Press Regulation (Communications Committee Report)

Debate between Lord Keen of Elie and Lord Strasburger

Tuesday 20th December 2016 Lords Chamber

[Lord Keen of Elie]

I am certainly prepared to arrange to write a short letter explaining the Government’s view that it does comply and why we consider that it complies without going into a detailed legal analysis, if the noble Lord would regard that as sufficient at this time. As I said earlier, I would welcome his contribution to the consultation process and he might wish to reciprocate by responding not to me directly but in the consultation with his own expanded views as to why he does not consider that Section 40 complies. As the noble Baroness, Lady Jones, observed, Sir Brian Leveson himself, a most distinguished judge, appeared to be of the view at a very general level that such a provision would comply with the convention.

I turn to one or two of the additional observations made by noble Lords. The noble Lord, Lord Best, in a clear statement outlining the background to his committee’s report, himself observed that matters were far from resolved—a view with which the noble Baroness, Lady Hollins, concurred. He used the term “stalemate” with regard to the present position, which is why we have sought to bring about this consultation period. It is the one way to resolve such a stalemate.

My noble friend Lord Inglewood came up with a novel suggestion of tying in the complaints procedure to the operation of VAT. I have to confess that that does not strike me immediately as a use of Occam’s razor. The idea that we should merge our regulatory system of value added tax with press regulation appears at first to be a recipe for further potential confusion and difficulty—but I note his point about the various ways in which a cat can be skinned and of course we will give that further consideration.

I cannot accept the way in which the noble Lord, Lord Lipsey, suggested that the Government had spat in Parliament’s face with regard to Section 40. I simply do not accept that characterisation. He asked whether there was a better way or a compromise. There may be a better way; that is the purpose of the consultation. It is something that we must seek to bottom out. The noble Baroness, Lady Hollins, observed that there had so far been a failure to produce resolution—which is why, again, we consider it important that there should be this consultation period.

The noble Baroness suggested that the Government had intervened to suspend commencement of Section 40. That is not factually correct. There was never a commencement provision in respect of Section 40, unlike in respect of the provisions of the Act with regard to exemplary damages. The right reverend Prelate the Bishop of Chelmsford also referred to compromise. Again, that is why we are proceeding down the route of consultation at this stage.

I have already referred to the observations of my noble friend Lord Lexden, but they are worthy of repetition. He said that we have a “diverse, irreverent, bold” press that is woven into our freedoms and our liberty. That must never be forgotten.

The noble Lord, Lord Strasburger, raised the question of the recommendations in Leveson at paragraphs 83 and 84. I just remind him that paragraph 29 of the consultation document states:

“The Report”—

meaning Leveson—

“made recommendations on the relationship between the press and politicians. The Ministerial Code was amended and, as a result, all Ministers (as well as Special Advisers and Permanent Secretaries) must now disclose details of all meetings with media proprietors, editors and senior executives wherever they take place. This information is published on a quarterly basis”.

I add only that I take issue with the suggestion from the noble Lord, Lord Strasburger, that IPSO is to be regarded as some form of ploy. With the greatest respect, that does not acknowledge the work of Sir Joseph Pilling in reviewing independently the setting up and operation of IPSO. Albeit it has not gone as far as we may have wished, or as many would have wished, and it may not go as far as the regulatory regime would at present require, nevertheless it has moved and at least in the correct direction.

Finally, I simply note that as we go forward I acknowledge the observation of the noble Baroness, Lady D’Souza: you cannot take democracy for granted. You cannot take the freedom of the press for granted, either. When we speak of “truth”, we must again pose the question of whose truth we refer to. This Government are determined that a balance be struck between press freedom and the freedom of the individual. Those treated improperly must of course have redress. Likewise, politicians must not seek to stifle the press or prevent it doing legitimate work such as holding us to account when required. The conclusion of the Communications Committee report makes clear the importance of finding an adequate balance between the right to privacy and freedom of expression. I thank the committee for its ongoing work in this important area.

[Lord Strasburger]

I need to correct an error that the Minister made in his speech. He described my speech as being critical of the Pilling review and calling it a sham. Hansard will show I made no reference to the Pilling review so it is rather unlikely that I called it a sham.

[Lord Keen of Elie]

With respect to the noble Lord, he said that IPSO was a ploy and that the Government’s consultation was designed for only one response and was a sham, and he referred to the sham regulator IPSO—as Hansard will show.

[Lord Strasburger]

My Lords, I did not make any reference to the Pilling review.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Strasburger

Wednesday 13th July 2016 Lords Chamber

[Lord Strasburger]

My Lords, I have a question for the Government. Am I correct in believing that evidence derived from equipment interference is permitted to be used in court? If so, could not equipment interference lead to an equally large and costly process of evidence-gathering? Why is there a difference between the two sources of evidence?

[Lord Keen of Elie]

My Lords, the Government are, of course, committed to securing the maximum number of convictions in terrorism and serious crime cases. The experience of other countries is that the use of evidence gathered through interception may help to achieve that. For that reason, the Government have considered whether there is a practical way to allow the use of intercept as evidence in criminal proceedings.

The issue of whether intercept material can be used as evidence has been considered in great depth no less than eight times since 1993. Each of those reviews—published by Conservative, Labour and coalition Governments—has concluded that the current prohibition which does not allow intercept material to be used as evidence should remain in place. This is the position maintained in statute since 1985, and provided for in the Bill at Clause 53.

The most recent review, in 2014, was overseen by an advisory group of privy counsellors from all parties, including my noble friend Lord Howard of Lympne and the noble Lord, Lord Beith, who is no longer in his place. That review went further than any previous review by considering the costs and benefits of a regime for the use of intercept as evidence, even if that meant considerable operational upheaval for the intercepting agencies. The review found that the substantial costs and risks of introducing the use of intercept material as evidence in court would outweigh the uncertain benefits.

When the conclusions of the latest review were published in December 2014, the Home Secretary undertook to keep the issue under review and to revisit it should circumstances change. But there has been no significant change since that time. We appreciate that the amendment is intended to provide for a change of circumstances to be reflected in secondary legislation. However, we consider that such a significant change as introducing intercept as evidence would be appropriate for primary legislation rather than regulations, even those subject to the affirmative procedure.

Finally, on the point raised a moment ago, it is the case that material derived from equipment interference is used in evidence. That has, historically, always been the case, and there is no need to move away from that established position. I invite the noble Baroness to withdraw her amendment.

[Lord Strasburger]

I thank the noble and learned Lord for his reply, but my question was: why is it in one case suitable to use the evidence in court, but in the other not?

[Lord Keen of Elie]

Because it has been established as a matter of evidential law over many years that it can be admitted. Therefore, adequate provision is in place for its admission as evidence.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Strasburger

Monday 11th July 2016 Lords Chamber

[Lord Strasburger (LD)]

My Lords, I should mention that this subject was covered extensively in the Joint Committee on the Bill. It seems that the noble and learned Lord is suggesting that in order to be able to monitor a gang when we do not know if it is made up of three or four people, the language of the clause should be this open. Perhaps I may quote from some of the evidence that was given to the committee. The clause fails to,

“exclude the possibility that everyone who belongs to a certain trade union, political party or book club; visits a certain shop; attends (or has friends or family members who attend) a certain house of worship; subscribes to a certain publication; participates in a lawful and peaceful demonstration; celebrates or may celebrate a certain religious or national holiday”,

and so on and so forth. All those activities seem, perhaps as an unintended consequence, to be swept up by this provision. Recommendation 38 made by the committee states that,

“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants concerning a very large number of people”.

[Lord Keen of Elie]

A thematic targeted warrant will be granted only in circumstances where the Secretary of State is satisfied that it is necessary and proportionate. None of the examples cited by the noble Lord comes within a hundred miles of that.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Strasburger

Wednesday 27th April 2016 Lords Chamber

[Lord Strasburger]

To ask Her Majesty’s Government whether clause 217 of the Investigatory Powers Bill will give them the power to force a company to break its own encryption in a similar manner to the United States Federal Bureau of Investigation’s abandoned attempt to make Apple break the security of an iPhone.

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

My Lords, the Investigatory Powers Bill maintains and clarifies existing powers to ensure that terrorists and criminals cannot use technology to escape justice. The Bill provides our law enforcement and security and intelligence agencies with the ability to require communications service providers to remove encryption that they have applied themselves in tightly defined circumstances where it is reasonably practicable to do so.

--- Later in debate ---

[Lord Strasburger (LD)]

My Lords, Clause 217 of the Investigatory Powers Bill gives the Government almost unlimited powers to force, in secret, companies to remove “electronic protection” from their products. How do the Government intend to use this power in the increasingly frequent cases where a company has designed the security of its products so that even the company itself is incapable of unlocking the equipment or decrypting the data? Will Apple and others be required to redesign their products so that they can break into them, or will they be required to stop selling them in the UK?

[Lord Keen of Elie]

With respect to the noble Lord, Clause 217 does not provide anyone with unlimited powers with respect to these matters; it deals with technical capability notices—a notice which is given after discussion with the Technical Advisory Board to a company requiring it to retain the ability to decrypt information if and when an appropriate warrant is served pursuant to Clause 36 of the Bill. Therefore, it applies only to the extent that it is reasonably practicable for the company to comply. The relevant tests are clear in the Bill, as the noble Lord may recall, as he sat on the Joint Committee that considered the Bill between November 2015 and February 2016.