Queen’s Speech

Lord Black of Brentwood Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Black of Brentwood (Con) [V]]

My Lords, I am deeply saddened that I am not following on from my noble friend Lady Fleet, whose maiden speech we were much looking forward to. That she has been unable to speak is clearly the result of an administrative glitch and, for my part, I think the treatment of a new colleague in this way is unforgivable. I wish to say a word or two about the impact of the measures outlined in the gracious Speech on the media and, in doing so, declare my interests as deputy chairman of the Telegraph Media Group, and note my other interests as set out in the register.

One thing the pandemic has certainly taught us is the need for reliable, verifiable news from trusted sources of information. But while the need for trusted journalism has never been greater, the threats to it are becoming existential as the revenues which fund it evaporate. More than 260 local newspapers have disappeared since 2005 and, in the past year alone, there have been more than 2,000 job cuts across the media in the UK. The situation is grave, particularly for the local and regional press, which are now in real peril.

How do the measures outlined in the gracious Speech help? The online safety Bill is welcome. It starts a journey of levelling up, if you will forgive me adapting the phrase; that is, levelling up the essential duties and responsibilities of the platforms to those to which traditional publishers have long been subject, both in terms of legislation and regulation. The draft Bill includes a robust and comprehensive exemption for news publishers from its framework of statutory regulation, as my noble friend Lord Wolfson said earlier. That is absolutely right. During pre-legislative scrutiny of the Bill, we must ensure that this exemption is both watertight and practical so that news publishers are not subject to any form of statutory control, and that there is no scope for the platforms to censor legitimate content. We have the opportunity with this legislation to lead the world in ensuring proper regulation of news content on the internet, and to show how that can be reconciled with protecting free speech and freedom of expression. It is an opportunity we should seize.

Although the online safety legislation will go some way to help support independent, trusted journalism, the measures to be contained in the health and care Bill relating to a complete online ban on advertising of HFSS products regrettably point in the other direction, and I shall not support them. Of course obesity is a real problem, but there really is no credible evidence that this ban will be an effective solution. In this House, we are always guided by evidence; let us see and scrutinise it.

Advertising bans are objectionable because of the interference with freedom of expression, but they are even more objectionable where no compelling case can be made for them. They appease lobby groups but rarely have real impact. In effect, the Government’s case is that a ban might reduce calorie consumption among children by one-third of a Smartie each day—fine. But at the same time, the TV ban will take around £200 million out of the UK TV market each year, as well as revenue from UK publishers, at a time when broadcasters face huge challenges from the market disruption caused by other platforms. I declare my interest as vice-chairman of the ITV APPG.

This will directly impact employment in the creative industries when we should be investing in them as part of our drive towards global Britain. There is no evidence that this measure will help tackle obesity, but it will gravely damage the media.

We have not yet seen the detail of the Bill, but I urge the Government to think again about how they approach this issue, in particular to see whether there is a self-regulatory and more proportionate response in place of the blunderbuss of statute brought forward with no evidence.

Finally, I mention one thing not in the gracious Speech: legislation to give the Digital Markets Unit statutory powers to underpin a code of conduct to ensure fair trading, open choices, trust and transparency in digital advertising and, above all, to compel tech companies to pay for the content they carry.

Reform is long overdue. It is now more than two years since both the Cairncross Review and the Treasury’s Furman review recommended radical change to ensure the future of quality journalism, and nearly a year since the CMA’s excellent report on the issue was published. They all reached the same conclusion: change must come, and soon, if we are to save the free press. There has been progress, including the establishment of the Digital Markets Unit within the CMA, but it is not enough.

We need a competition Bill as soon as possible to give the DMU the statutory powers it needs to tackle the platforms. It is an opportunity for the UK to show it is leading the world in dealing with a problem—

[Baroness Scott of Bybrook (Con)]

I remind my noble friend of the four-minute advisory speaking time.

[Lord Black of Brentwood (Con) [V]]

My Lords, the UK’s media is in jeopardy. Time is not on our side. Let us make sure that the legislation we pass this Session helps and does not hinder.

Criminal Cases Review Commission (Information) Bill

Lord Black of Brentwood Excerpts

Friday 26th February 2016 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, I strongly support the Bill, which was so effectively and comprehensively introduced by the noble Lord, Lord Ramsbotham. Any miscarriage of justice is a travesty in human terms and in its impact on the reputation of justice, and it is right that we have the most effective measures in place to assist those seeking to redress wrongs. I have only one point to make. It relates to the protection of journalists’ sources, which the noble Lord, Lord Beith, mentioned just now. I must declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

The proposed extension of the commission’s power to obtain documents is understandably very broad. The reasons for that have been set out absolutely cogently, but we in this House should always be wary of such sweeping changes by scrutinising them properly and ensuring that they do not cause mischief later on. In doing so we should consider whether, in a small number of sensitive areas, such a power should be subject to some clear safeguards. One of the most obvious, as the noble Lord, Lord Beith, said, is access to journalists’ sources of information, given that the Bill—as was made clear in another place—extends to news agencies and,

“journalists and legal departments of newspapers”.—[Official Report, Commons, 5/2/16; Col. 1243.]

In this House, I do not need to dwell on the importance of the protection of sources, which is a vital component of press freedom and indeed of the proper functioning of democracy. But given that the Bill gives the CCRC a right to access sources and therefore potentially undermines that, we should be careful to legislate in a way which minimises the possible damage. Sources are of course already under assault, not least from the misuse of the Regulation of Investigatory Powers Act. The same issues are being robustly debated in the context of the new draft RIP Bill that is before Parliament. We should not do anything that adds to those burdens. This is especially true in the case of the CCRC because, paradoxically, the investigative journalism which has uncovered many miscarriages of justice can be so easily undermined where the confidentiality of sources is called into question. New evidence which could be of real help to the commission in its vital work could be less likely to come forward if people, including whistleblowers, know that their identity might be revealed.

I should make it clear that I am not proposing in any way that journalists and media organisations should somehow be exempt from the Bill. If it is to apply to every private individual and private organisation, reporters and publishers cannot and should not be excluded from that. But we need to see some safeguards which go rather further than the slightly inchoate ones that the Minister in another place put forward. There should be clear requirements on the face of the Bill that orders for the production of material made against private individuals and private organisations where the right to freedom of expression is engaged—and other fundamental rights may fall into that category—should be subject, at the very least, to the same safeguards required under the Police and Criminal Evidence Act procedures for journalistic material. That means that, before any order can be made, the court must consider: whether the material is of substantial value to the matter under investigation; that it is impossible to obtain it by other means; that the specific disclosure would be in the public interest in the context of the investigation; and the circumstances under which it is then held by the person in possession of it. In those circumstances, the media should also have prior notice of the application for the disclosure order and the right to make representations to the court.

Such a measure would ensure that the CCRC was still able to do its job more effectively in the way that the noble Lord, Lord Ramsbotham, set out, and as this important Bill envisages. It would also ensure that the vital issue of the protection of sources, and therefore the importance of press freedom, is always taken into account before any potentially damaging decision is made. In my view, it is simply a question of balance. Are the noble Lord, Lord Ramsbotham, and my noble friend the Minister prepared to look at such issues during Committee to ensure that we do not do anything that undermines robust, investigative reporting in the public interest?

Queen’s Speech

Lord Black of Brentwood Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, although he is momentarily not in his place, it would be remiss of me not to welcome my noble friend Lord Dunlop to this House, as he and I first worked together in the Conservative research department some 30 years ago. It is good to have him here. I also associate myself with the remarks made by the noble Lord, Lord Bew, about my friend Sir Brian Cubbon, whose exemplary commitment to public service was in the very best traditions of the Civil Service. We mourn his passing.

I want to address an issue of fundamental constitutional and legal importance, free speech, in particular with regard to the debate that is beginning about the future of the Human Rights Act. I declare my interest as executive director of the Telegraph Media Group.

I strongly welcomed the commitment in the Conservative manifesto to “defend press freedom” and,

“continue to defend hard-won liberties and the operation of a free press”,

alongside specific pledges on the protection of journalistic sources. I am sure none of us needs reminding about the crucial role of a free press. If we did, we need look no further than the role the press has played in uncovering the squalid corruption at the heart of international football, for far too long brushed under the carpet by those who should have been scrutinising and regulating it.

It will be the role of this House to make sure that the Government live up to those commitments on free speech, particularly in relation to a number of the Bills we will be receiving that could have a significant impact on freedom of expression. We should be on our guard. For instance, we concentrated a good deal at the end of the last Parliament on the inadequacies of the Regulation of Investigatory Powers Act, which was being regularly abused by the police and local authorities to spy on journalists. I therefore welcome the forthcoming investigatory powers Bill, which is intended to modernise the law and bring in appropriate oversight and safeguards for media investigation, reporting and protection of sources. The devil will be in the detail of those vital clauses and we must seek to ensure that they really do provide a “shield law” to protect journalists and their sources from intrusive surveillance. We cannot afford another RIPA, rushed on to the statute book without proper scrutiny of the serious impact it could have on freedom of expression.

We shall also have to look carefully at the extremism Bill, which will take the state into potentially difficult areas of censorship. We all want to see an end to the vile outpourings of extremist groups preaching hate and terror, but not in a way which undermines our own essential liberties. In other areas I am extremely pleased to see that there is to be a serious root-and-branch reform of the bail system, limiting pre-charge bail to 28 days in all but exceptional circumstances. In recent years the abuse of the bail system to punish journalists for suspected crimes, for which in the overwhelming majority of cases they have now been found not guilty, has had a profound chilling impact on press freedom. These reforms will go a long way to ensuring that this shameful position, which has already destroyed a number of lives, can never be repeated.

The main point I want to make surrounds the issue of human rights, about which we have had a huge amount of heat in recent days but precious little light. Indeed, it is dismaying that so many lobby groups are already trying to skew what should be a debate based on the facts by, in my view, wholly erroneously linking Labour’s Human Rights Act, which I believe to be a constitutional nightmare, with the maintenance of the fundamental freedoms which are every Briton’s birthright. The truth is that we enjoyed them long before the Human Rights Act came along, and we will continue to do so long after it goes, as I believe it must, at least in its current form.

As I made clear in a debate in this House back in May 2011, I am an unashamed admirer of the ECHR, which was established, as we have heard, after World War II to limit the power of the state—something which, as a Conservative, I wholeheartedly support. Over the years, great good has come from the convention, which has helped keep the peoples of Europe free and been a beacon of liberty for others in the world who do not enjoy the freedoms that we do.

As someone who cares passionately about free speech and is involved in the business of publishing, I know how important Article 10 on freedom of expression is, for instance. Newspapers have relied on it many times in the past to tackle reactionary legislation, including the libel laws which we reformed in the last Parliament, and will do so again, not least in an inevitable challenge to the draconian terms of the Crime and Courts Act on exemplary damages, which passed through Parliament with no scrutiny or, indeed, concern for the convention rights in 2013.

From a personal point of view, I am only too acutely aware of how the ECHR has helped bring about human equality, something from which I have benefited. The truth is that the ECHR was a fundamental part of our lives long before 1998 when this Act changed everything. As happens in many other countries, if someone believed that the state was not living up to its ideals, they could take a case to Strasbourg where we would be required to find a remedy for any breach. It was a common-sense system which worked well: it ensured that we maintained our fundamental human rights; that the courts could not be overruled; and that Parliament remained sovereign. It was the Human Rights Act that reversed this constitutional settlement, not the ECHR.

I know that many were disappointed that the gracious Speech contained no immediate commitment to legislate to repeal the HRA. I was not. I think it was a mark of great wisdom by the Government and an understanding that the damage done by the HRA is so far-reaching and so complex that it will take time to work out how to undo it. Indeed, one of the problems we have is that the Human Rights Act was in fact put on the statute book without enough rigorous consultation or scrutiny, and with accompanying rhetoric that this was merely a piece of technical and tidying-up legislation which could make it easier for people to take the Government to court. The White Paper accompanying the Bill said that it would, in line with the wishes of the architects of the convention, simply,

“enable people to enforce their Convention rights against the State”.

But that was not the case. The legislation went far further than that. By making the courts public authorities with a duty to enforce convention rights—as well as importing Strasbourg jurisprudence into our legal system—it ushered in a constitutional revolution.

If this fundamental change to our parliamentary and legal system was foreseen by its architects, it was never revealed—and that is one reason why it should go. If it was not foreseen, and all this has happened by accident, then that is another reason why change is essential.

I shall not go into the whole area of privacy—where I saw at first hand how the warnings that my noble friend Lord Wakeham gave this House about the way that the Human Rights Act would allow the courts to usher in a general law of privacy went unheeded. But that is now exactly what we have.

In his brilliant lecture at University College in December 2013, the former Lord Chief Justice, the noble and learned Lord, Lord Judge, dissected with great rigour the problems that have emanated from the manner in which we incorporated the ECHR. He said:

“Thomas Jefferson would have forecast that this assertion of judicial power was inevitable. He wrote in 1820 ... ‘It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions’. He was worried that the Constitution would become ‘a mere thing of wax in the hands of the judiciary’”.

I believe that, addressing those issues today, Thomas Jefferson would have applied them to the Human Rights Act. Undoing this mischief is one of the most serious issues facing this Parliament. It will take time to tackle. Let us have a serious consultation before legislation is brought to us. But let us ensure that it is a consultation based not on prejudices and myths but on facts. The Human Rights Act is nothing to do with our fundamental rights, which will long outlive a piece of constitutional vandalism.

Criminal Justice and Courts Bill

Lord Black of Brentwood Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, I am pleased to support my noble friend Lord Sharkey’s amendment. He has done all those who are committed to real equality for gay men and women, living and dead, a great service. I hope he has also ensured that Wednesday’s prom will be a sell-out, as indeed it should be.

I make three points in favour of what seems to be a sensible, proportionate and long overdue measure. First is the straightforward question of logic. If it is right that those who are alive can have quashed, under the Protection of Freedoms Act, convictions for a range of what were once sexual offences between consenting adults of the same sex, why cannot those who died before the law caught up with changes in society? To make a distinction between the living and the dead in this way seems to me to be wholly irrational.

Second is the question of equity and fairness. It is absolutely right that a pardon was granted to Alan Turing, whose tragic case served to highlight the plight of those who had criminal records for acts that should never have been crimes. However, what of the families and decedents of ordinary people? As the noble Lord said, there were up to 60,000 of them over the many generations when a sexual act between men was an offence. Benjamin Cohen, the campaigning publisher of PinkNews, which does so much to stand up for the rights of the gay community, made the point well in a letter to me:

“Almost as soon as the Protection of Freedoms Bill was passed, PinkNews readers questioned why those who had passed away could never have their name cleared, and the royal pardon granted to Alan Turing also posed many questions. Why him and not others, and not just famous people like Oscar Wilde?”.

That question needs to be answered. The noble Lord’s amendment does just that.

Finally, there is one other important point. The amendment sends a signal to the wider international community. My noble friend Lord Lexden and I, along with others across the House, have on many occasions raised the shameful treatment of homosexual men and women in the Commonwealth, where our poisonous imperial legacy still means that people of the same sex who love each other face prison and, in some cases, the death penalty when they display that love. We have done much in recent years to show those countries that we are absolutely setting our own house in order. The Protection of Freedoms Act and the equal marriage Act were hugely important parts of that process. Now it seems to me we have another opportunity to show the states that maintain repressive regimes how we have disowned the barbaric part of our past, ensuring that those who suffered as a result of that path and their families will benefit from the equality that now exists, even in death. We can then urge that those states too should begin what will be a long and slow process of decriminalisation. The amendment, which I hope the Minister will support, would be a potent symbolic act in that quest.

I was recently rereading EM Forster’s great novel Maurice, which centres largely on the issues of historical importance raised by the amendment. Forster’s characters, one of whom was imprisoned for an act of so-called gross indecency, lived in the shadow of that terrible injustice. All those who were sentenced to imprisonment with hard labour around the time that novel was written would now be dead, taking their shame, guilt and, in so many cases, criminal record with them to the grave. Forster said on the front page of his masterpiece, “This book is dedicated to happier times”. For people such as him and those ordinary people he wrote about, happier times never arrived. However, they are here now and the amendment is our opportunity to do right by those who were not as lucky as us.

[Lord Beecham (Lab)]

My Lords, I support the noble Lord’s amendment, but I have a slightly left-field suggestion to make. Part of the problem the Government appear to have is the process of dealing with applications—possible costs and all the rest of it. Would it not be possible, instead of requiring people to apply on behalf of the deceased, for the Government to legislate to disregard the convictions of anybody convicted for conduct which would not now be an offence? That would not involve individual applications, their processing and all the rest of it, but would be a blanket amnesty for anything which would not now be a criminal offence. I put forward that suggestion for consideration. I do not expect the Minister to leap at it with any more enthusiasm than he usually leaps at my suggestions. I see the noble Lord is nodding that he too may be interested in it. It is a suggestion he might care to look at. Perhaps we can consider it on Report.

Criminal Justice and Courts Bill

Lord Black of Brentwood Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, I may be about to enter the record books for the shortest ever Second Reading speech. My thunder was well and truly stolen by the Minister in his opening speech. I had intended to talk this afternoon at some length—something that I can now spare noble Lords—about the serious problems arising from Clauses 51 and 52 of the Bill on contempt, which, although crafted with the best of intentions, raised profound implications for freedom of expression and the public’s access to information. Instead—duly declaring my interest as director of the Telegraph Media Group—all I have to do is warmly to welcome the Attorney-General’s decision to drop these clauses from the Bill, following a full and frank consultation with media organisations, including the Newspaper Society, the Media Lawyers Association and the Society of Editors, and to praise him for listening to the arguments made, including those of the Joint Committee on Human Rights.

I should add that the whole area of jurors’ potential access to digital archives, which was at the root of those clauses, is of course one that needs to be treated with the utmost seriousness. It seems to me that Clauses 54 to 58 on juror research are a sensible and proportionate way to do that in an online age, as was said by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I should add that the media, too, maintain a great deal of vigilance in this area. All mainstream media organisations take the greatest care, when criminal proceedings become active, not to put material on the front pages and their websites, where such material could create a substantial risk of prejudice. That highly effective system, working alongside the new offences created in the Bill, should serve well the interests of justice, which is our primary concern. That comes in at just over one minute.

Defamation Bill

Lord Black of Brentwood Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

I am grateful for that but I think the noble Baroness does not understand what I was saying, which is my fault. I was saying that the Arbitration Act is a perfectly fair way of tackling this issue but these amendments do not give effect to that Act and a right of appeal. If they did so, it would be quite a different matter. I was trying to explain why they do not. For that reason, they violate Article 6 as well as Article 8.

[Lord Black of Brentwood]

My Lords, I should declare an interest as chairman of the Press Standards Board of Finance and executive director of the Telegraph Media Group. I have the greatest admiration for the noble Lord, Lord Puttnam. He and I have made common cause on a number of things over the years. However, we rarely agree on issues of regulation and I am afraid that I will not disappoint him today because I believe that what he is proposing is unnecessary. It is unnecessary for this House to intervene statutorily in press regulation and to deliver an arbitration service. Actually, it would be counterproductive and set back the delivery of the arbitration system which is currently being worked on.

As noble Lords will know—my noble friend Lord Fowler mentioned it just now—I have been working with my noble friend Lord Hunt and others to build a new independent regulator with tough powers backed by the force of contract law. An arbitration system is a central part of that, and it is important that I explain how it would fit in, not least in dealing with the news blackout that my noble friend Lord Fowler mentioned.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Black of Brentwood]

It is going to happen, and my lawnmower is out in force already. Media lawyers from across the industry are working flat out to establish a scheme that will be good for the public but not an intolerable burden on the regional press in particular. Crucially, we have to find a scheme that will not simply be a new cash cow for claims farmers. The scheme proposed by the noble Lord, Lord Puttnam, does not address the legitimate concerns—of the regional press in particular—about the problems that might be unleashed. Therefore, there is more work to do but excellent progress has been made.

What would stop it dead in its tracks is any attempt to establish a scheme by statute. There would be little point in a regulator setting up a scheme and the industry funding it if it were simply to compete with other bodies. If this amendment is agreed today, work will be likely to stop tomorrow because of the potential for what is in effect regulatory chaos. There is nothing in the scheme proposed by the noble Lord to stop the proliferation of a number of statutory regulatory bodies with different functions, codes, arbitration schemes and so on, and so it raises the potential for competition between regulators.

The truth is that no such statutory intervention will be necessary to set up a scheme that will be of real benefit to the public. We are clear that it can be delivered under the Arbitration Act 1996, which requires arbitrators to be impartial, to act fairly, to have rights of appeal and so on.

Legislating in this way is fraught with difficulties, as well as being unnecessary. As I have already said, it is a recipe for regulatory chaos. There is a danger of dragging senior members of the judiciary and the Civil Service Commissioners into matters of public controversy, and that would be highly undesirable. There are also serious concerns about whether such a compulsory scheme would be compliant with Article 6 of the ECHR, as the noble Lord, Lord Lester, said.

This is an excellent Bill but it is a liberalising measure designed to secure freedom of expression as well as protect the rights of the public. It therefore seems deeply ironic that what is being proposed is the introduction of a system of statutory supervision—press regulation—with the massive constitutional implications that that would bring. I regret to say that I believe the amendments are ill thought through, misguided and likely to prove unworkable. The most important point is that it would stall the initiative by the newspaper industry, which wants to deliver real change that will be of lasting benefit to the public. I do not believe that that is what the noble Lord or anyone wants, so I urge noble Lords to reject the amendment.

[Baroness Jay of Paddington]

My Lords, I am delighted to follow the noble Lord, Lord Black, who did not take part in our debate on Lord Justice Leveson’s report because he was abroad. I spoke in that debate and remind the House, and the noble Lord, Lord Black, that my main point was about the system that has existed very successfully for some years in Ireland, where many of the recommendations made by Lord Justice Leveson for the United Kingdom have been implemented simply and with no regulatory competition. That was done in the session of the Dáil in 2008-09 by inserting a clause into the Irish defamation Bill—a process that is very similar to the one being proposed by my noble friend Lord Puttnam this afternoon. I explained it on the occasion of the previous Bill and, like the noble Baroness, Lady Boothroyd, I shall not weary the House by going over all the details of the Irish situation again as those interested in this topic are already very familiar with them. Let it be said that the regulations are very similar to those proposed by Lord Justice Leveson and, indeed, the most important thing from the point of view of those seeking redress for press complaint is that the guiding notes say that the system is open and free to any citizen, dependent simply on the price of a letter or sending an e-mail. I am very happy to support the amendment.

Defamation Bill

Lord Black of Brentwood Excerpts

Tuesday 5th February 2013 Lords Chamber

Moved by

[Lord Black of Brentwood]

21: Clause 12, page 8, line 31, after “gives” insert “final”

[Lord Black of Brentwood]

My Lords, in moving the amendment, I refer to the declaration of interests that I made when speaking to the first group of amendments that we considered today. It was a matter of great regret to me that the fallout from the Leveson inquiry and the need to make swift progress on a new regulatory system occupied me fully before and after Christmas and meant that I was unable to attend proceedings in Grand Committee. It was a particular regret that I was unable to provoke wider debate about Clause 12, about which I expressed concerns at Second Reading, calling it,

“inimical to any basic concept of editorial and press freedom”.—[Official Report, 9/10/12; col. 963.]

I contemplated moving to have the clause removed, but I fear that that ship has sailed. If the clause is to remain part of the Bill, an important amendment needs to be made to it to deal with a situation where defamation cases go up through the court system to appeal. The Bill as it is currently drafted holds out the prospect of a publication having to publish something which is later quashed either in the Court of Appeal or the Supreme Court.

I imagine that the intention behind the Bill is for this power, which I still believe is a draconian power, to apply only after the final disposal of a case where appeals have been exhausted or after the time limit for an appeal has expired. This modest amendment to Clause 12(1) would deal with this point. I would be grateful if the Minister had any comments to make or could consider the point before Third Reading. I beg to move.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

I start by thanking my noble friend for tabling the amendment, and the noble Lord, Lord Browne, for his timely intervention. Amendment 21 would provide that a court may order a defendant to publish a summary of the court’s judgment only where it has given a final judgment for the claimant in an action for such a defamation. The aim of this amendment appears to be to prevent the court ordering the publication of a summary of its judgment while there remains the possibility of the defendant appealing the ruling. As the noble Lord, Lord Browne, has already said, I can assure my noble friend that this amendment is not necessary. As is the case in any other civil proceedings, a party seeking to appeal a decision may apply under Part 52.7 of the Civil Procedure Rules to have an order or decision of the lower court stayed. In considering whether to grant a stay, the court will be required to consider all the circumstances of the case, including whether it would create an injustice to enforce the terms of the judgment while an appeal is outstanding. We therefore see no basis for treating an order under Clause 12 any differently. I hope that with that reassurance and the comments made by the noble Lord, Lord Browne, my noble friend will see fit to withdraw his amendment.

[Lord Black of Brentwood]

My Lords, I am very grateful for the opportunity to raise the point, and for the assurances from my noble friend. I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Defamation Bill

Lord Black of Brentwood Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Black of Brentwood]

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

This is a remarkably special day, for, although not quite as infrequent as the appearance of Halley’s Comet, sightings of defamation Bills are rare and equally moments of great awe and wonder. That there should have been a gap of only 16 years since the previous piece of legislation, a period of time in which there has been the most unprecedented change in the way in which people communicate, is cause for rejoicing. The Bill is long overdue and extremely welcome.

That we have got to this point is the result of a great deal of hard work by many people who have already been mentioned in the debate. I join others in noting that all those with an interest in free speech owe eternal thanks to the noble Lord, Lord Lester of Herne Hill, who has consistently championed the cause and never given up the fight. I am delighted to join everyone else in being a fully paid-up member of his fan club. I should also mention the role played by the editor of the Guardian, Alan Rusbridger, an indefatigable campaigner for reform, and by Britain’s regional and local press, which has often borne the brunt of the chilling aspects of the current legal framework, which the noble Viscount, Lord Colville of Culross, outlined so well.

I will inevitably speak about the Bill from the media perspective, but in doing so I am acutely aware that the media’s interest in this issue is but one small part of it. Defamation and freedom of speech are intimately bound together and freedom of speech is the birthright of every Briton. In the digital age, when the ability of a single citizen to publish views on a bewildering array of platforms has never been so great, the question of defamation is important for us all. While a century or more ago, it might famously have been the preserve of the Duke of Brunswick and his manservant, today everyone has a stake in it. The media might still provide the headline-grabbing cases, but never have individuals been so exposed to the threat of long drawn out legal action and the punitive costs that go with it. The changes in the Bill will clarify and simplify the law, which will be of great benefit to claimants as well as defendants.

The media are always likely to be at the sharp end of defamation because of their reach, especially in the digital era. It is the profound, breathtaking changes that have taken place in technology that must form the backdrop to the Bill. When the previous piece of legislation went on to the statute book in 1996, the media and many forms of communication in general existed in much the same form as they had for decades. Few newspapers had websites—the Telegraph was the first to launch one in 1994—and they were merely static replicas of printed products. Some 16 years later, that world is dead and a new one is in being. Today a media group such as the one I work for does not just have a 30-odd-page printed product, but a digital offering which in our case produced 408.5 million page views in August alone from across the globe, some 190 million of them from outside the UK. Even now, the manner in which people are accessing that information is changing by the month. In July 2011, 17% of page views on the Telegraph website were via an app. That figure now stands at 30% and is growing rapidly.

In many ways, this issue of technological change goes to the heart of this Bill. To stand the test of time, it must be flexible enough to accommodate rapid developments in technology, which are not just changing the face of the media but communications between citizens. We do not want the fate that befell earlier pieces of defamation legislation. A flurry of libel Acts in the 19th century were made redundant by the arrival of the mass media in the 1890s; the 1952 Act preceded the arrival of commercial broadcasting; and the 1996 Act coincided with the burgeoning of the internet.

We have a real chance in this Bill to produce something that is practical, flexible and above all durable. We must seize it. I believe that this admirable Bill goes a long way to achieving that, in particular with the introduction at long last of the test of serious harm, which is a sensible and proportionate initiative to stop trivial claims that waste the time of the courts. This is extremely welcome. Later I will suggest how it might be strengthened even further to deal with the scandal of libel tourism.

However, against the background of the changing world of communications that I have mentioned, perhaps the single most important part of this Bill is Clause 8, which introduces the single publication rule. This change is vital to the future development of the communication industries in particular, as it will protect them against the current indefinite liability arising from the application of 19th century case law in the 21st century age of tablets, smartphones, Google, Facebook and Twitter.

News no longer appears once a day or once a week, but is likely to be permanently available for updating and rereading in digital archives which are growing at an exponential rate. Indeed, consumers now expect to be able to find old news whenever and wherever they want it. Journalists prepare their work for publication accordingly, in information services disseminated across multiple media platforms, be it printed, blogged, tweeted, texted, accessed by app or mobile, broadcast or streamed, in text, sound or audio-visual media, or a combination of all of them.

It is therefore a vitally important step to ensure that there will be protection for subsequent publication of a statement,

“which is substantially the same”,

as that first published to the public. If there is one slight problem with the Bill, against the background I have mentioned, it is with Clause 8(4), which waters down this protection. Subsection (4) says that the rule does not apply,

“in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication”.

That subsection takes no account of the fact that content is now published simultaneously on a range of different platforms; this means, arguably, that the manner of publication is almost inevitably different. To be effective, this clause needs to be crystal clear and at the moment it is not. I hope that my noble friend will look at this again in Committee to ensure that Clause 8 is genuinely fit for purpose in the digital age.

There are a number of other important issues to look at in Committee. The introduction of the responsible publication rule in Clause 4 is, in principle, very welcome; it seeks to import into statute the defences established in Reynolds. Those defences are of massive importance, not least to investigative journalism. Reynolds itself is an objective test. We need to ensure that this Bill neither undermines it nor, worse, neuters it by introducing a new set of defences which the courts may then spend another decade interpreting and the uncertainty of which could be profoundly damaging. I wholly agree with the points that my noble friend Lord Mawhinney made on this. Current case law makes clear that all the relevant factors can be taken into consideration by the court. Like the noble Lord, Lord Lester, I do not believe that there is a need for a tick-box checklist of factors. Setting them out in Clause 4(2) of the Bill is a high-risk strategy. I believe that to avoid potentially dangerous instability in this area, this list should be removed and the courts should be allowed to rely on and refer to the existing Reynolds criteria.

On one issue where I have concerns about the Bill, I will share the points made by the noble Viscount, Lord Colville of Culross. Clause 12 hands to the courts the power to order the publication of the summary of a judgment. This is potentially tantamout to giving judges the power to dictate the content of a newspaper or magazine front page or the running order of the 10 o’clock news, and is inimical to any basic concept of editorial and press freedom or indeed of an independent media. It is also a matter that is already covered by the appropriate media regulatory codes of the BBC Trust, Ofcom and the PCC successor body. There is no evidence that these have ever failed to produce a satisfactory publication of the summary of a judgment in a defamation case. The clause is both otiose and odious, and it should go.

I make a couple of general points in closing. I am concerned that the Bill does not do enough to tackle the issue of libel tourism. Clause 9 of the Bill does not deal satisfactorily with it because it is about claimants domiciled outside the EU, not defendants. It therefore does not address the problem of media companies in an age of global media being vulnerable to being sued in different jurisdictions under different laws for the same publication. I wonder whether the way to deal with this modern scourge might be to amend Clause 1 by making clear that publication is likely to cause serious harm to the reputation of a claimant only in England and Wales. I hope that the Minister will be able to look at that.

Like a number of others who have spoken, I must mention in passing the issue of high costs, which are still a problem in libel cases. I very much welcome the Government’s intention to bring in CFA reform in April, and indeed the work of the costs management pilot scheme dealing with defamation. For all this to be meaningful, though, the Bill needs to be complemented by changes to the rules of court to ensure that cost controls become the norm, not the exception, and that the new procedure is adopted to allow matters such as meaning, or whether something is comment, to be determined early. In the mean time, both claimants and defendants could be greatly assisted by the immediate removal of the practice direction that limits cost-capping to exceptional cases, as the Joint Committee on Privacy and Injunctions, of which I was a member, recommended. I urge speedy progress on this front.

In a recent lecture on this subject, Alan Rusbridger said, quite rightly:

“The truth is libel doesn’t exist in a vacuum”.

You cannot discuss one thing, he said, without looking at other issues that impact on freedom of speech, and that is absolutely right, a point also made with great clarity by the noble Lord, Lord Mawhinney.

This is a welcome, liberalising measure that, especially if amended under your Lordships’ eagle-eyed scrutiny, will have a positive impact, not just on investigative journalism but on every citizen’s rights to free expression. However, all that would be for naught if the current debate about press regulation led to the implementation of some form of statutory press controls, which would point very much in the opposite direction—it would be giving with one hand and taking away with the other. I know that the Minister will not be able to comment on that, but I hope that he will, with his customary cheeriness, simply note the point. The Bill is an enormous step forward, and one that every citizen should welcome.

Freedom of Information Act 2000

Lord Black of Brentwood Excerpts

Tuesday 17th January 2012 Lords Chamber

[Lord Black of Brentwood]

My Lords, I declare an interest in this subject as the executive director of the Telegraph Media Group. It is worth remembering the opening words of the 1997 White Paper on freedom of information, which began thus:

“Unnecessary secrecy in government leads to arrogance in governance and defective decision-making. The perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government”.

Fifteen years on, such sentiments remain as forceful as ever. That FOI has perhaps not lived up to all the expectation is perhaps because, in my view, the 2000 Act did not go far enough. The Government’s transparency agenda, including the increase in scope of that Act, is a welcome step to remedying some of its initial deficiencies. I wish it went further now, to include all contractors performing public functions on behalf of public authorities—an extension all the more vital because of the contracting-out provisions of the Localism Act and the health service reforms currently before this House. Will the Minister look at that?

There are concerns—eloquently expressed by the noble Lord, Lord Armstrong—that FOI has had a negative impact on government decision-making by increasing the practice of what is termed sofa government, with damaging consequences for government record-keeping. As a historian, I am only too well aware that a comprehensive and accessible archive of government decision-making is a precious legacy to future generations. However, I believe that those concerns are misplaced. The last inquiry that looked into them—the review of the 30-year rule led by Mr Paul Dacre, working with the distinguished historian Sir David Cannadine—concluded that:

“We accept that ‘sofa government’ may have occurred at certain times in twentieth-century British history– indeed, long before FOI and the introduction of the 30 year rule; but we believe that it is more likely to be a reflection of leadership style and political circumstances than to be motivated by any concern regarding the timing of the future disclosure of official documents”.

For those interested in maintaining a comprehensive record of the deeds and doings of government, which is available to the public under FOI or the 30-year rule, there are far greater concerns than FOI, of which the most vital is the vulnerability of digital records. Most business is now recorded digitally. These records are subject to rapid obsolescence, with often a natural life of only five years. Already the oldest digital government records from the early 1990s are lost for ever, because appropriate software is no longer available or storage media is corrupted.

There is also the problem of digital information overload, with, in the words of the 30-year review,

“vast amounts of ephemeral information paralysing the system”.

Although digital technology may assist in making government more open, it has the paradoxical effect of making a permanent archival record far more difficult to establish, because documents disappear into digital landfill. Those two problems present a huge issue for the long-term maintenance of government records. That is a deeply worrying problem to tackle. It would help to hear from the Minister about what the Government are doing to ensure that electronic record capture is an integral part of government IT infrastructure—the key point for all of us who are concerned about the maintenance of government records.

European Convention on Human Rights

Lord Black of Brentwood Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Black of Brentwood]

My Lords, we are all indebted to the noble and learned Lord for securing this fascinating debate. I want to address the impact of the convention on press freedom and privacy. I declare an interest as chairman of the Press Standards Board of Finance, which funds the Press Complaints Commission and appoints its chairman, and as an executive director of the Telegraph Media Group.

As a starting point, I make it clear that I am an ardent admirer of the European convention, which as we have heard was established after the Second World War to limit the power of the state—an aim that I wholeheartedly support. I think it no coincidence that the British Member of Parliament guiding the drafting of the convention was a lawyer at Nuremberg, Sir David Maxwell Fyfe, who saw up close the horrors of totalitarianism. The noble and learned Lord, Lord Irvine, in his opening remarks, characterised the media, of which I am part, as wanting to destroy the Human Rights Act. Let me make it clear that I do not wish to see the Human Rights Act destroyed, not least because I see the great good that has come from it, which the noble Lord, Lord Pannick, outlined with his customary eloquence. But there are valid criticisms of it, and I want to make one or two today.

I am no lawyer, but I believe that the architects of the convention intended it to be used, in the words of the White Paper preceding the Human Rights Bill,

“to enable people to enforce their Convention rights against the State”,

not as a charter to regulate private dealings. If the convention has become the subject of some opprobrium in recent years since the passage of the Human Rights Act, it is because it is being deployed as it was never intended—to enforce those rights in private disputes. That is why real problems have now arisen, in particular with the developing privacy law.

There is an important point here, which has been made a number of times but which I want to reinforce. It is commonplace to attack judge-made privacy law and lay the blame for this at the door of the judiciary. That is wide of the mark, and I agree with the comments of the noble and learned Lord. It is not the courts that are responsible for the changing balance between privacy and freedom of expression; they are merely interpreting the law, which does not spring from some form of public policy ether but from the Human Rights Act and the manner in which it incorporated the European convention into our domestic law. Parliament is responsible for that—not the judges.

Indeed, those involved in scrutinising the Human Rights Act who understood the delicate ecology of personal privacy and freedom of expression warned of such consequences. My noble friend Lord Wakeham, for whom I used to work, speaking in Committee on this legislation, told this House that the Bill,

“would damage the freedom of the press and … inevitably introduce a privacy law”.—[Official Report, 24/11/1997; col. 771.]

He added specifically on the issue of injunctions, with his typical prescience,

“in privacy cases the courts would inevitably err on the side of caution and would not refuse an injunction, despite the fact that a newspaper said that there was a public interest defence”.—[Official Report, 24/11/1997; col. 773.]

The Government took those concerns to heart and amended the legislation, with Home Secretary Jack Straw committing that,

“we have no plans to introduce legislation creating a general law of privacy”,

adding, on prior restraint,

“interlocutory injunctions should be granted … only in the most exceptional of circumstances”.—[Official Report, Commons, 2/7/1998; col. 541.]

That it has not worked out that way is because Section 12 of the Act did not, I believe, deal explicitly enough with the mischief that was predicted and the way in which claimant lawyers have now abused the legislation with injunctions, sometimes anonymised injunctions, increasingly becoming the new weapon in the armoury of reputation management for some whose reputations do not deserve to be defended. I can only speculate what Sir David Maxwell Fyfe would think about the convention being used by cheating footballers to protect their commercial image.

I will not spend time on the injunction issue other than to say that one of the reasons Governments of all persuasions have opposed privacy laws is that they know how statutory legal frameworks are too slow to keep up with the breakneck speed of media development in a digital age. The internet has had a permanent, transformative and highly positive impact on the press, one aspect of which has been the huge propagation in the number of platforms available to it. When the Human Rights Act was put on to the statute book, Google, Twitter, Facebook and other social media were all far off in the future. The law has remained static but the media have changed, which is one of the reasons I believe Jack Straw talked during the passage of the Act about the need to preserve self-regulation—in an internet age, it will always be the only truly effective way to protect personal privacy in a manner that can keep up to date with the bewildering and rapid pace of media development.

Indeed, the Press Complaints Commission has proved highly adept at dealing with often highly complex privacy issues in a common-sense, unobtrusive way that does not raise all the problems of public court cases or secret injunctions. The noble Lord, Lord Prescott, treated us to his customary bashing of the PCC. I do not think that that is borne out by facts; you need only to look at issues such as harassment, a key aspect of personal privacy, where the PCC has been hugely successful in dealing with so-called “media scrums”. There is also the PCC’s vital but unsung pre-publication work, of which the noble Lord himself once made use, which helps to deliver privacy to many ordinary people without impinging on freedom of expression.

Those successes—and they are successes—help to bring perspective to this issue. It is easy to think that there is some sort of crisis of privacy in this country. Yes, there are problems with injunctions and the relationship of the law to social media, but the truth is that, while not perfect, and I accept that point, in recent years the British media have greatly improved the way in which they deal with personal privacy, particularly for ordinary people who could never afford to use the courts. The problems are at the margin and we do not need new legislation to deal with them; in my view, that would be the wrong course. Instead, one of the ways in which we could help to deal with the issue of injunctions would be for the courts to say to claimants, “There is a code incorporating your convention right to privacy that binds all newspapers, and a body that enforces it. Try that before coming to us”. That is the logic flowing from the very welcome European Court judgment in Mosley, which I hope the Secretary of State will ponder during the review that he is conducting.

I finish as I began. The European convention is something to be celebrated. One of the best ways that we can deal with the controversy surrounding it is for the Government to go back to Section 12 of the Act, look at the issues that gave rise to it, assess its efficacy and, if necessary, put a hand on the tiller to adjust it as I have suggested. I am sure that there is no more delicate hand than that of my noble friend the Minister to do just that.