope of this offence. I think it is worth repeating that.

Many of the examples that have been provided in various articles are stories which relate to terrorism. No journalist has been prosecuted for an offence under terrorism legislation. Even where examples are relevant to state threats activity, no journalist has been prosecuted for an offence under the Official Secrets Act. This Bill will be no different and the Government do not accept the view that it criminalises the activity described in the media.

The test of material assistance is key. To be “material”, the assistance to the foreign intelligence service must be important, considerable or in a significant way. As with all criminal offences, it is the specific circumstances of the case that will be important and will be a matter for the prosecuting authorities, but we would expect prosecutions to involve those with known links to foreign intelligence services, including evidence of a relationship, tasking or payment. Absent these links, the Government struggle to envisage even the most provocative piece of journalism meeting the threshold for the offence.

The noble Lord, Lord Purvis of Tweed, noted the Statement made last week on Iran International, and many noble Lords will have read it; it highlighted the potentially lethal operations of the Islamic Revolutionary Guard Corps taking place in the UK. Far from criminalising the important work of journalists, this offence is intended to protect Iran International, and others who live and work here, from such direct attacks on our people and values.

I turn to amendments tabled by the noble Lord, Lord Marks, with regards to security or defence interests under Clauses 1, 3, 4, 8, 12 and 14. These amendments seek to narrow the definition of “interests of the UK” to ensure a focus on the protection of national security and defence interests, alongside economic security interests. Similar amendments were tabled in Committee, so I will reiterate the concerns the Government continue to have with these changes, as they remain relevant. Narrowing the interest element to cover only security or defence interests significantly moves away from the “safety or interests of the UK” test that already exists and is understood within current espionage legislation. I am afraid these amendments move away from the status quo by creating a test with an unduly narrow focus on national security. While the noble Lord importantly made specific reference to interests pertaining to the UK in its economic security, these amendments continue to not include other critical UK interests relating to public health or, for example, the preservation of our democracy.

The noble Lord, Lord Marks, referred to the case of Chandler v DPP, as did his colleague the noble Lord, Lord Purvis. “Safety or interests of the UK” has been considered by the courts to mean the objects of state policy, determined by the Crown, on the advice of Ministers. We expect this interpretation to carry forward to the new legislation and there are safeguards in place to prevent the Government using this legislation inappropriately—for example, by deciding that somebody is acting against government policy but where there is no national security impact.

Each offence under this legislation includes a test that must be met in order for the offences to be committed. For example, for a person to commit a Clause 1 offence, they must obtain or disclose information that is protected for a purpose

“that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”

and the activity must be conducted for, on behalf of or with the intention to benefit a foreign power. This limits the type of conduct capable of being caught under this offence, and in particular the foreign power condition ensures that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.

I now turn to Amendment 72, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and signed by the noble Lord, Lord Pannick. The most concerning consequence of this amendment is that where a state threats actor, acting under a proxy, has been engaged in harmful activity, which was an offence under the Bill, they would not commit an offence even if it could be shown that they were receiving specific funding in relation to that activity from a foreign power. The House will note the references to “state threats”, “foreign powers” and “national security”. Much as the amorous adventures of Matt Hancock may be of interest, clearly none of those falls in the scope of this offence.

It is no secret that those with hostile intent try to hide their activities through genuine means, and through this amendment there is a real risk that they could operate through proxies in order to make it more difficult to be prosecuted. It is therefore clear to see that narrowing the scope of the foreign power condition will have a damaging impact across the Bill. The Government considers this amendment would create unnecessary loopholes for state actors to exploit.

I would like to remind the House that the Government amended Clause 31(2)(c) in the other place to put it beyond doubt that there needs to be a clear link between the conduct and any assistance or funding from a foreign power for the condition to be met. It is the Government’s view that this puts the focus on the foreign power, ensuring that financial or other assistance from the foreign power is caught only when it is provided to enable the person to carry out the conduct, not when it is just any financial or other assistance.

I would also like to make it clear that Clause 31(2)(d), which concerns activity carried out in collaboration with, or with the agreement of, a foreign power, requires the foreign power to be actively involved in that collaboration or agreement; it does not cover cases where a person’s activities align with state objectives. The Government therefore ask the noble Baroness, Lady Jones, not to press her amendment.

To conclude, as all speakers have noted, the Government have moved a very long way in ensuring that journalistic freedoms are not being unduly encroached in this Bill, so I hope noble Lords will accept our amendments and withdraw or not press theirs.

[Lord Black of Brentwood (Con)]

Before my noble friend sits down, I will offer one point of clarification. I will of course respond to the chair when called to do so after the next group, but I want to say that I am very grateful for the assurances he has given about the scope and intent of the Bill with regard to responsible reporting. My noble friend has made clear that Parliament’s intent in passing the Bill is not to interfere with the free press or investigative journalism and, on that basis, I will be withdrawing my amendment.

Amendment 1 agreed.

National Security Bill

Lord Black of Brentwood Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

Also, could an individual be required under Clause 72(2) to provide to the Government information about any arrangements made? What safeguards against political abuse are there for provisions relating to providing confidential communication? It seems to me that this clause on political parties—indeed, trying to cover them in an important Bill about national security—is completely out of line with what I think is the Bill’s intention.

[Lord Black of Brentwood (Con)]

My Lords, I speak in support of Amendment 66A in the name of the noble Baroness, Lady Jones of Moulsecoomb. This really important amendment gives us a chance to look at the Bill’s potential impact on investigative reporting. At the heart of that is Clause 29. I declare my interest as deputy chairman of the Telegraph Media Group, which is a member of the News Media Association, and note my other media interests.

I support this Bill, which rightly tackles the grave threats to the security of our country; I am sorry that I, too, was unable to speak to that effect at Second Reading. I support this probing amendment because it highlights a substantive issue arising from the Bill that relates to public interest and investigative journalism. Although more could be done—I will mention a couple of points in a moment—this is a limited, practical, technical amendment that does not in any way impact on the Bill’s vital central mission but deals with a serious threat to media freedom.

I do not for a minute believe that this Bill’s provisions will be used regularly to prosecute journalists but, crucially, I do believe that there are circumstances where it could be deployed to stop a major piece of investigative reporting—I will explain why—because of the subsequent chilling impact on investigative journalism, not least because of the rightly high, heavy sentences involved. I also think that there are major issues of press freedom globally on this point because the way in which we legislate in the UK, especially on issues of national security, tends to be copied in a much more dramatic fashion in far less democratic countries; this issue was powerfully raised in a letter from international press freedom organisations that was published today in the Times and which I co-signed as chairman of the Commonwealth Press Union.

I want to make one general comment before I come on to the specifics of this amendment. For more than 25 years, I have been involved in one way or another in major pieces of legislation that are not intended to have any impact on the media. However, unforeseen consequences often become apparent as they are scrutinised and the potential risk becomes clear. On almost every occasion, Governments of every persuasion have acted to amend a Bill to protect the legitimate interests of media freedom. I believe that this is one such occasion when the Government or this House should act when problems become evident. Where public interest journalism is concerned, we must always act with the utmost caution.

Let me explain the crux of the problem. Modern public interest journalism in a digitally connected world inevitably straddles national boundaries. It involves a combination of civil society and media organisations working together to report on leaked documents from the public and private sectors, the publication of which is genuinely in the public interest. It often relies on whistleblowers, who expose themselves to serious risk, and those who provide information that substantiates the truth of claims. The Panama papers and the Uber files are two such investigations, but this point also applies to straightforward reporting, such as that by the Daily Telegraph on Chinese influence in the UK and British citizens being placed on a Chinese watch-list; the reporting of the Daily Mail on the horrific experiences of female submariners on-board nuclear submarines; and the BBC’s story last year about a spy who used his status to terrorise his partner before moving abroad to continue intelligence work while under investigation. You can see how arguments might be made about any of these reports potentially being of use to a foreign intelligence service.

The problem arises because of the wide definitions used in Clauses 1 and 3 and particularly at the foreign power condition in Clause 29. Together, they could potentially criminalise one of the core functions of journalism: reporting on leaks of information about Governments, organisations and companies. They could cause problems for civil society organisations that work legitimately with journalists on investigations if those organisations are funded by foreign Governments, many of whom, like the United States, are of course sympathetic to the UK. They could cause serious problems for sources, who might reveal restricted information such as trade secrets when disclosing information clearly in the public interest to organisations that accept financial assistance from foreign states. They could cause serious problems for those collaborating with UK and international organisations which receive funding from foreign Governments. The admirable Organized Crime and Corruption Reporting Project, to take one such case, receives donations from the US Department of State and the Ministry of Foreign Affairs of Denmark. As we have heard, there is no distinction in the Bill between hostile and friendly sources of funding which would provide protection for such collaboration.

These might all be theoretical issues, as I am sure that my noble friend will say. When it comes to media freedom, history shows us that we must take the utmost care with problems of theory. However, one issue is most certainly not theoretical: the chilling impact that results from the combination of all these pitfalls and from this clause. When the potential sanctions under the Bill are so grave, would whistleblowers really want to take the risk? Would those involved in an investigation who might be needed to corroborate information be willing to take the chance? Would journalists want to put themselves and their editors and publishers in jeopardy? Would civil society organisations affected be prepared to do so? I suspect that the answer to all those questions is no, which would have significant repercussions for investigative reporting, particularly on international matters, something that the Bill never intended to do. The key point is this: journalists and whistleblowers may fall within the scope simply because they ought to have known a story about how a Government might assist another country. That is an incredibly low bar and cannot possibly be right.

The Bill does not need major surgery to deal with these issues. Instead, it needs the tightening up of the foreign power condition and the wording in Clauses 1 and 3. Ideally, as well as looking at this amendment, the Government will think again about Amendments 65 and 66 tabled by the noble Lord, Lord Marks, which have already been debated. Sadly, I was unable to contribute to that debate. Further technical amendments and tweaks to language will be needed in relation to the search powers in Schedule 2. Amendment 75 tabled by the noble Lord, Lord Marks, which I support, would also be helpful.

There must be a holistic approach to the problems of journalism arising from this Bill. I would be grateful if my noble friend could look again at that issue in the light of this debate and consider two points, both of which arise from the amendment moved by the noble Baroness, Lady Jones. First, “ought reasonably to know” in this clause is a low bar when the Bill is aimed at those who absolutely know what they are doing because they are involved in espionage. Let us raise the bar and not potentially criminalise whistleblowers—who already put themselves in serious danger—civil society organisations and journalists by taking that criterion out.

Similarly, we should ensure that the Bill’s provisions are aimed at those deliberately carrying out something which they know prejudices or is intended to prejudice the safety, security or defence of our country, not those who stumble into the purview of criminal sanctions while doing their job in the public interest. I am very grateful to the noble Baroness, Lady Jones, for tabling Amendment 66A, as it deals with a serious problem in a technical and proportionate way that in no way undermines the vital purpose of the Bill.

I very much hope that my noble friend is able to respond positively to this debate, either by bringing back an appropriate government amendment protecting media freedom on Report or, at the very least, giving a powerful signal from the Dispatch Box that the Bill is not aimed at journalism and those who work with journalists, or at hampering investigative reporting.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, as the noble Baronesses, Lady Jones and Lady Hayter, and the noble Lord, Lord Black of Brentwood, have explained, this group concerns the definition of “foreign power”, both for the application of the foreign power condition and for the Clauses 3 and 15 offences concerned with assisting a foreign intelligence service and obtaining benefits from so doing.

The noble Baroness, Lady Hayter, also raised a number of further and very interesting points in relation to political parties affected by the Clause 30 definition of “foreign power”, not only in relation to the offences but because, by Clause 81, the definition in Clause 30 of “foreign power” is incorporated into Part 3, on “Foreign activities and foreign influence registration scheme”. I will be interested to hear the Minister’s reply to the detailed questions that she posed. Interestingly, there is no reference to foreign powers in the definition of the prohibited places offences under Clauses 4 and 5. I invite the Minister also to explain why that is, so that we can consider his explanation before Report.

Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, it is a privilege to follow the noble Earl, who has brought so much wisdom and passion to the issue of child protection, which is rapidly becoming the leitmotiv of this debate—and rightly so. My comments will be about something slightly different: the impact of the Bill on journalism and the right to freedom of expression. I declare my interest accordingly as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

I first had the dubious pleasure of becoming involved in the issue of data protection more than 20 years ago, when the EU data protection directive was introduced in 1996. During the passage of the Data Protection Bill which implemented it, my noble friend Lord Wakeham, then chairman of the Press Complaints Commission, set out in his customary cogent fashion why that directive was potentially so grave for press and media freedom. He identified two key issues with the directive, and it is worth repeating what he had to say, because those issues are, if anything, more relevant today than they were then:

“The first is that the directive’s definition of ‘personal data’ is extremely wide, covering virtually any information relating to an individual, including details of political opinion, trade union membership, racial or ethnic origin and philosophical beliefs. The second is that the definition of processing specifically includes, for the first time, the use of material for journalistic purposes; and in turn journalism, of course, relies on the use of all the information covered by the directive. The very real danger in the combination”,


of the two is that it,

“could be used to introduce a regime that would gravely damage the freedom of the press, undermine investigative journalism”.—[Official Report, 2/2/1998; col. 462.]

What became the Data Protection Act 1998 avoided such a dismal fate, and indeed through Section 32 struck an appropriate, clever and enduring balance at the time between the right to privacy and the right to freedom of expression. That was in so many ways down to the guiding hand of Lord Williams of Mostyn, who is still much missed in this House. He went out of his way to consult the industry and respond to its concerns. I remember with affection many meetings with him, not least as he was able to make the issue of data protection amusing, which is no small feat. To pick up on the comments of the noble Baroness, Lady Lane-Fox, I do not know whether he would have been able to make it comprehensible—that may have been a challenge too far. But at the end of the day, he succeeded in ensuring that the legislation balanced the right to privacy with the right to free expression, which he treasured so much. We have heard a bit about that in today’s debate.

This Government have been equally as determined as Gareth Williams was to ensure that freedom of expression is protected and have consulted widely all the interested parties. I am particularly grateful to the DCMS Ministers Karen Bradley and Matt Hancock for their understanding and patience in this area of protection not just for journalism but for literary, artistic and academic activities. Great credit is due to all those who were involved in the long and often deeply tortuous negotiations over the general data protection regulation, who ensured that it makes absolutely clear that member states must provide for exemptions and derogations carried out not only for journalistic purposes, but for the purposes of academic, artistic and literary expression as well. Recital 153 of the GDPR is particularly welcome and important as it explicitly recognises how protections for freedom of expression,

“should apply in particular to the processing of personal data in the audiovisual field and in news archives and press libraries”,

and ought to be reflected in the Bill.

The Government have gone to considerable lengths to consult widely on the UK’s implementation of the exemptions and derogations in the directive and have clearly stated, as I am sure the Minister will reiterate again today, that:

“Processing of personal data by journalists for freedom of expression and to expose wrongdoing is to be safeguarded”.


That is what Part 5 of Schedule 2, relating to the exemptions for freedom of expression and information, alongside other clauses in the Bill, seeks to do.

Such protections are vital for us as citizens, who depend on a free press to hold those in positions of power to account. As importantly, particularly in a post-Brexit world—and we have heard a lot about that world today—proper implementation of the exemptions is essential to the continuation of the UK’s shining role as a world leader in the creative, cultural and communications sphere. For all those reasons, it is imperative that the existing protections in the 1998 Act are not just maintained in this legislation but enhanced, and applied consistently throughout the Bill.

I specifically use the word “enhanced” because, through no fault of the existing legislation, which was extremely well crafted, the defences inherent in Section 32 of the 1998 Act have begun to erode. That is mainly an unintended consequence of the Defamation Act 2013, with the passage of which many noble Lords here today were involved. That legislation, so carefully scrutinised in this House, has done much to stop trivial and vexatious libel claims in the courts, but regrettably some people, who are now no longer able to bring libel proceedings, have begun to stretch the boundaries of other laws to do so. Data protection is fast becoming an alternative remedy for those who wish to blunt investigative journalism or seek to launder a justly bad reputation by removing articles from the online record. That is something that we have heard a bit about today.

One issue that we should consider is whether the carefully sculpted defences set out in the Defamation Act 2013 could somehow be replicated in this legislation and applied to data protection claims. It also cannot be right for the Information Commissioner to have the power, set out in Clause 165, to fund legal claims against those pursuing literary, artistic, academic and journalistic activities; that power runs counter to the aims of the Defamation Act. No other sector of activity is singled out in that way, and there is no case for it.

Inevitably as the Bill is scrutinised, much of the devil will be in the detail, as the noble Lord, Lord Storey, said. A number of specific issues—many of them, I suspect, inadvertent or unintended—ought to be addressed if the Bill is not to have a restrictive and damaging impact on freedom of expression, and particularly on the media’s operations, all the way from the initial investigation of a story to the eventual archiving of material. For example, we need to ensure that the investigation and enforcement powers of the Information Commissioner, particularly in the area of pre-publication activities, are not extended, and that the existing checks and balances, which have worked extraordinarily well in the current regime, are rigorously maintained in this legislation, not reduced. If not, there is a danger that the commissioner could become some form of statutory press regulator, which is not what I believe the Government intend, and which most of us would believe to be abhorrent in a free society. Similarly, there needs to be explicit protection for academic, literary and media archives, including a transparent and effective regime for the assessment of “right to be forgotten” requests relating to internet search records. Those records are not just the “first draft of history”; they often now comprise the only record of significant events, which will be essential to historians and others in future, and they must be protected.

We also need to remember that, far more so even than was the case back in 1996, the media today, as with all artistic activities, are completely global. All those processing data for special purposes need to be able to receive and share certain personal data rights across the world. That is particularly true in relation to the protection of sources, and contact or email exchanges with them. We should never forget in this House that in some parts of the world, even partial release of sensitive information can have the most appalling repercussions, putting the lives of sources and reporters in grave, often mortal, danger. The protections and exemptions in this area need to be put in place and be absolutely watertight. Quite apart from the personal risks involved, investigative journalism such as that on the Panama papers could become quite impossible if we did not get this balance right.

I am conscious that I have been talking specifically about Article 10 rights on freedom of expression, but I absolutely understand that those have carefully to be balanced with other rights. My noble friend the Minister in his opening remarks made that point extremely well. It is important to underline that none of the points that I have raised here would in any way undermine an individual’s right to privacy, safeguarded by Article 8 of the convention. These limited changes would continue fully to protect that right, while providing much greater clarity and certainty for those processing data for the special purposes. Therein lies the effective balance which characterised the 1998 Act and which should, I believe, be the guiding principle and hallmark of what will inevitably become the Data Protection Act 2018.

I spoke earlier about the Government’s commitment to consultation on the detail of this Bill, and the constructive and open way in which they have worked with all those impacted in this area. I very much hope that the Minister will continue to undertake such work with all those who have an interest in this vital issue and that we can, during the passage of the Bill, make further amendments to protect what at the end of the day is the foundation stone of our democracy.

Hate Crime

Lord Black of Brentwood Excerpts

Wednesday 29th June 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

Let me reassure the noble Lord. I have already commented on this, but I have put on record the fact that there are EU nationals, along with citizens of other countries, who have made Britain their home. We celebrate and value their contributions to our economic growth. They have provided jobs, and the noble Lord is quite right to point out that there is a responsibility on the Government of the day to ensure that all citizens, no matter where they come from, are provided with safety, security and a sense that, yes, they belong. I am sure that comments that have been made today will be reflected on.

[Lord Black of Brentwood (Con)]

My Lords, does my noble friend agree that in such a dangerous atmosphere all minorities are at risk, including Britain’s LGBT community? I refer him to a report in Pink News yesterday of a mob going down Drury Lane singing, “Rule, Britannia, Britannia rules the waves. First we’ll get the Poles out. Then the gays”. Will he reassure Britain’s LGBT community that the Government will continue to do all they can to crack down on homophobic abuse and bullying?

[Lord Ahmad of Wimbledon]

I assure my noble friend that we support the sentiments that he has expressed about ensuring that people from the LGBT community are fully protected. Sometimes you get passing racism; I have experienced the question, “Where are you from?”, myself. I assure them that I am from Wimbledon. On a more positive note, we need to demonstrate what we are as a country. I was heartened by the fact that we had Gay Pride week last week and at the front of the Gay Pride parade was the London Mayor. Yes, he is the son of a bus driver, as is often said, but he is of Pakistani heritage and of Muslim faith.

Serious Crime Bill [HL]

Lord Black of Brentwood Excerpts

Tuesday 28th October 2014 Lords Chamber

Since this is the first opportunity that the House has had to debate this matter I do not intend to divide the House at this stage. However, I will be disappointed if the Government reject this amendment outright, especially when all that is offered in its place is a review and no action before the general election or a review of the code of practice. I beg to move.

[Lord Black of Brentwood (Con)]

My Lords, I declare an interest in this subject as executive director of the Telegraph Media Group and draw attention to my other media interests listed in the register.

I very much welcome this amendment. Although I have some concerns about aspects of the drafting, the noble Lord, Lord Strasburger, is to be congratulated on shining a spotlight on an incredibly serious and troubling issue arising from a piece of legislation that is now looking increasingly arcane. I fundamentally agree with him that we cannot wait for a permanent solution to this.

It is an issue that should concern every reporter in the UK and every citizen because of the impact on press freedom and the quality of our democracy. It is also an issue that has a resonance beyond our shores, which should be a real worry to us, because what we are doing in the United Kingdom is sending an authoritarian message to the rest of the world that it is all right for police forces or other public authorities to track down the confidential sources of journalists.

I do not need to dwell on the importance of confidential sources of information. It was put best in the case of Goodwin v United Kingdom in the European Court of Human Rights back in 1996:

“Without ... protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.

That is absolutely right. As we heard, the use of confidential sources is vital for whistleblowing and investigative journalism, but it is also crucial for day-to-day reporting on matters of public interest. In a democratic society, people need to be able to talk to the media about current debates without fear of reprisal or retribution. The alternative is sterile political and public debate, with a profound impact on the substance of our character and democracy. That is what will happen unless the chilling impact of this out-of-date legislation is not reversed.

It is a matter of regret to me to have to ask why we should have been surprised by such recent revelations. The Newspaper Society, representing Britain’s regional press, and the Society of Editors made clear during the passage of RIPA back in 2000 that its terms would inevitably lead to an erosion of the confidentiality of sources because they could so often be easily identified by information obtained under the new powers by a wide range of specified organisations. The newspaper industry at the time suggested that the number of organisations able to exercise RIPA powers should be limited, that the ground for the use of those powers should also be strictly limited to the most senior personnel and that all applications for use of such power should be subjected to prior judicial scrutiny, especially to protect confidential sources. The Act as it arrived on the statute book and various codes since then clearly did not provide adequate safeguards in any way.

Over the years since then, I have heard anecdotal evidence of the problems, often from local newspaper editors voicing their concerns, often about attempts to trace the source of leaks of council information by local authorities using RIPA powers of surveillance and access to telephone records. Occasionally, a case of this arose in the public domain. Back in 2010, the Derby Telegraph reported on how the local authority there dispatched two officers to a local Starbucks to spy on a reporter who had been seen talking to current and former council employees. That council used RIPA powers to do that because they give local authorities the right to watch and record people covertly. Just think about the disastrous impact on local press reporting of local authorities if such sources of information dried up. More importantly, we need to think about the impact on local people and democracy. Incompetence, waste and corruption in local government would remain uncovered and unpunished. It is the ordinary people who pay the bills for that who would really suffer.

As the noble Lord said, we are only now beginning to see the full extent of this problem, partly as the result of the work of the Mail on Sunday, which helped uncover this abuse through a sheer stroke of luck followed up by a brilliant piece of investigative journalism. My real concern is that we may be seeing only the tip of the iceberg. As the noble Lord, Lord Strasburger, said, we just have no idea about the extent of the abuse. Other examples that I have heard are extremely troubling. I draw noble Lords’ attention to the disturbing case of Sally Murrer, recently highlighted in Press Gazette. Thames Valley Police applied to a court to bug the conversations of this lady but did not tell the court that she was a journalist when it did so. Recently, that force had to admit that it used RIPA powers to bug the car of her alleged police source back in 2006. If either the law or a statutory code had forced police to make that clear, it would—as Gavin Millar, her QC, said—have ensured that the authorising authority had the chance to use the,

“correct, and very strict, legal test for overriding journalistic source protection”.

He also made the point that the use of the Act in this way, which he described as widespread, is almost certainly completely illegal under European law.

Mention of Europe leads me to a very brief point. I said earlier that I am anxious about the impact of this issue beyond our shores. It does not take a great deal of imagination to see how a Government in a Commonwealth country might look at how the law is utilised here and deploy something similar in a turbo-charged manner in their own country. That is already causing considerable concerns among world press freedom organisations. Ronald Koven, the acting director of the World Press Freedom Committee, wrote to me and put it this way:

“Police the world over have repeatedly shown they cannot be trusted to exercise needed self-restraint and their zeal must be contained by independent judicial supervision. That has unhappily proven to be the case in Britain as well ... It is the view of the World Press Freedom Committee that the law should be amended to impose appropriate and effective judicial oversight”.

We need to be mindful of the way that this issue feeds into debates in Europe, too. There, the European Newspaper Publishers Association—on whose board I sit—made representations on protection of journalistic sources in respect of very similar EU legislation on access to communications content, communications data and surveillance. In the context of the issue that this amendment highlights, those concerns also need to be treated with the utmost seriousness if we are not to end up in exactly the same position in a few years’ time.

I am aware that the noble Lord produced this as a probing amendment and of course he is absolutely right to do so. I support the principles behind it—particularly that of prior judicial authorisation—but, as I said, I have some concerns about the detail, because I do not believe that it would actually deliver the extremely high threshold that should be needed for police or other authorities to be able to access journalists’ sources. I also do not think that judicial authorisation would necessarily apply in all the cases where RIPA powers can be deployed. It is a very good start, but further thought needs to be given in those areas. Of course, there are now a number of inquiries into this issue and the abuse of RIPA. I believe the impact on press freedom and on the quality of our democracy should be guiding features of those inquiries. I hope that my noble friend will listen to the strength of feeling and that—either in this House or another place—the Government will come back with their own amendment to deal with the issue that the noble Lord’s amendment highlighted so importantly today and which, in a free society, we should treat with the utmost seriousness.

[Baroness Cohen of Pimlico (Lab)]

My Lords, I also rise to support the amendment. The noble Lord, Lord Strasburger, spoke about the need to align PACE and RIPA and thereby to protect journalism. I agree that journalistic material needs to be protected from police officers using RIPA provisions, which were designed originally to get at something completely different. It is equally important, though very much less a subject of public debate, to protect items subject to legal prejudice, which this amendment, if it became law, would do.

I am a solicitor—it is probably my only declarable interest—and, like all solicitors, a solicitor of the Supreme Court, which I would like everybody to remember as a statement. I have been consulted by people anxious about fraud, bribery and commercial organisations who are naturally seeking a safe and effective way of making their concerns known. They are whistleblowers. Any solicitor would make a file note, and it is not a happy thought that a police officer, solely on his own authority, could seek access to that note and thus to the relationship of confidentiality with our clients that we lawyers have been brought up to believe is a vital foundation.

It may also fall to any practising solicitor to be consulted by someone seeking, as for example in the Jimmy Savile saga, to allege that serving police officers were complicit in abuse, and then to be approached by a police officer, perhaps seeking to head off trouble at the pass, being able to access information via RIPA without ever having to explain to a judge what evil it was he was specifically seeking to expose. I accept—of course, I do—that client confidentiality can and must be breached in extremis and with the issue of a warrant or authorisation by a judge, but it should not be possible for police officers to avoid the PACE rules or to go round them and get at the principle of client confidentiality by using legislation that was never intended to do that.

We solicitors are all members of the Supreme Court. We are bound to assist it, but we are bound to assist judges. We are not meant to be a branch of the Executive and, as such, we ought to be subject—and all legally applicable documents ought to be subject—to the power of the courts and not to the power of the police, or indeed, if push came to shove, to the Secretary of State. I commend the amendment.

Crime and Courts Bill [HL]

Lord Black of Brentwood Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Black of Brentwood]

My Lords, I declare an interest as executive director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I want to speak to Amendments 11 to 19. This group of amendments covers issues that are wide ranging and, as the noble Lord, Lord Lucas, so ably demonstrated, extremely complex. They go to the heart of some fundamental issues of law and justice, impinge on matters which are central to the European Convention on Human Rights and impact on the nature of investigative journalism. To echo some of the comments that were made at the start of business, it cannot be right that they are introduced after barely two hours of debate in another place, at the tail end of a Bill with only a handful of days before the end of the legislative Session, and in a way which does not allow for proper scrutiny.

On the radio last week, the Deputy Prime Minister said that the meeting late last Sunday night to agree on issues of press regulation,

“focused on technical legal definitions of what represented exemplary damages. It dealt with a tiny, tiny piece of the jigsaw ... It was about filling in one piece of the canvas”.

That statement shows how very dangerous this whole issue is because important issues that relate to freedom of speech were treated simply as a,

“tiny piece of the jigsaw”,

agreed not with the industry that is going to be affected by them but with a lobby group, and they are now being pushed through at breakneck speed. The amendments from the other place are wrong in principle and fundamentally flawed. They are almost certainly contrary to European law and so will collapse or be struck down. They deal with problems of an analogue past and are, in the words of the Guardian, “illiterate about the internet”. They are a constitutional nightmare. This late-night legislative fix will end up bringing discredit to us because we should have spent time analysing, scrutinising and amending them.

It has been argued that these issues were examined by the Leveson inquiry and are a key part of the complex system of media regulation he devised. That is not the case, however, and this House has to understand that. These far-reaching proposals have had no analysis or study anywhere and certainly not by Leveson. I understand that criticising Sir Brian Leveson is akin to criticising Florence Nightingale, but his inquiry utterly failed to scrutinise the key legislative issues that arose from it. As the Economist described it this week, aspects of this controversial report were just plain “sloppy”.

Leveson never invited evidence on statutory underpinning or published a draft statute to be examined in detail, and never looked at the massive implications, particularly for the regional press, of the establishment of an arbitration service. Crucially for this group of amendments, he never looked in detail at exemplary damages. He never invited or received submissions. The only reference I can find in the acres of evidence was from Ofcom, which suggested he might look at,

“procedures to give courts power to penalise parties ... in legal cases where the party has not taken account of the complaints-handling process offered by the new body”.

Ofcom then adds that its,

“experience in fairness and privacy cases has not led us to believe that it is necessary to have such powers. It would inevitably lead to more litigation”.

This is hardly a ringing endorsement.

Noble Lords should also know that Sir Brian devoted just four paragraphs of his 2,000-page report to the issues before us, on the basis that they were “worthy of consideration”. In his report, he says that the matter has been,

“fully discussed by the Law Commission and I see no value in repeating their argument”.

The Law Commission report, which he used as a basis for a finding that exemplary damages were necessary to make his system work, was published in 1997 before the enactment of the Human Rights Act which changed the law in this area. There would have been no point trying to, in his words, “repeat the arguments” as that Law Commission report, which was supported only by a minority of those consulted and was inconsistent with the conclusions of the Supreme Court Procedure Committee chaired by Lord Justice Neill in 1991 recommending abolition of exemplary damages, was shelved at the time and has never been accepted. The proposals it contained on exemplary damages—the same ones we are looking at today in this group—were recently dismissed in the leading textbook on the law relating to damages as,

“a retrograde step, with its inevitable and twin results of allowing the civil law to enter the very different domain of the criminal law and of providing windfalls for claimants which are in truth unmerited”.

Before moving on to some detailed issues, I want to deal with the point that will be made that I am just tilting at windmills and that no one has anything to fear if they are part of an approved regulator. This is the so-called “incentive”, the carrot and stick to provide statutory support to underpin a regulatory system. Regrettably, that argument is a mirage, because the way this legislation is structured means that membership of a regulator is not a complete protection against exemplary damages and costs orders. I am thinking in particular of proposed new subsection (3) of Amendment 11. While the Bill provides that exemplary damages should not generally be awarded against a “relevant publisher” which is a member of an approved regulator, the court can disregard this prohibition and make an award of exemplary damages in strikingly wide circumstances that render the apparent protection of being a member of a regulator entirely illusory. All the court needs to do is to be satisfied either that the regulator when looking at a case behaved “irrationally”— unlike the Minister I do not think that is a very high bar for some judges—or that it would,

“have made an award of exemplary damages ... against the defendant”,

even though it was a member of the regulator.

That is compounded by the new clauses in subsection (2) of Amendment 17 on awards of costs—which are the real issue in cases like this and which could have a far greater impact than damages themselves—which mean that the court can award costs against a member of the regulator where the issues could have been resolved by the regulator's expensive arbitration service or it is,

“just and equitable in all the circumstances”

to award costs against the defendant. In other words, there are so many loopholes that membership of the regulatory body might be largely irrelevant.

As structured, the Bill does not provide any form of carrot and stick: in fact, it provides a disincentive to membership because it establishes a system of double jeopardy. A publisher could be part of an approved regulatory structure, for which it will, as the noble Lord, Lord Lucas, said, have to pay a lot of money along with exposure to fines, and then it could still face the prospect of exemplary damages and crippling costs in court. Why on earth should publishers do that and face paying twice? I fear that this Bill makes it less likely that publishers would want to join an approved regulator. Some smaller publishers in the regional and periodical press, in particular, may as well just take their chances and stay outside. If the Government want a new regulator with universal coverage—which is absolutely right—this is a bizarre way of going about it.

I am not a lawyer, but I have the benefit of an opinion from the noble Lord, Lord Pannick, Desmond Browne QC and Anthony White QC, which makes clear that the provisions contained in the amendments to this Bill are likely to be unlawful because they single out for punishment a particular category of defendant rather than a particular kind of conduct. As the opinion states:

“This is particularly objectionable where the category of defendant singled out includes the press. To punish the press for what others may do without punishment is inconsistent with the special importance that both domestic and Strasbourg jurisprudence attaches to freedom of the press”.

Because the proposals will catch many publishers, from individual bloggers to NGOs, they go beyond the recommendations of Leveson. This Bill is not even itself, in the jargon, “Leveson-compliant”.

We could face the absurd situation whereby a newspaper undertook an investigation in conjunction with a programme such as “Dispatches”; this is not unknown. Both could publish the material at the same time on different platforms, one online and the other on television. If there was a legal action on grounds of defamation, the newspaper, whether or not it was a member of an approved regulatory body, could be exposed to crippling costs and damages. However, under the amendments the TV programme that broadcast the same material would be exempt. That is a completely untenable position as a matter not just of law but of fundamental justice.

As the noble Lord, Lord McNally, mentioned, there is a great deal of jurisprudence in English case law which sets out the case against exemplary damages. They have been described as anomalous and indefensible in judgments from, among others, Lord Diplock, Lord Devlin and Lord Reid. Indeed, in one of the most recent cases where this issue involving the media was raised—that of Max Mosley v News Group Newspapers—Mr Justice Eady, who some say is no friend of newspapers, concluded that exemplary damages,

“could not be said to be either ‘prescribed by law’ or necessary in a democratic society ... There is no pressing social need for this. The ‘chilling effect’ would be obvious”.

That point about the chilling effect is extremely important because these clauses—as the noble Lord, Lord Lucas, rightly said—import a huge amount of uncertainty into the law; and uncertainty is the enemy of investigative journalism. Why should newspapers pursue a story that could leave them exposed to exemplary damages and costs unless they are operating against the background of a law that provides certainty?

The amendments allow for an award against a publisher where conduct is judged to be “outrageous”—as described in subsection (6) of Amendment 11—or

“such that the court should punish the defendant for it”.

Yet legal precedent rules that the use of this test for outrageousness is “far too vague”. Lord Diplock, in a wonderful phrase in one ruling, rejected it as being merely one of,

“a whole gamut of dyslogistical judicial epithets”.

Given that almost all publication of information concerning an individual engages his or her Article 8 rights—those of privacy—the focus of any action will inevitably revolve around whether a defendant's conduct was “of an outrageous nature”—something on which views will differ. Uncertainty and unpredictability in the area of freedom of expression are wholly undesirable.

There are further problems that will chill investigative journalism. First, subsection (4) of Amendment 11 gives the court power to look at a publisher’s “internal compliance procedures” to see whether material was obtained “in an appropriate manner”. That will invite claimants to include in legal cases questions about how information was obtained, with massive repercussions for confidentiality of sources. Journalists and publishers will inevitably be pressed to disclose information about sources in an attempt to avoid crippling financial penalties. It will positively discourage whistleblowing.

Secondly, there is the issue relating to costs in Amendment 17. The Bill turns on its head the principle that generally costs follow results. If these provisions become law, publishers—and this is particularly crucial for the local press—who do not agree to arbitrate a dispute, something which can be very costly, face the prospect that when they are sued in a libel or privacy case, they may have to bear the entire costs even if they are successful. This issue does not affect the traditional media, as is highlighted by the amendments of the noble Lord, Lord Lucas. He made that case extremely well.

The case against exemplary damages and costs orders in English law is overwhelming, and the implications are, as I have tried to set out, disturbing. However, even if this House decides to go down that road, it will face an even stiffer test in Strasbourg, where I am sure this Bill will eventually founder because of its incompatibility with Article 10 on freedom of expression.

I mentioned the case of Max Mosley, which ended up in the European Court where this issue of exemplary damages was considered. The Court concluded that it,

“is satisfied that the threat of ... punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention”.

We should take real note of the what the court said about how these measures would impact not on celebrities who have for too long been the focus of this debate but on political reporting.

Furthermore—and this is an important matter for Europe—the Bill discriminates between substantial commercial publishers whose business model allows them to afford membership of an approved regulator and small publishers or bloggers, such as those mentioned by the noble Lord, Lord Lucas, which cannot afford membership or may regard it as unnecessary or undesirable. That discrimination is impossible to justify under Article 10.

Everything about these proposed new clauses is wrong. They were cobbled together late at night over pizza, with no thought for the legal and constitutional issues involved. They exhibit no understanding of the digital world into which all publishers are moving. They are alien to decades of English law, and almost certainly illegal under European law. They would provide a serious blow to investigative journalism. They would disproportionately impact on smaller publishers and, in particular, the regional press. If ever there was a case where this House should have asked the Government and the other place to think long and hard, and to take their time studying the massive implications of what is being proposed, it is this. However, we do not have the ability to do so. I may be a lone voice making these points, and the cross-party deal with Hacked Off on its proposals means that these amendments will inevitably become law. I understand that. However, my noble friend is an honourable man and I ask him simply to pause and think again.

Justice and Security Bill [HL]

Lord Black of Brentwood Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Black of Brentwood]

My Lords, I do not intend to detain your Lordships long as I have just one central point to make, but as it relates in part to the media I must first declare my interest as director of the Telegraph Media Group and draw attention to my other media interests in the register. I slightly wonder whether I should follow the example of the noble Lord, Lord Judd, and declare that I, too, am a flat-footed layman, somewhat intimidated by the assembly of the great legal minds that have graced this debate.

As we have heard in many eloquent speeches, the Bill goes to the heart of some fundamental constitutional principles and, indeed, human rights: the duty of government to safeguard the state and its citizens and, consequently, their right to life; the right of defendants to a fair trial, based on information on which they have had a chance to comment; and the demands in a free society for open justice, fully and fairly reported on, and indeed scrutinised, by an independent and robust media.

In the debate on the gracious Speech, I raised some concerns that, based on the Green Paper which foreshadowed the Bill, this legislation would end up undermining some of those vital principles and expressed a great anxiety, which was echoed in the report of the Joint Committee on Human Rights, at,

“its failure to consider the impact of such a radical departure from long established principles of open justice on the media’s ability to report matters of public interest”.—[Official Report, 15/5/12; col. 361.]

It is to their great credit that the Government listened to the widespread concerns expressed by the media and many others about the Green Paper’s proposals and likely impact in this area and have acted so decisively to deal with them in the Bill before us. That is warmly to be welcomed and it shows quite how important consultation is in such legislation. I think that the noble Lord, Lord Butler of Brockwell, made that point earlier.

I am particularly grateful to my noble friend the Minister of State for his courtesy in writing to me after the debate on the gracious Speech to reaffirm the Government’s strong commitment to open and transparent justice and to outline, as we have heard a number of times today, how their proposals relating to CMP with significantly strengthened judicial control would provide much needed safeguards. I understand that his most helpful letter, dated 11 June, about the media aspects of this legislation is in the Library of the House. Those safeguards will go a long way to protecting the integrity of media reporting, with claims and allegations—and indeed the outcomes of cases—continuing to be made and reported on in open court, with material remaining closed only where it is compatible with Article 6 rights under the European convention. It is also extremely welcome news that the Government have decided that inquests should not be held in secret. A number of noble Lords have referred to that.

I still have some areas of concern, such as the power under Clause 11 allowing the Secretary of State to make an order that would extend CMPs to any court or tribunal, with, as I understand it, important procedural provisions contained in rules of court not subject to the same detailed scrutiny as primary legislation debated in this House. It is crucial that such a move, entailing a substantial departure from our tradition of open justice, will be permissible only in the rarest of cases. I am sure that is what the Government intend and it would be helpful to have confirmation of that.

That said, this is, in the scheme of things, an issue more of subsidiary concern on which I hope we will be able to get reassurances. I ask my noble friend the Minister to continue the Government’s constructive dialogue, particularly with the media, that has to date been so effective and to discuss any further suggestions that may come forward for additional improvements intended to safeguard public oversight in this area.

This important Bill is a complex balancing act, as we have heard in so many contributions, between open and fair justice and the security of the citizen. Achieving such a balance between security and liberty, like trying to mesh together Hobbes and JS Mill—not a task I would wish to undertake—is fiendishly complicated. We have heard many concerns today and I have certainly listened to thought-provoking comments. I was struck by the speech of my noble friend Lady Berridge. However, from my vantage point, the Government are to be congratulated on listening to legitimate concerns and striking the balance with care. As a leading article in the Daily Telegraph on 30 May put it:

“We are facing a continuing threat from terrorists whose methods are ever more sophisticated, and the manner in which we counter those threats must be protected. This measure reinforces the rule of law without giving ground to those who would do us harm”.

Those are sentiments with which I concur. At the start of this debate, the noble and learned Lord said that we should test this legislation by whether it is a sensible and proportionate response to the threats that our society faces. In my view, it passes that test.

Queen’s Speech

Lord Black of Brentwood Excerpts

Tuesday 15th May 2012 Lords Chamber

[Lord Black of Brentwood]

My Lords, I would like to address the impact on Britain’s media businesses of the legislation in the gracious Speech. I declare my interest as director of the Telegraph Media Group and draw attention to my other media interests in the register.

As noble Lords will be aware, these are not easy days for Britain’s newspaper and magazine industry, which is part of a publishing sector that employs 250,000 people. The inexorable, quickening pace of profound structural change in the industry, arising from the growth of digital media and the fracturing of audiences and advertising, combined with a very deep recession, has placed media businesses under serious commercial pressure. Then there is the long shadow cast by the Leveson inquiry and the menacing calls from some of the witnesses who have appeared before it for ever tighter restrictions on the media at a time when, commercially, they need much less regulation, not much more, if they are to survive. For some businesses, we should be in no doubt that survival really is a challenge.

Against that background, a number of measures outlined in the gracious Speech, with one exception I shall come on to, provide a rare glint of sunlight to pierce the May gloom. If not quite three cheers for the Government, there will certainly be two from the hard-pressed business of journalism. The loudest cheer will be for the excellent news that we are finally going to have a Defamation Bill to reform our oppressive and antiquated libel laws, which for far too long have had a serious chilling impact on reporting and investigation across the media. Like the noble Lord, Lord Thomas of Gresford, I hope that it will succeed in ending the scandal of libel tourism. We need to ensure that this Bill really will create the new, robust and workable defences needed to protect investigative journalism in the digital age of the 21st century. I am sure that the chances of that will have been greatly increased as a result of the careful scrutiny given to it by the Joint Committee so expertly chaired by my noble friend Lord Mawhinney, to which the Minister has already referred.

Key to the legislation will be a trio of tasks: first, to ensure that court action is restricted only to cases where the most serious and substantial harm to an individual’s reputation truly is at issue; secondly, to reduce the complexity and hence the cost of proceedings; and, thirdly, to give the Reynolds defence real bite by ensuring that there are strong practical defences to provide protection for legitimate investigative reporting. In order to deliver real change, it will be vital that the Government maintain a constructive dialogue with all the different parts of the media during the Bill’s passage. My noble friend Lord McNally has already shown himself to be a willing and constructive listener. There will be improvements to explore as well as potential pitfalls to avoid, in particular any extension of courts’ powers to dictate what goes on a newspaper’s front page. I know that newspaper publishers and editors at national and regional level stand ready to assist.

Another cheer is for the Crime and Courts Bill, which will introduce cameras into some courts. It is now nearly a quarter of a century ago that regional and national newspaper publishers took part in the very first working group to look at court broadcasting. This shows that perseverance pays. All those with a commitment to open justice and the public’s right to know will now hope for a swift rollout from Court of Appeal cases to the sentencing remarks of judges in the local Crown Court. This would help enrich online court coverage, particularly for Britain’s regional press for which this issue is very important, and rapidly increase public understanding of the work of the courts. I am sure that this legislation will be a great success and I hope that Britain’s media companies, along with the Society of Editors which has also worked very hard to bring this about, can on the back of it persuade the Government and the judiciary that responsible coverage of whole trials, with suitable safeguards, should not now be indefinitely delayed.

So hearty cheers for those two Bills, but there is not one, I am afraid, for parts of the justice and security Bill which point in the opposite direction to the openness of the Crime and Courts Bill. Proposals for the extension of closed material proceedings barring press and public from access to hearings and evidence in some civil cases brought against the Government open up the prospect of secret justice rather than open justice. I will not go too much further just in case my noble friend accuses me of being swept away in the tsunami of overhyped hysteria, but there are some serious issues here, as my noble friend Lady Berridge mentioned. Indeed, the Joint Committee on Human Rights has already expressed deep concern about the paucity of evidence in the Green Paper which foreshadowed this Bill to justify the proposals and its failure to consider the impact of such a radical departure from long established principles of open justice on the media’s ability to report matters of public interest. I am sure that we will have important debates in this House on this vital issue, as we will on the draft communications data Bill, which has a potentially serious impact on the confidentiality of journalistic sources.

I do not want to trespass onto tomorrow’s economic business but I also commend the commitment to introduce the enterprise and regulatory reform Bill. Many local newspaper businesses in particular, like many of the creative industries, which are often small-scale start-ups, continue to suffer from the burdens of bureaucracy and red tape. I agree with my noble friend Lord Grade: let the bonfire of regulations begin. I believe that this Bill may do something to get the flames going. I hope that ways might also be found to speed, simplify and cut the costs of the frankly Byzantine processes that local newspapers have to go through to change ownership. At the moment, too many local newspapers are still closing because of the fear of the burdens and cost of a Competition Commission referral. This Bill would be a good place to start wholesale reform of the system in a way that would be of real value to local communities up and down the country. It would be a real policy for growth.

There is a great deal to be welcomed in the gracious Speech for those of us who have an interest in freedom of expression and in the protection of investigative journalism. I hope that the Defamation Bill, in particular, can now make speedy progress through Parliament as the changes within it cannot come a moment too soon.

International Women’s Day

Lord Black of Brentwood Excerpts

Thursday 1st March 2012 Lords Chamber

[Lord Black of Brentwood]

My Lords, like other noble Lords, I congratulate my noble friend Lady Verma on securing this debate. Her record of service to this cause, both in this House and outside, is greatly distinguished, as her leadership in today’s debate today shows. I want principally to concentrate on issues facing women in the developing world, and I should therefore note my interest as chairman of the Commonwealth Press Union.

I hope that the right reverend Prelate will forgive me if I say that I feel a little like a preacher in seeking to take a text for my remarks, the third of the millennium development goals, which is to:

“Promote gender equality and empower women … Eliminate gender disparity in primary and secondary education, preferably by 2005, and in all levels of education no later than 2015”.

That is a fine aspiration that goes to the very root of this debate but, deeply regrettably, its achievement seems as far away as ever.

As we mark this day, we should remember some of the hard facts of life for women in the developing world: the fact that in many countries, violence against women is routine and often condoned; in Saudi Arabia, as the noble Lord, Lord Bates, said, a woman was beheaded in December for “sorcery”—one of five women put to death there past year; in the Yemen in October, government-sponsored thugs set viciously about a group of women celebrating the Nobel Peace Prize win of Tawakkol Karman, and stoned them; in Guatemala, the number of women being killed as a result of a culture of impunity for perpetrators of violence against women remains at an appalling level; the fact that 100,000 illegally immigrated prostitutes are working in the United States; Russia, some states in eastern Europe and Turkey all have high levels of sex slavery, while conservative figures put the number of children worldwide involved in the sex trade at about a million; the fact that a pregnant woman in Africa is 180 times more likely to die of pregnancy complications than here in western Europe; and the fact that women, mostly in rural areas in developing countries, represent more than two-thirds of the world’s illiterate adults, as the noble Baroness, Lady Kinnock, mentioned. When considering those facts, we should hear the words,

“Promote gender equality and empower women”

ringing in our ears.

What of those aims in a developed world context? The gender gap may be narrower, but it still exists. The World Economic Forum’s Global Gender Gap Report showed that while considerable progress has been made in recent years, some countries here in Europe still perform badly, including Switzerland and Italy; while Brazil, India and Pakistan, despite being countries that have had women Heads of Government, occupy the lowest ranks.

This debate highlights the role of women in promoting economic growth, and rightly so. In the developing world, as the noble Lord, Lord Shipley, said, women should be its driving force. However, the main point I want to make today is that in far too many countries women are unable to deliver their full economic potential because HIV and AIDS are still on the rampage. In many emerging economic powers in particular, including Russia and China, women with HIV and indeed other diseases of poverty and deprivation are unable significantly to contribute to the economic growth of those nations because they are too sick to do so. In Kenya, there are 760,000 women living with HIV and AIDS, and 1.2 million orphans. In Mozambique, there is a similar number. In Nigeria, 1.7 million women live with the virus. Throughout sub-Saharan Africa the figure is more than 12 million.

These are human tragedies, each of them. They are depriving children of mothers and, in the context of the debate today, they are depriving economies of those who should, in good health, be powering economic growth. That has to change; and change can only come not simply as a result of medical advances and the increased use of contraception but by breaking down the stigma and discrimination that is rife in these countries, forcing HIV and AIDS underground and cutting too short the life of too many women. Poverty, too, plays its part in a cycle of desperation, causing more rapid and more significant deterioration in the health of someone with HIV because of inadequate nutrition, housing and healthcare. Unless there is a concerted effort to deal with this dreadful situation, the attainment of the third millennium goal will remain a pipe dream.

Lest anyone thinks that the problem of stigma faced by women with HIV exists just in the developing world, I should add that it exists here too. I commend a report from the Health Foundation and the Terrence Higgins Trust, among others, about the experience of women with HIV in the UK entitled, My Heart is Loaded, which sets out some terrible tales of women living here in London who have been victims of discrimination, stigma and abuse. It highlights in particular the link between poverty and HIV, and the dependence on public services of many women with the virus. At a time of massive organisational change within the NHS and serious pressure on resources, I ask the Government to ensure that local authorities take account of the social care needs of women living with HIV, including the children they look after. One such practical example is ensuring that formula milk remains available for women with HIV who have just given birth.

We have heard today stories of success, progress and hope, but we must remember those in the developing world in particular. Many are still stigmatised or marginalised, or appalling acts of violence are committed against them, blunting their ability to play their full economic role in society. When we meet next year to mark International Women’s Day, let us hope that there has been some progress in turning those tides.

Digital Technology

Lord Black of Brentwood Excerpts

Monday 5th December 2011 Lords Chamber

[Lord Black of Brentwood]

My Lords, I am sure that we are all indebted to the noble Baroness, Lady Greenfield, for securing this debate, which is of huge long-term importance to our society. I had the pleasure of sitting next to the noble Baroness a year or so ago at a dinner for Autistica, which does such remarkable work in the field of autism, and I know from our conversation how passionately she feels on this subject. We are incredibly lucky that she has introduced this debate.

I should begin by declaring an interest as executive director of the Telegraph Media Group, as it is a company with digital technology at its heart. Perhaps more so than for any other sector of the economy, embracing digital is vital for the future of the media because the ways in which people consume and indeed participate in news in an online world have altered fundamentally in the past decade. News is now an active commodity to which people can contribute rather than just absorb. That is just one aspect of the way that the internet has changed people's lives—especially now that it is so easy to access.

Thanks to the decline in the cost of PCs and vibrant competition in the UK’s broadband market, digital technology is part of the life of at least three-quarters of the population. Of course, it is not just at home that people access digital technology. Smart phones, Androids, BlackBerrys and iPhones are increasingly finding their way into people's pockets, and 27 per cent of adults have one of these devices. Most importantly, 47 per cent of 12 to 15 year-olds have such a device. For them, digital technology is now intimately bound up with their daily lives. A survey in April this year found that this group spends an average of one hour 40 minutes a day online, which I calculate to be 10 per cent of all the time that they are awake. That is why this debate is so important.

The noble Baroness has talked rightly about some of the problems of this sea change in the way we live, but it is worth while reflecting on some of the positive contributions that can take place in a young person's development—and in particular on the impact of social networking sites, such as Facebook, MySpace and Bebo. These sites—and it is a characteristic of the internet in general—can be valuable in three ways. They are participatory, they force users to learn new interfaces, and they create new channels for social interaction.

A study published this year in Australia, The Benefits of Social Networking, found that these sites can in fact help deliver beneficial educational outcomes as well as facilitating supportive relationships and promoting a sense of belonging and self esteem. Of course it is vital that these sites are used responsibly, and there is a plethora of controls in place to underpin this. However, if that is done, social networking can help the flexibility of the mind and encourage the formation of political, ethical and cultural identities. Young people can also use such sites to access news in a way that they perhaps would not from a printed paper—and that is extremely useful in fostering an interest in current affairs and civics. All that is good for the mind.

The noble Baroness will be aware of a body of work undertaken by Steven Johnson in the United States that tracks the link between the increasing complexity of popular culture, including video games—mentioned by the noble Baroness—powered by new technologies, and the rise of IQ scores in the US over the past several decades, which he attributes to the development of critical thinking skills.

Perhaps even more important for us is the impact of digital technology on literacy. A report from the National Literacy Trust conducted among 3,000 pupils in 2009 found that 56 per cent of young people have a profile on a social networking site, and 25 per cent have their own blog. This compelling research shows that technology is important in offering a range of writing opportunities for young people. In turn, the trust reports a link between blogging and social media activity, writing ability and the enjoyment of writing. Young people who write on a blog are much more likely to enjoy writing in general than young people who do not—by a margin of 57 per cent and 40 per cent. About the same proportion also display greater confidence in their literary ability, believing themselves to be good writers. That was true across all socioeconomic classes.

The same goes for the enjoyment and understanding of music. The launch of the iPod in 2001 changed the way we listen to music and now delivers it digitally to 300 million users worldwide. That brings benefits beyond cultural learning. The Harvard University neurologist Gottfried Schlaug tells us listening to music has a neuroprotective effect which is again of benefit to the young mind. No doubt, there are many other examples.

This is a vital subject because it impacts directly not only on the health and well-being of young people but on the future direction of our society. I readily admit the problems and the unanswered questions, and I very much echo what the noble Baroness said about the importance of more research. However, it is important that this evening we take note of the positive advantages of digital technology and the role that it can perform in training young minds to think creatively and flexibly, in encouraging literacy skills and in fostering a sense of participation in society.