Data Protection Bill [HL]

Lord Lester of Herne Hill Excerpts

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

[Lord McNally]

I am very interested in that—perhaps we can debate procedure in this House another time. I do not think I am out of order, and I am within 30 seconds of finishing a very long debate, in which a number of people have asserted some rather hurtful things about those of us who have spoken about the freedom of the press.

I went into that little bit of history, because I do not think that in 30 years’ time Paul Dacre or Kelvin MacKenzie will be spoken of in the same breath as Cudlipp or Evans, or even Junor or Rees-Mogg. The Daily Mail is said to be the Prime Minister’s favourite newspaper, yet it is the embodiment of the nasty party that she once so rightly condemned. I think Matt Hancock will regret becoming Paul Dacre’s poodle, and I think the old print media will regret not protecting themselves within the strong walls of the royal charter, as the long shadow of court judgments and the growing power of the ICO come into play. On behalf of the victims of press criminality and malpractice, I express my admiration for the noble Baroness, Lady Hollins, for ensuring that their voice has not gone unheard.

The Government will have their business, but I urge Ministers to accept this amendment as being in keeping with the arguments, which they themselves have used during the passage of the Bill, that major regulation should not be in the hands of politicians and regulators should be independent of both government and proprietors if real press freedom is to be safeguarded. In order, I beg to move.

[Lord Lester of Herne Hill (Non-Afl)]

I have voted against a three-line whip on earlier amendments of this kind, and will do so again today on this amendment, or any others like it. I entirely agree with the Minister in all respects. The Bill is now fit for purpose and represents a fair compromise. Without making a meal of it, I regard the amendment in the name of the noble Lord, Lord McNally, and similar ones, as unnecessary regulation, unprincipled, contrary to freedom of speech and unique in the democratic world. I know of no country that is a true democracy that has anything like this. I am surprised that it should be put forward by anyone who is a Liberal Democrat.

[Lord Fairfax of Cameron (Con)]

My Lords, I have no personal interest in this matter, one way or the other. I regret to say that the Government have behaved far less honourably throughout this matter than I would have liked. As other noble Lords have said in previous debates, they have betrayed the expectations of all those who relied on Prime Minister Cameron’s undertakings. The fact that no Government can tie the hands of their successors does not make this any less bad. They have also conducted a consultation which, with the benefit of hindsight, looks like a sham. If the Minister takes exception to that allegation, I would point to the Government having disregarded the views of the 138,000 signatories of the 38 Degrees petition. More fundamentally, as others have said, they disregarded the views of Sir Brian Leveson himself. When the Government stated that the second part of the inquiry was not necessary, Sir Brian said, in a letter dated 23 January 2018:

“I fundamentally disagree with that conclusion”.


The Government’s worst failing here consists in having made this issue party political. If they had simply enacted the Leveson recommendations in full, including Section 40 and Leveson 2, this would not have happened and it is most regrettable. I have no animus one way or the other in this matter. Initially there was almost unanimity, both in Parliament and outside, that Leveson should be appointed and his recommendations adopted, as Prime Minister Cameron said. I regret that this Government—I speak as a Conservative—have failed to do that. No doubt the Government have their reasons for behaving this way. They will be judged on that, including by the 126 university lecturers in journalism who wrote on this matter two weeks ago.

However, as other noble Lords have said, the House of Commons—the elected Chamber—has now expressed its view on this matter more than once. As the noble Lord, Lord Pannick, pointed out in an earlier debate, this matter was in the Conservative manifesto. Therefore, it is now time for this House, reluctantly, to give way.

Data Protection Bill [HL]

Lord Lester of Herne Hill Excerpts

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

[Lord Black of Brentwood]

My Lords, I am going to give way to judicial friends who are probably waiting to speak and will be able to deal with the question about the courts better than I can.

[Lord Lester of Herne Hill (LD)]

I remember Lord Campbell of Alloway once saying to me, “Never make a serious point after the dinner hour”. I think I now understand what he meant. I am in some difficulty, because my noble friends have not moved Amendment 88. I was hoping to make a speech explaining why I profoundly disagree with Amendment 88. Even given the flexibility of the rules of procedure of the House, I am not sure that I can do that until one of them moves Amendment 88. I am going to give them the opportunity of doing so.

[Lord Skidelsky]

The noble Lord, Lord Black, paints an incredibly rosy picture of the state of press regulation in the last 20 years. What he ignores is the background to the Leveson inquiry itself and the statutory system—the royal charter and so on—which followed it. There were years in which many newspapers grossly abused their freedom of speech. That is why this interlocking set of propositions, as he calls them, got going and produced a system which all the parties in Parliament accepted in 2013. He says that no other country in the world has a system like ours. No other country has had such an abusive press in parts, though not all the press by any means. These amendments seek to create a balance between freedom of speech and the right of privacy by setting up an auditor to determine how that balance is kept. It is an independent auditor, not part of the Government or the state. The noble Lord, Lord Black, seems to confuse the role of the state with that of an independent auditor, so the argument falls to the ground.

--- Later in debate ---

Today, I had a letter from the Press Regulation Panel, which with all good organisation, I cannot find in my papers. The Press Regulation Panel stands ready to work for such a solution with all the best intentions in the world: not to have a state-regulated press, but to have something that gets that balance right between privacy and press freedom, privacy and freedom of speech. My noble friend Lord Lester has written a very good book about five freedoms. The two freedoms put side by side are privacy and freedom of speech. But as it is now, that balance has not been reached. The noble Lord, Lord Black, has not moved an inch this evening. I can only say, as I said before, that this issue will not go away; not because people want to hijack Bills, but because from the media there is no repentance, no remorse and no realisation that there is still a great public demand to see them mend their ways.

[Lord Lester of Herne Hill]

My Lords, I wonder whether it might be helpful for me to begin by trying to find what we can all agree on and then look at what we cannot agree on. Everyone here, I am sure, will agree that the right to freedom of speech and the right to freedom of the press are essential foundations of a democratic society. Everyone would agree that the proper functioning of a modern participatory society requires the media to be free, active, professional—I underline the word “professional”—and inquiring. That is why the courts recognise the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary. As a great American judge once put it, one should not burn the house down in order to roast the pig.

Everyone would also agree, including the noble Lord, Lord Black, that freedom of expression and press freedom are not absolute rights; they carry responsibilities. The fate of the News of the World and the journalists convicted of gross abuses of privacy are examples of the need for effective regulation of the press and a fair balance between competing rights and interests. The way in which the family of the noble Baroness, Lady Hollins, was treated by the press was completely disgraceful and I am not surprised that ever since, she has pursued these issues with courage and determination. That does not mean that she is necessarily right, but it does mean that we should acknowledge that she and her family are real victims of real press abuse.

My noble friend Lord McNally will remember, since he and I made the Defamation Act 2013, how that Bill was hijacked in the House of Lords in order to try to coerce the press into what is now seen as a desirable system of regulation. Members of the House will remember that the Prime Minister refused to allow progress to be made on the then Defamation Bill until it was no longer taken hostage. What happened was that a deal was done, with Oliver Letwin as the broker, I think, to try to reach a compromise between the conflicting interests of privacy and free speech. Hacked Off got into the room without the press being represented and the result was the striking of a bargain that the press was profoundly opposed to. It was profoundly opposed to it because of the swingeing penalties by way of punitive damages and arbitrary costs rules as a punishment for the press if it did not join the system that was seen to be post Leveson. The reason why the press did not follow that path was that, among other things, it was advised by the noble Lord, Lord Pannick, and by me that it would be entirely unlawful for the press to be subject to arbitrary costs rules so that even if the press won, it would be liable to pay the other side’s legal costs and punitive damages. The noble Lord, Lord Pannick, advised in particular, and I agreed with him, that these were clearly contrary to the European Convention on Human Rights.

It is not true, as my noble friend Lord McNally seems to think, that nothing then happened, because something major did happen. The press barons who had for years been negligent and I would say stupid in opposing effective press regulation through the Press Complaints Commission, which was a useless and toothless regulator, realised in the end that the writing was on the wall. They appointed Sir Alan Moses, a very independent Court of Appeal judge, to become chairman of the Independent Press Standards Organisation. IPSO tackles media abuse. Although I know that not all agree, it is the independent regulator under a very independent chair for the newspaper and magazine industry in the UK. It regulates more than 1,500 print and 1,100 online titles. It handles complaints about possible breaches of the editors’ code. It gives guidance for editors and journalists. It advises about the editors’ code and it maintains a journalists’ whistleblowing hotline. Members of its staff are available to advise the public, complainants, editors and journalists, and it monitors its members’ compliance with the editorial code. It also carries out standards investigations where it believes that there have been serious and systemic breaches of the code.

Amendment 88, spoken to by my noble friend Lord McNally, would remove the reference in Schedule 2 to the IPSO Editors’ Code of Practice as a code of practice to be taken into account in determining whether it is reasonable for the controller to believe that publication is in the public interest. It would leave reference to the BBC Editorial Guidelines and the Ofcom Broadcasting Code, but make it more difficult for a publisher governed by IPSO to defend itself by relying on IPSO’s professional code.

--- Later in debate ---

[Lord Skidelsky]

I wonder how relevant all those last bits are to the subject we are discussing.

[Lord Lester of Herne Hill]

The relevance of what I have just said is that Max Mosley, who funds Impress, is fanatical in his desire for a privacy law that involves prior restraints. That simply indicates a complete lack of balance in his approach.

[Lord Skidelsky]

I have one more question. I thought we were discussing the substance of the argument, not the personalities of the people who may support one side or the other.

--- Later in debate ---

[Lord Lester of Herne Hill]

I was not discussing personalities, but what happened in the case in Strasbourg. I was about to say that, ironically, the Strasbourg court of human rights had regard to the editors’ code in the course of giving its judgment, so it certainly regarded the old editors’ code as relevant for that purpose.

The Explanatory Notes to the Bill state:

“Article 85 of the GDPR requires Member States to provide exemptions or derogations from certain rights and obligations in the context of processing personal data for journalistic purposes or the purpose of academic, artistic or literary expression”.


The notes go on to explain how that works. Article 10 is engaged, as there is an inherent tension between data protection and the right to freedom of expression. The Government were right to recognise those inherent tensions, which are not new. Personal data is about private information. I am reliably told that those public figures who wish to keep their private information away from inquiry now, as a matter of course, use data laws to protect publication in newspapers. If the correct balance is not struck, the ability of the press to act as a watchdog will be impaired to the detriment of democracy. Investigations, such as those into sex grooming, will become more difficult to publish.

The exemptions in Part 5 of Schedule 2 to the Bill are not new. They carry forward similar provisions in the Data Protection Act 1998. There is no good reason to amend them to the detriment of IPSO titles. It would be punitive to do so. Article 88 treats the majority of the print media, regulated by IPSO, less favourably than the BBC, broadcasters regulated by Ofcom and, if the amendment of the noble Lord, Lord Skidelsky, is accepted, members of Impress. That would mean that members of IPSO would be unable to rely on their compliance with the editors’ code—to which they are bound by contract—in their defence. It is difficult to understand the justification for this form of discrimination against editors and journalists working for our national and regional newspapers.

[Lord McNally]

I do not know how many more pages my noble friend has of this. Somewhere in it must be the recognition that IPSO has not applied for recognition, which would have given it all the protections he is calling for. He does not do himself a service. One of the reasons why people get irritated by the lawyers in this House is that they think that if they make a long enough speech it must be so and only the wicked would disagree. The reason why IPSO would be under threat is that it has not sought recognition. He gave a long list of IPSO’s supposed strengths. It is a sweetheart organisation. It is run by the newspaper owners. That is what we are trying to move away from.

I have now found something on the independent overseas press regulation. David Wolfe QC has said that it is disappointing that there continue to be attempts to prevent the recognition system working and that it is frustrating that Section 40 of the Crime and Courts Act has not been commenced. I would be a lot more impressed with my noble friend if he got behind that, or at least gave his friends in IPSO some really good advice and asked them to try to find a way forward with press regulation, instead of giving them an absolute veto on seeking a solution to this matter. I have finished—for the time being.

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[Lord Lester of Herne Hill]

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

[Baroness Hollins]

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

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

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

[Lord Lester of Herne Hill]

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

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

[Earl Attlee]

The noble Lord has been very helpful to the Committee. He told us what the disadvantages would be for a media operator if they were not signed up to an approved regulator. Can he tell the Committee what the advantages would be for a media operator if they were signed up to an approved regulator?

[Lord Lester of Herne Hill]

I do not understand the question. It depends on which regime we are talking about. Right now, there would be no advantages.

[Lord Skidelsky]

I have never heard a more absurd argument than that we can trust IPSO because Sir Alan Moses is chairman of it. Sir Alan is an admirable person; he is personal friend. How long is he going to be chairman? Who is the next chairman going to be? What about the independence of the editors’ code? The code may be fine at the moment, but it can be changed any time the committee decides without Parliament having any say in it at all.

[Lord Lester of Herne Hill]

I have been very careful not to traduce Impress or Max Mosley, nor will I seek to defend Alan Moses. We are not concerned with individual personalities; we are concerned with a political problem.

[Lord Skidelsky]

With great respect, we are concerned with the permanence of arrangements set up and put into primary legislation. The chairman of IPSO is not there for ever, and the code can be rewritten whenever the committee decides to do so.

--- Later in debate ---

[Lord Keen of Elie]

The terms of the editors’ code are now referred to as the IPSO code, but I take the noble Lord’s point and I will take away and consider whether there is any material issue about using the designation of that code in the schedule. However, it is, with respect, essentially the editors’ code as it was originally recognised. As I understand it, that is reflected in the Information Commissioner’s current guidance under reference to Section 32, which is why it appears in the schedule in the form that it does.

[Lord Lester of Herne Hill]

I shall be corrected in due course if I am wrong, but I think the position is that the editors’ code was the code that was formulated under the PCC, and then when Sir Alan Moses became chair of IPSO the code was then amended to strengthen it—but I shall be corrected if that turns out to be mistaken.

[Lord Keen of Elie]

The noble Lord is quite right that it had its origin as the editors’ code before the PCC, but I am reflecting the fact that the Information Commissioner, being aware of the genesis of that code and its approval, has, as I understand it, under current guidance under reference to Section 32 of the existing Act acknowledged it as a relevant code. It seems to me that we may be arguing around designation rather than content, and I will give further consideration to the question of designation.

Removing that code—I will call it “that code” for present purposes—as proposed in the amendments would be a quite extraordinary step. Whatever one might think of IPSO, we should recognise that it has more than 2,500 members, including most of the major tabloids and broadsheets. Removing the code from the Bill would therefore remove protections for the vast majority of our press industry and cause significant detriment to what is a free press.

No codes adopted by a Press Recognition Panel-approved regulator are listed—and of course there is only Impress in that context. Under current legislation the Information Commissioner’s guidance on Section 32 does not include that code. That does not mean that such a code cannot be included in the future. However, before amending the list of codes, the current and proposed legislation makes it clear that the Secretary of State must consult the Information Commissioner. The self-regulator Impress has applied for its standards code to be included in the schedule, and the Secretary of State is currently considering that application—but in due course, once she has considered the application, she will have to refer to the Information Commissioner and consult her about that application.

I should also emphasise that the current list of codes, allowing for the point about designation, does not represent an endorsement of any one press regulator over another. This is about ensuring that the codes listed are appropriate, having regard to the need for data protection.

It is also worth noting that the exemption the Bill provides to those processing data for special purposes will be available to all journalists where the criteria set out in paragraph 24(2) of Schedule 2 are met. Where a publication is subject to one of the listed codes of conduct, it must take that code into account when determining whether publication is in the public interest. However, although the commissioner’s current guidance emphasises that compliance with industry codes will help demonstrate compliance, those publications that are not subject to a code are not somehow excluded from qualifying under the relevant exemptions, if they meet the three-part test in paragraph 24.

I appreciate that the intention of Amendment 91 is to ensure that we interpret the notions relating to journalism broadly and, in doing so, protect the right to freedom of expression. However, there is no requirement for this amendment if one has regard to Clause 184, the relevant interpretation clause, which makes it clear and underlines that material need be available only to a section of the public, and that would include those who subscribe by way of a fee for particular access to material. So these exemptions will extend to the sort of body that was referred to by the noble Lord in relation to Amendment 91. If anything, there is duplication, because we have not only paragraph 24(9), which refers to the public and a “section of the public”, but Clause 184, which defines the public by reference to, and includes, a section of the public. I believe that there was an earlier proposal to take paragraph 24(9) out in order to avoid that duplication.

I turn to the amendment tabled by the noble Baroness, Lady Hollins, and supported by my noble friend Lord Attlee. Article 85 of the GDPR requires member states to reconcile the right of protection of personal data with the right to freedom of expression and information, which is of course embraced by the European Convention on Human Rights. Although like, clearly, other Members of the Committee, I have great sympathy for the noble Baroness’s own experience, I firmly believe that the Bill strikes the right balance in reconciling these interests and aligns with the requirements of the regulation.

By contrast, the proposed amendments seek to reset that balance, so that the right to personal information privacy trumps that of the right to freedom of expression and information. This would be inconsistent with Article 85, which recognises the special importance of freedom of expression and provides a wide power to derogate from the regulation for processing for the special purposes. That point was elaborated by the noble Lord, Lord Lester of Herne Hill, when he underlined the importance of the freedom of the press in this context.

Amendment 87A seeks to amend the journalistic data protection exemption to make it available only where the processing of data is necessary for publication, rather than simply being undertaken with a view to publication. I fear that this does not reflect the realities of how journalists work and how stories, including the most sensitive and important pieces of investigative journalism, are put together and published. A journalist will not know what is necessary until the data has been gathered, reviewed and assessed.

Amendments 87C and 87D relate to what factors the controller must take into account when considering whether publication of data would be in the public interest. The amendments would remove the requirement on the controller to take account of the special importance of the public interest in freedom of expression and information, and make the exemption available only where, objectively, the likely interference with privacy resulting from the processing of the data is outweighed by the public interest.

Controllers already have to consider issues of privacy when considering the public interest. But this amendment goes too far in saying that public interest can be trumped by privacy, weighting the test away from freedom of expression. This is again contrary to Article 85, which requires a reconciliation of these rights. I understand the noble Baroness’s intent here, and the harm that she seeks to prevent, but the rebalancing that she suggests goes too far.

Finally, Amendments 89B and 91A aim to narrow the exemptions for journalists who are not members of an approved regulator as defined by the Crime and Courts Act 2013. Fundamentally, these provisions are about protections that journalists should be able to legitimately rely on in going about their important work. We should view these clauses through that lens—as vital protections that give journalists the ability to inform us about the world in which we live and to effectively hold those in power to account.

The Government do not condone the past behaviour of individual media organisations, nor, as I noted earlier, do we seek to legitimise it. Equally, though, we do not think the problems that Sir Brian Leveson and others have identified can, or indeed should, be fixed through the medium of data protection law. Indeed, the Government feel strongly that these important protections for journalists should be maintained.

We must strike the right balance in reconciling the right to privacy with the right to freedom of expression and information. I hope I have gone some way towards explaining how the Bill seeks to do that. I hope I have addressed the concerns that have been expressed through the amendments, and I urge noble Lords to withdraw them.

Digital Economy Bill

Lord Lester of Herne Hill Excerpts

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

[Lord Aberdare (CB)]

My Lords, as I indicated at Second Reading, I am extremely uncomfortable with the proposed shift from a merits-based to a judicial review standard of appeal from Ofcom decisions, and I very much support these amendments moved by the noble Lord, Lord Clement-Jones. Indeed, he has made the case so thoroughly and strongly that I can be extremely brief.

It is inappropriate that in a market as innovative and fast moving—indeed, fast changing—as telecommunications, it should not be possible to test decisions made by the regulator not just on their legality but on their correctness and fairness in terms of the merits of the issues raised. As the noble Lord mentioned, I have received briefings both from Ofcom and from a group representing the bulk of the telecoms industry and industry more widely, through the CBI, as well as from the technological sector through techUK.

I remain slightly baffled at the apparent contradictions between the arguments cited by the two sides. I would encourage the Minister to look very carefully at these arguments to establish as clearly as possible where the evidence points—perhaps one could describe it as the merits of the case—before proceeding towards allowing only judicial review-based appeals.

I will not go through the detailed arguments because there is not a single one on my list that the noble Lord did not cover better that I could hope to do. However, from what I have heard, I am far from convinced that the proposed narrowing of the appeals standard will benefit either consumers or investors—and we need a great deal of investment in this sector—let alone the wider national interest in fostering a fair, competitive and vigorous telecommunications marketplace. I am therefore happy to support either or both of the proposed amendments. I hope the Minister will have another careful look at this issue and consider introducing amendments of his own, designed to ensure that important issues relating to the merits of Ofcom reviews can be properly challenged.

[Lord Lester of Herne Hill (LD)]

My Lords, I support these amendments, which seem a very good compromise. They ensure fairness and balance and avoid the very narrow approach of judicial review regardless of merit in any circumstances, without going into the substance of matters in a way that would turn the review into a whole general appeal. For those reasons, I am glad that the noble and learned Lord, Lord Keen, is taking part in this debate. He will know a great deal about the subject from his private practice as well as his public practice. This is a good compromise. It may be that the Government can come up with something better, but this is certainly better than Clause 75 as it stands.

[Lord Stevenson of Balmacara]

My Lords, I am not a lawyer—I feel a bit uncomfortable joining this debate; I am sure there are issues it is much beyond my abilities to deal with. But I say to the Minister before he responds, the point made about the degree of concern in the industry is important. This is a big and complicated Bill with many different aspects. It reaches far into aspects of our digital world. This clause, however, is the one that has generated the largest number of responses and—to judge from the meetings I have had with people—the most anger.

In a sense, so what? If it is the right decision, it should go ahead. However, it is clear that there is a lot of support for the current situation, even though there are arguments against it. The point was made time and again that the existing arrangements seem to work well, so why are we changing them? The industry, as I said, is pretty well united against it. One or two are speaking up for it but they do not represent the majority of voices we have heard.

There is also a real danger that—particularly at a time of uncertainty over technological change and regulatory positioning—having a period when we deliberately create confusion and delay until the new guidelines, or baselines, are established, is probably not the best way of making progress. Uncertainty over a long period will affect investment, which is not what we want. So there are reasons for asking the Government to be very clear that this is the right way forward.

We all share the same wish: we want an efficient and trusted regulator that can deal with this complicated, fast-moving and complex area. But it would be quite improper to have a situation in which there was a very limited right of appeal on any case determined not to have been carried out correctly—not so much about the judicial aspects, but on the merits of the case; in other words, where the evidence does not support the decision that has been taken.

I do not understand quite what the difficulties are. I have looked back over comments made by the noble and learned Lord when he was Advocate-General for Scotland. He is on the record in a number of places and a quick search with an algorithm of some complexity, which I could not possibly describe, reveals him to have said several things about judicial oversight. As it has developed, he says, it has,

“provided us with a flexible standard of oversight, which in many senses is wide-ranging”.

However, judicial oversight is the issue and that is what we have to emphasise. He might like to reflect on that in relation to what has been said. There are other things—I will not quote them as I am sure he is embarrassed enough already, or perhaps not. But the issue needs bottoming out—there is a serious point at its heart. There are issues that will affect the whole nature of the business we are regulating in this manner which need to be resolved.

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

My Lords, I am obliged to the noble Lord, Lord Clement-Jones, for raising this matter because it has generated a great deal of heat and debate in the context of the Bill. I appreciate the point made by the noble Lord, Lord Stevenson, with respect to the number of responses there have been. I just emphasise that judicial review is a form of judicial oversight, and a very effective one, but I will elaborate on that in a moment.

We are aware that the major telecoms operators in particular, and their agents, have lobbied vigorously and in detail on this point. Indeed, the noble Lord, Lord Clement-Jones, brought out many of the points that have been made by their agents in the course of that vigorous and detailed lobbying. I shall not go into the detail of Ofcom’s position on this. It has expressed its position very clearly and we understand it. What I would say is that there is no single position for all utility sectors, and both judicial review and appeals on the merits may be used in the same sector for different kinds of appeals. It is not a black and white situation.

The Government’s case is not that this change is needed to ensure consistency with other utility sectors but that the public interest will be best served in the communications sector by an appeals regime that focuses on errors which Ofcom is alleged to have made, rather than asking the court to reach a different conclusion. Let us remember that Ofcom is a qualified regulator and its decisions are entitled to respect. They are informed decisions and they are not irrational. They are not determined on the toss of a coin. That is why judicial review is an appropriate approach.

The noble Lord, Lord Clement-Jones, also talked about consumers. I find that interesting. Perhaps I may refer briefly to the Which? response to Clause 75. It sees this measure as one of the most important currently contained in the Digital Economy Bill, saying that it will give the regulator the power and confidence to take the necessary actions to protect consumer interests without fear of costly and lengthy litigation procedures. Introducing a judicial review standard for appeals in telecoms will mean that decisions made by Ofcom in the interest of consumers should be easier to implement and quicker to take effect. That is a reflection of Ofcom’s own view of the matter. This is not necessarily about coming to the aid of Ofcom but about recognising these matters from the perspective of the consumer. That is extremely important.

Currently, appeals brought under Sections 192 to 196 of the Communications Act against Ofcom’s regulatory decisions are decided “on the merits” by the Competition Appeal Tribunal. That exceeds and, as the noble Lord, Lord Clement-Jones, acknowledged, effectively gold-plates Article 4 of the EU framework directive, which requires that the merits of the case are duly taken into account in any appeal. That is not quite the wording of the proposed amendment.

The result of this over-implementation is an unnecessarily intensive and burdensome standard of review that can result in very lengthy and costly appeals litigation, which in turn can hinder timely and effective regulation. Some of the appeals that have taken place have done so over extraordinarily lengthy periods. Of course, the very large communications operators are in a position to fund that sort of appeal process. Clause 75 will change the standard of review so that the Competition Appeal Tribunal will decide appeals against Ofcom’s decisions by applying the same principles as would be applied by a court on an application for judicial review and, in particular, judicial review of other administrative actions. This will focus appeals on the key questions of the legality and reasonableness of Ofcom’s decision-making.

The noble Lord, Lord Stevenson, suggested that there might be cases in which there was simply no merit in a decision. If that was so, and if Ofcom proceeded without reliance on the facts of a particular case, that would be amenable to review under a judicial review standard.

[Lord Lester of Herne Hill]

Judicial review itself varies according to whether or not there is a European element. If the review is about a case where free speech under the convention is concerned or an EU directive is concerned, then judicial review embraces the principle of proportionality. However, if it is not about a case where European law can be involved—either system of European law—under the deciding case law, judicial review does not apply the principle of proportionality. In other words, it still—in my view, wrongly—does not look at whether the means employed to pursue a legitimate aim are necessary to achieve that aim. Is not what I have just said an indication of the unsatisfactory nature of relying on judicial review as the solution?

[Lord Keen of Elie]

With respect to the noble Lord, Lord Lester, I have to say no, because here we are dealing with judicial review in the context of the EU framework directive, which requires that the merits of the case are duly taken into account in any appeal, therefore effectively introducing the issue of proportionality into that process. Therefore, even if there are cases which some might criticise as involving too narrow an approach to judicial review, that does not apply here. This is an incidence in which the issues of proportionality will arise in the context of judicial review. By taking this route, we are applying an appropriate standard to Ofcom’s decision-making.

As has been acknowledged by noble Lords, this is a fast-moving sector, and regulation needs to be able to keep pace with technological and market changes. This is rather difficult when appeals can drag out for a year after a regulatory decision has been made. As the UK’s expert regulator in the telecommunications sector, it is right that Ofcom itself should be given an appropriate margin of appreciation by the tribunals. That is why we have an expert regulator there—so that it can make an informed decision that should be given an appropriate margin of appreciation by the Competition Appeals Tribunal.

A judicial review basis for appeals is intended to be a flexible process that will ensure that those affected by Ofcom’s regulatory decisions can still challenge those decisions effectively within the framework of Article 4 of the EU framework directive. A number of Ofcom’s regulatory decisions are already appealable only on a judicial review basis. I made the point earlier that, with regard to individual regulators, you can find instances in which there is a merits-based appeal for some matters and a judicial review standard in respect of others.

By changing the standard of review to reduce over-lengthy and costly litigation, this clause will enable consumers to benefit sooner from the outcome of decisions made by Ofcom in pursuit of its statutory duty to further the interests of consumers. I emphasise that: one of Ofcom’s statutory duties is to further the interests of consumers. The clause will also remove a significant potential barrier to the participation of smaller communications providers in the appeals process, benefiting smaller, “challenger” communications providers. Again, they are inhibited by the prospect of massive merits-based appeals going before the Competition Appeal Tribunal.

The noble Lord, Lord Clement-Jones, has tabled two alternative approaches. Amendment 215 would replace the existing “on the merits” standard with a requirement for the tribunal to take,

“due account of the merits of the case”.

I acknowledge that the amendment essentially replicates the wording of Article 4 of the EU framework directive, albeit it is not identical to it. While this would in one view remove the gold-plating of the existing standard in a technical sense, the Government consider that it would not lead to any substantive change in approach. That might be why this proposal is being pushed so hard by the major operators in the telecoms sector. It would not, therefore, result in quicker appeals, timelier implementation of regulatory decisions or resultant consumer benefits.

Amendment 216 would alternatively replace the existing “on the merits” standard of appeal with a list of specified grounds. The tribunal would be able to uphold an appeal only where it was satisfied that Ofcom’s decision was wrong on one or more of these grounds. However, as noble Lords may be aware, the previous Government consulted on a similar approach in 2013 and we do not consider that this approach has merit. On balance, we consider that such an approach would risk significant satellite litigation if it were to be introduced—about the nature of the new standard of appeal, for example, which could lead to longer appeals and further regulatory delay. A standard of review based on judicial review principles, including the principles of proportionality in the context of the application of the European directive, which is well understood and used in many other sectors, will minimise this kind of uncertainty. In these circumstances, I invite the noble Lord to withdraw his amendment.

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Moved by

[Lord Lester of Herne Hill]

217: After Clause 76, insert the following new Clause—
“The BBC Charter: timing
(1) The Communications Act 2003 is amended as follows.(2) After section 198ZA (inserted by section 76 of this Act) insert—“198ZB The BBC Charter: timing(1) The first BBC Charter to be granted following the day on which this Act is passed must have effect for a term of 11 years beginning with the day on which it is granted, and each subsequent BBC Charter must have effect for a term of 10 years beginning with the day on which it is granted.(2) In this section “the BBC Charter” has the meaning given by section 362(1) of the Communications Act 2003.””

[Lord Lester of Herne Hill]

My Lords, this is a paving amendment for this group of amendments. My noble friend Lord Clement-Jones asked just now what the appropriate collective description of Queen’s Counsel is. I was pondering that; at first, I said to myself, “Avarice”, but then I thought that the true answer would be given by The New Yorker book of cartoons, which had a cartoon of a lawyer looking at his client and saying, “How much justice can you afford, Mr Pitkin?”

The Committee will be deprived of several speakers who cannot be here today, who have supported this amendment and the others in the group. They include the noble Lords, Lord Pannick and Lord Inglewood, who asked me to apologise on their behalf.

I explained in previous debates why I believe that statutory underpinning is needed to protect the BBC’s independence and viability, free from political interference. During the take-note debate on the draft BBC charter on 12 October 2016, I expressed the hope that the drafts would be amended. I pointed out that the central problem with the Government’s proposals for the charter—raised across the House by, for example, the noble Lords, Lord Fowler, Lord Inglewood and Lord Best, former chairs of the Communications Committee, the noble Lords, Lord Stevenson of Balmacara, Lord Burke, Lord Pannick, Lord Colville and the noble Baroness, Lady Deech, and my noble friends Baroness Bonham-Carter and Lord Foster of Bath—is that there are no statutory criteria or requirements that must be met in the charter or the agreement with the Secretary of State.

I noted that the draft charter and agreement did not put the Government under any duty to ensure that the BBC remains independent. They contain no obligation to ensure that the BBC is properly funded to perform its public functions. There is no commitment to avoid further top-slicing of the licence fee after the transfer of the cost of free licence fees for the over-75s, which will have a serious adverse effect on the BBC’s funding and programming—a 20% to 25% cut in licence fee funding. In my view, that was unseemly and deeply regrettable, but it is now too late to reverse it.

I criticised the lack of an independent process for appointing the members of the new unitary board on merit, to prevent cronyism. I warned that Ministers remained able to determine what “distinctiveness” means. There was no protection for the BBC against much richer competitors, challenging the current and future BBC programming. Powerful criticisms to similar effect were made across the House, but the Minister did not give ground on any of those points. The new charter and agreement were brought into force completely unchanged. As the Minister may confirm—I hope that he will—the Government retain the right to make further inroads into the BBC’s revenue by transferring responsibility, including liability and costs, for any public expenditure.

I also spoke during the Second Reading debate on the Bill on 13 December 2016—I am becoming something of a BBC charter bore in this House. I explained that what I meant by statutory underpinning is that Parliament should prescribe the basic principles protecting the BBC’s independence and viability as a public service broadcaster. I concluded by describing myself as an optimist and expressed the hope that the Government will sympathise with our moderate and practical approach. I am still optimistic that we may reach agreement with the Government on a protective framework of principles during the remaining stages of the Bill’s passage. That would be in the Government’s, and the public, interest.

A question raised by these amendments is one of principle, to which I would be grateful for the Minister’s reply. The question is this: is statutory underpinning of a royal charter both possible and legitimate? I hope he will confirm that the answer is yes.

There are several precedents for a combination of legislation and charter, notably the Leveson legislation on the print media and the National Citizen Service Bill. Both provide underpinnings for royal charters, although no doubt civil servants will come up with clever arguments as to why they are different. However, I am not raising that question but the question of principle: is there any reason in principle why statutory underpinning is incompatible with the idea of a royal charter?

In his letter to me of 4 January, for which I am grateful, the noble Lord, Lord Ashton of Hyde, claimed that the Government had increased the BBC’s freedom, “to use its money as it sees fit”. I should be grateful for his confirmation that the BBC’s revenue from the licence fee is indeed the BBC’s and not the Government’s money, and for his assurance that there will be no further raid by this Government on the BBC’s revenue. Will he also confirm that without legislation, a future Government would be free to make further raids: in other words, that the most he can do is give an assurance about this Government? The Minister went on to say in his letter that the Government remain of the view that any statutory underpinning to the charter which would expose the BBC to party political pressures would not be in the interests of an independent BBC. There is a whiff of the Brexit debates about that statement. Ministers exercising monarchical prerogative powers claim to be better able to protect the interests of the BBC than Parliament. I agree that the BBC needs to be protected against politicians, whether in or out of office. Ministers are as susceptible to party political pressures as other MPs, and the BBC needs to be protected against both. If the amendments are agreed to, they will give protection and can be abolished or weakened only by a future Act of Parliament. I submit that Parliament’s use of its legislative powers provides better protection than ministerial assurances, which in any case are outlived when the Government change.

I turn now to the specific amendments and hope that the Minister will be able to reply to each of them at the appropriate point. I introduced them in some detail in my speech at Second Reading, so I will not bore the Committee by going through them again. I simply wish to explain to those who are interested what the amendments are designed to. Your Lordships will see that Amendment 217 on the Marshalled List is simply a paving amendment to provide the statutory underpinning that follows. Amendment 218 deals with the independence and funding of the BBC. I am not going to read out the whole amendment—some of it can be found in the royal charter, but in my view all of it ought to be in legislation. If it can be in the royal charter, I am puzzled as to why the Government believe it should not find its way into the Act of Parliament. For example, subsection (2) would insert proposed new section 198ZC, in which new subsection (1) states:

“The BBC is to be independent in all matters concerning the content of its output, the times and manner in which its output is supplied, and the governance and management of its affairs”.


Does the Minister agree with that? I am sure that the answer is yes. Proposed new subsection (2) goes on:

“The Prime Minister, the Secretary of State, the BBC, OFCOM, and all other persons and bodies with responsibility for matters relating to the governance and establishment of the BBC must ensure that the BBC is able to operate independently from Ministers and other public authorities in the United Kingdom”.


Again, does the Minister agree with that? I would expect him to say yes.

Proposed new subsection (3) states:

“In carrying out the duty … the Secretary of State and other Ministers of the Crown must not seek to influence the BBC’s decisions; and … must have regard to the need to defend the BBC’s independence; and the need for the BBC to have the financial and nonfinancial support necessary to enable it to exercise its functions”.

Does the Minister agree? Surely, he does. Then, in carrying out the duty, the Minister,

“must have regard to the need for the public interest to be considered in regard to matters relating to the BBC”.

Again, I see no cause for controversy.

Proposed new subsection (4) states:

“The Secretary of State must make available to the BBC sufficient funds, through the licence fee and otherwise”—


because there are other ways of funding apart from the licence fee—

“to enable the BBC to perform its functions and public purposes as a public service broadcaster”.

I cannot see any conceivable controversy about that notion.

Proposed new subsection (6) states:

“The licence fee is to be for the exclusive benefit of and use by the BBC to fund the performance of the BBC’s functions and public purposes”.


Again, I should have thought that was obvious. Then there is indexation, but I do not need to pause for that.

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[Lord Ashton of Hyde]

I will come to that. Of course, future Governments will have to make their own arrangements in negotiations with the BBC. The BBC licence fee is a tax. Of course, the Chancellor of the Exchequer and the elected Government have a say in how taxes are raised and spent.

[Lord Lester of Herne Hill]

The Minister has twice said that the licence fee is a tax. What is the basis of that? I would have thought that the licence fee is a service charge for a service provided to those who pay the licence. That does not sound like a tax. It is not imposed by the Treasury. It is a service fee. When I watch television, because I am old I no longer have to pay, for some reason—that is another matter—but I cannot understand how it can be regarded as a tax. By calling it a tax, surely the Minister is making a threat about future inroads into the BBC’s revenue.

[Lord Ashton of Hyde]

I certainly do not intend to make threats and I am hardly in a position to do so. I called it a tax because it is so classified by the Office for National Statistics. It is regarded officially as a tax.

The funding agreement announced last July included a number of measures which will increase the BBC’s income—for example, the closure of the iPlayer loophole and the increase of the licence fee with inflation. In combination with the transfer of funding for the over-75s concession, this means that the BBC will have a flat cash settlement to 2021-22, not a 20% cut. Indeed, the director-general said in July last year:

“The government’s decision here to put the cost of the over-75s on us has been more than matched by the deal coming back for the BBC”.


The amendments in the name of the noble Lord, Lord Lester, would endanger the effectiveness with which the BBC can be governed, and weaken the incentives for the corporation to strive for excellence and efficiency, as well as public support for the BBC’s funding.

As noble Lords know, both Houses had many opportunities to shape the future of the BBC throughout the charter review, and the Government appreciate that valuable input. But we remain of the view that the royal charter in its current form has served the BBC extremely well over many decades. The BBC agrees. The BBC’s director-general, Tony Hall—the noble Lord, Lord Hall—has welcomed the new charter, saying that,

“we have the right outcome for the BBC and its role as a creative power for Britain. It lays the foundation for more great programmes and journalism”.

With that, I hope the noble Lord will withdraw his amendment.

[Lord Lester of Herne Hill]

I am grateful to the Minister for his reply. I am not at all surprised and I remain optimistic. What I shall now do is read very carefully all the points he has made, look at the amendments that we have been discussing, strip out anything which can reasonably be objected to in the opinion of the Government and those taking part in the debate, and come back to the matter on Report—

[Lord Ashton of Hyde]

If it is helpful, I am very happy to meet and discuss this.

[Lord Lester of Herne Hill]

What I am hoping will happen is that Lord Hall of Liverpool—the director-general—will meet Ministers himself. He has been quoted in particular ways now and I will not attribute any views to him, because that would jeopardise the independence of the BBC, but I very much hope that he will meet the Secretary of State and explain privately what he thinks about these issues. From my point of view, as a would-be midwife, all I am trying to do is create a framework of principles which do not have any of the detrimental effects that the Minister has pointed to. I will seek to do that, and I hope that it will not be necessary on Report to divide the House. I am optimistic enough to believe that a thinking, open-minded Government in discussion with the BBC could come up with some statutory underpinning that would give a framework of principles without these detrimental effects. On that basis, I shall withdraw this amendment and will not pursue others in the group.

[Lord Birt]

Before the noble Lord sits down, I wonder if I might remind him that it is “Lord Wood of Anfield” and “Lord Birt, of Liverpool”, but “Lord Hall of Birkenhead”. It is very much on the other side of the Mersey.

--- Later in debate ---

[Lord Lester of Herne Hill]

I apologise to the places, their populations and to the noble Lord, Lord Hall, himself. I beg leave to withdraw my amendment.

Amendment 217 withdrawn.

--- Later in debate ---

The adoption by my committee of the Ofcom route—rather than going for a new body—was pragmatic. We thought that the use of an existing regulatory agency, and one with an excellent track record, would be most acceptable. But if the Government were attracted by the proposal in the alternative arrangements, I am sure that the Communications Committee would be delighted. We would of course want the Secretary of State influenced not only by the external independent recommendation but by the outcome of public consultation and parliamentary debate. The process that we wish to replace is of the Secretary of State simply imposing a funding settlement on the BBC without any checks or balances. Having this sword of Damocles hanging over the BBC’s board and management, and the knowledge that in the relatively near future the Secretary of State could exercise unfettered life-or-death authority over the BBC’s funding, would have a chilling effect on the freedom of the BBC to act independently of government. This amendment to bring to bear independent judgment, transparency and a proper consultative process would end a serious deficiency. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I am very grateful to the noble Lord, Lord Best, for his amendment. I agree with the object, but not the means. In fact there are not three but four options open to the Minister. The first, and most pathetically moderate, is of course my original one in Amendment 219, where I borrowed from the way that we deal with judicial salaries and revenue by proposing in new subsections (9) and (10) that “the board”—that is to say, the BBC board—

“must publish a recommendation to the Secretary of State on the amount of funding that the Secretary of State should make available”.

This is on the basis that the BBC should know best what it needs. Then the Secretary of State publishes,

“a response to each recommendation made under subsection (9)”.

If this is rejected, we are in a completely hopeless position so far as this subject is concerned.

My problem with the amendment of the noble Lord, Lord Best, is that it is a bit odd to give the regulator the function of recommending an increase in the licence fee. That is why I have produced Amendment 222A to create an independent body—the licence fee commission. The disadvantage of this is that we do not like creating a whole lot of new bodies unless there is some very important reason. Then the noble Lords, Lord Stevenson of Balmacara and Lord Wood of Anfield, have a more modest way of achieving the same thing: they would have a BBC licence fee commission to do it. Those are, I think, the four options. My own view is that the Government should now accept one of them or come up with a formula of their own that we can agree on Report. I am optimistic that this will happen, so I am now watching this space with great enthusiasm—and suspense.

[Lord Birt]

My Lords, I support the drift of the amendment of the noble Lord, Lord Best; I think that we need a proper, open, rigorous and transparent means of setting the level of the licence fee.

A little bit of history is that we did have a commission in the late 1990s, when the then Government appointed Gavyn Davies, a very distinguished economist and later chairman of the BBC, to do just that. As you would expect, he produced a searching, rigorous report. A further little bit of history is that he made a recommendation, and the Secretary of State, as you expect in politics, lowered the recommendation; as you do not expect, it went to No. 10, and the then Prime Minister not only upped his Secretary of State but recommended a level for the licence fee which was higher than that which Gavyn Davies recommended. It was the famous RPI plus 1.5% for seven years settlement, which allowed the BBC fully to enter the digital age. It was the process that Gavyn Davies led that enabled the Prime Minister to make a considered judgment.

However it is done, that body needs to look at the total environment. The most important issue in British broadcasting today, barely discussed at all, is the long-term decline of UK production. It is not going up; it is going down. It is going down because of the economic position of ITV and Channel 4. Any discussion of the level of the licence fee should look not only at the BBC but at the totality of the broadcasting production environment in the UK.

Some suggest that the licence fee should be linked to the RPI. There can, from time to time, be good reasons for that. I think that, strategically, it should be linked to GDP. The BBC performs a fundamental role in society, like the Armed Forces. We have a view of GDP and the investment we should make in the rest of the world; we should have a view in relation to GDP of how much we invest in our most important public service broadcaster. When GDP is stretched, as it has been over the past 10 years—though, thankfully, it is going up again—and if the country’s economy is suffering a reverse, then the BBC’s revenues should go down. If the country is prospering, so should the BBC—so should society’s investment in its most important public service broadcaster.

--- Later in debate ---

[Lord Ashton of Hyde]

My Lords, I am grateful to the noble Lords who tabled these amendments today, and in particular to the noble Lord, Lord Best, and the Communications Committee, which he chaired. I am also grateful for the contributions of the noble Lord, Lord Birt, and the noble Viscount, Lord Colville, on the future of the licence fee itself and how it may be arranged in the future, which is slightly separate from the debate we are having today about the process for doing it. I accept that, as technology changes, the way it is structured may have to be changed in the future. I hope we can have debates on that separately at some stage in the future. I am also grateful to the noble Lords, Lord Lester and Lord Stevenson, for their amendments.

Today we are debating a new nuance regarding the BBC licence fee. On a number of occasions, Members of the House have been clear that they would like to see an end to what some have called “midnight raids” on the BBC licence fee, and we have listened to that. The BBC’s new charter regularises the BBC’s future financial settlements for the first time, and the next one will be in five years’ time. In the meantime, there will be an inflation-linked increase.

The current charter also requires the BBC to provide data ahead of each licence fee settlement to inform the Government’s decision. It is, therefore, explicitly clear that the BBC will be able to make its case and the Government of the day will be able to consider that. It also follows that anyone with valuable views and thoughts on the subject, including noble Lords—many of whom I know have experience in these matters—can share these views with the Government when the time comes.

The noble Lord, Lord Best, suggests that Ofcom should recommend what the level of funding for the BBC should be, and he proposes further that there should be a public consultation on the appropriate level of funding. It is entirely appropriate that the assessment of the BBC’s funding needs and the subsequent level of the licence fee should remain a matter for the Secretary of State. As I said before, the licence fee is a tax paid by the licence fee payer, and taxation is a matter for the elected Government rather than an unelected regulator. It is right that the Government should have some responsibility for decisions that affect the tax bills of UK citizens, as I have set out before. We would be setting potentially odd incentives for the BBC’s regulator if—as the noble Lord, Lord Lester, pointed out—it would now also be called upon to make funding recommendations. The now-abolished trust model showed that mixing regulatory and strategic functions breeds confusion and conflicting incentives. The consensus has been that this has not worked and we do not want to recreate this model.

Ofcom needs to concentrate on regulating the BBC effectively. The noble Lords, Lord Lester and Lord Stevenson, have both proposed the establishment of an independent licence fee commission to make recommendations to the Secretary of State. We agree with the sentiment of independent advice. The Government stated in their White Paper, published last May, that they would consider taking independent advice at the next settlement should it be appropriate. However, that is a matter for the Government of the day. As with Ofcom, it would not be appropriate for an independent commission to make recommendations on level of taxation.

[Lord Lester of Herne Hill]

As I listen to the noble Lord, the problem arises when he says, “That would be a matter for the Government of the day”. All this is very interesting and relevant, but none of it is binding. Effectively, the Minister is putting forward perfectly reasonable ideas for the future, but none of them has any bite. None of them is binding unless Parliament makes it so. I am afraid it is a question of wriggling to find ways of avoiding any parliamentary underpinning at all. It is that which everyone who has spoken in this House, but one, believes to be wrong. Therefore we will have to come back to it on Report.

[Lord Ashton of Hyde]

I understand the point the noble Lord is making; he illustrated it right at the beginning of his speech in the previous debate. This is a matter of principle: whether we think statutory underpinning is the right mechanism for the royal charter for the BBC. I acknowledged to him that in some cases it might be, but I did not agree that it was appropriate for the BBC. I take his point and his due warning about Report. I agree it is relevant to this, but we have established that we have a disagreement on that point of principle. As for binding future Governments, of course we do not want to do that, and, in fact, we cannot.

The next question is that of public consultation on the settlement or the level of the licence fee. As noble Lords will appreciate, funding a public service is not a straightforward topic for public consultation. For example, the recent charter review found that almost 75% of the public consider the BBC’s programming to be of a high quality, but just 20% said that they would like to see the licence fee rise in line with inflation, thus helping the BBC maintain these high standards. Public consultation, therefore, needs to be approached with due sensitivity.

The BBC’s funding needs are a very complicated and technical issue, as we have seen at every licence fee settlement. The judgment about the overall package is a fine one. It should therefore remain for the elected Government to decide how to approach reaching an appropriate level of BBC funding in a detailed and extensive negotiation with the BBC. As I have said, this resulted in a position that the director-general has said is a strong deal for the BBC that gives it financial stability.

Finally, Amendment 223 seeks to remove the ability of the BBC to set age-related licence fee concessions in the future. I have already explained that the licence fee is a tax and it is right that the Government should retain the ability to determine the outline priorities of what it should be spent on. The BBC explicitly sought responsibility for the age-related licence fee concession. Removing the BBC’s ability to determine this policy—for which it will pay—simply prevents the BBC being the master of its own destiny. I believe it is particularly arbitrary to withdraw the BBC’s ability to set this concession without knowledge of what the overall funding package for the BBC will be at that future point. I do not believe that that is in the BBC’s interest, now or in the future. With those explanations I hope that, for the time being, the noble Lord will feel able to withdraw his amendment.

Press Regulation (Communications Committee Report)

Lord Lester of Herne Hill Excerpts

Tuesday 20th December 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, it is a particular pleasure to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with whose speech I entirely agree. His speech and that of the noble Lord, Lord Lexden, make it much easier for me to follow, and I shall try not to repeat what has already been said.

I want to say, first, to the noble Lord, Lord Best, that I congratulate him not only on his report but on the very fair way in which he summarised the position in his opening statement. It was, if I may say so, as good as any judge could have done in the circumstances. I cannot say the same for some of the contributions I have listened to this evening, as I shall explain, because they have not been fair in the way they have been expressed.

I make two preliminary points. First, if we look beyond this country to the rest of the rest of the genuinely democratic world, we can see that no country has fashioned the kind of system that Parliament passed when it amended two Bills to try to incentivise—that wonderful euphemism—the press into supporting indirect state regulation. When I travel around the world, I find newspapers and free speech groups astonished that the British Parliament, which values free speech as a British value, could ever have done what was done. That is water under the bridge, but it is important that the House understands that what we have done is the subject of deep, hostile criticism beyond our shores.

Secondly, as the noble and learned Lord, Lord Brown, has indicated, we already have plenty of laws that regulate the press. We have criminal and civil laws and, thanks to the European convention and the Human Rights Act, we have a right of privacy to be balanced against free speech. Those journalists who have been guilty of criminal behaviour have been tried, convicted and punished by the courts. Those who are guilty of infringements of privacy have had substantial damages awards against them. Max Mosley, who funds Impress, received £60,000 damages, but he was not content with that and he went to Strasbourg, where he tried to argue that before a newspaper threatens anyone’s privacy it must give notice so that an injunction can be awarded against it—and the Strasbourg court threw that out. Not content with that, he seeks through Impress to accomplish something similar.

I am independent and hold no brief for anybody, but I start with this: IPSO, chaired by Sir Alan Moses, has made great progress in the past two years, and it is completely wrong to suggest, as several noble Lords have done and, as the noble Lord, Lord Lipsey, said, that not much has happened or, as the noble Baroness, Lady Hollins, said, that there has been no proper regulation—that it is a lost two years and the Government have been backtracking. None of those statements is fair or accurate.

I shall not go through everything that has been done in the past two years, but I shall mention a few things. As the noble and learned Lord, Lord Brown, and the noble Lord, Lord Lexden, said, there has been an independent review under the chairmanship of Sir Joseph Pilling, who was Permanent Secretary of the Northern Ireland Office, author of the Church of England’s report on human sexuality, a former director-general of the Prison Service and a totally independent reviewer. In his 69 pages, which I doubt many noble Lords will necessarily have read, he looked carefully at IPSO and came to some extremely important conclusions as an independent valuer. That is something that has happened in the last two years—but there has been a great deal more than that.

I asked an official at IPSO to indicate some of the things that have happened. First, a budget has been agreed until 2020—that is something the PCC never had. Secondly, the byzantine rules and regulations inherited by Sir Alan Moses have been cut through by him—something it was said could never happen. Thirdly, there is now a fully functioning and fully staffed complaints system, and a standards function. Two sets of annual statements have been published from all-member publishers, which the PCC never did. A readers’ panel has been set up, with six members of the public, including Tom Rowland, a core participant in the Leveson inquiry. There is a journalists’ panel, which will have its inaugural meeting early in the new year, and, as I say, there has been a very important independent review under Sir Joseph Pilling.

During the past two years, IPSO has handled more than 20,000 complaints and inquiries. It has begun a pilot arbitration scheme, appointed an independent complaints reviewer, Trish Haines, and ordered 13 front- page references. That never happened with the PCC. It has a whistleblowing hotline and, very importantly, has issued private advisory notices. These are not made public but are an important way of disciplining the newspapers.

In his report, Sir Joseph Pilling introduced his recommendations by saying that,

“it is clear that already there are some important achievements. These achievements and the commitment from all of those involved for IPSO to be a success can be built on. These recommendations are not an attempt to save a failing organisation, rather they are intended to help a new regulator, which demonstrates early achievement, promise and commitment, to develop into a trusted, experienced regulator”.

That is an independent evaluation which should carry great weight not only with the Government but with the public and Parliament.

I want to say very little about Section 40 because I wrote about it last Friday in the Times. However, I should like to add to what the noble and learned Lord, Lord Brown, said about Section 40 by saying that in my view, not as a politician but as a lawyer, if Section 40 came before an independent court, I believe that the court would decide—say, by way of judicial review—that it is not compatible with freedom of expression or fairness. It is arbitrary, discriminatory and unfair. It states that even if a newspaper were to win a legal process, it would be liable to pay the costs of the loser as well as its own unless a judge in unspecified circumstances ruled otherwise. That is so obviously unfair that you do not have to be a very clever lawyer or judge to see that it cannot pass muster.

The Government are in a very difficult position. They are not backtracking. The Government have inherited Section 40 and there is pressure from the Hacked Off brigade and others to bring it into force. A Minister—I do not know who it was—must have certified under the Government who introduced Section 40 that in his or her opinion it was compatible with the European convention. In my view, the Minister was wrong: it is not compatible. However, it seems to me the only way that can be established is by the Minister deciding at the end of the review not to bring Section 40 into force, and then for the Hacked Off side to bring a judicial review. At that stage, a court of competent jurisdiction could rule on the matter. If I am right, at that stage, the Government will then be able to comply with the judgment of the court by using subordinate legislation to get rid of the offensive provision. Otherwise, I can quite see that the Government’s difficulty is that if they simply introduced a primary Bill to get rid of Section 40, in the present mood of both Houses it probably would not get through. I think the only way the Government can get it through is on the back of a judicial ruling.

Therefore, I have great sympathy with the Government’s position. This situation is not their fault. I have to say of the former Prime Minister David Cameron that from the very beginning he had grave reservations about what the other parties were doing in fashioning Section 40 and the exemplary damages provision.

Therefore, for all those reasons, I am glad that the consultation is proceeding and that we will know the outcome in January. I hope that the Minister will do nothing at all.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I echo the comments of others about being very grateful to the noble Lord, Lord Best, for introducing his report this evening so eloquently, and indeed to all noble Lords for the hard work that went into producing the report in the first place. I feel that the delay in timetabling this debate was unacceptable. It makes a mockery of our brilliant Select Committee system and the valuable work that they do. Nevertheless, the report still has relevance today. Although it did not go into detail—that was not its role—it reminded us of the widespread phone hacking and police connivance that created a national outcry about the impact that the press were having on their victims and led to demands for reform. In March 2015, the report posed the question: where are we now? Although, as we have heard from the noble Lord, Lord Best, there have been developments, sadly we remain blinkered by confusion and uncertainty.

It is worth revisiting the crucial cross-party agreement that led to the concept of a royal charter, which was there to safeguard the press from any fears of political interference and to establish the validation mechanism for a new, independent, self-regulated press complaints system. We should not lose sight of the importance of that all-party agreement if we are to make further progress in future. I stress that point because some noble Lords this evening have called for a new settlement or compromise. However, we should not lose sight of how difficult it was to reach that agreement around the royal charter all that time ago.

Under the terms of the royal charter, the Press Recognition Panel was established to determine which, if any, regulators met the criteria to be assigned the status of an independent self-regulator for the press. This was a core recommendation from the Leveson report. It was intended to replace the failed Press Complaints Commission and many previous versions of that discredited body. At the time of the Lords report, IPSO had been established as a successor to the PCC but had made it clear that it had no intention of seeking recognition under the royal charter. It continues with that position today and blatantly fails to meet many of the crucial elements that Leveson regarded as essential.

At the time of the Lords report, Impress had just been established with the intention of meeting the royal charter criteria. As we have heard, since that time Impress has applied to the Press Recognition Panel and has been approved as Leveson compliant. The Impress model of regulation includes crucial protections for readers, such as equal prominence for corrections and apologies and low-cost access to arbitration. These are not unimportant points. So I would like to ask the Minister this: how long are the Government intending to tolerate the majority of the press refusing to participate in an approved press regulation scheme, when there is now a scheme available that meets the criteria that were widely endorsed at the time of the Leveson inquiry?

Secondly, I will address the issue of Section 40 of the Crime and Courts Act, which implements a key section of the Leveson report. I have to say that Leveson himself is a very senior judge and was assisted by senior lawyers in the drawing up of that recommendation. At the time that the Lords report was published there was no reason to think that Section 40 would not be implemented in line with the original timetable. It is, after all, an integral part of the agreed Leveson model. It underpins the structure set up by the royal charter and it forms a key part of the rights and responsibilities that go with it. As we have heard, under the terms of Section 40 citizens who bring cases against newspapers that have not joined an approved regulator are protected from paying court costs. Equally, newspapers that have opted into the approved regulator offering low-cost arbitration are protected from paying the other side’s costs if taken to court. Those are the sticks and carrots that we have been talking about today.

It was inexplicable that John Whittingdale, then the Culture Secretary, announced in October 2015 that he was postponing the implementation of Section 40 —although, as we heard today, he had coincidentally met Paul Dacre two weeks earlier. This has now been followed by the announcement by the new Culture Secretary, Karen Bradley, that a consultation would be held on the future of Section 40. What possible reason could there be for a delay, apart from the unseemly lobbying from the powerful press barons who are determined to thwart the delivery of the Leveson agreement?

One reason for the current consultation that has now been announced is that local papers have raised concerns about the impact of Section 40 on their viability. Of course we want the local press to survive and thrive, but we need to bear in mind that the vast majority of local papers are owned by huge media corporations, which have a shared antagonism towards Leveson. What is more, if they signed up with an approved regulator, their concerns would be answered.

There are further concerns, not least that the thrust of the questions in the current consultation invites responses which are critical of the proposals. I ask the Minister whether the Government still stand by the cross-party agreement that led to the establishment of the royal charter. Does he accept that any failure to implement Section 40 would fundamentally undermine that agreement?

[Lord Lester of Herne Hill]

My Lords, could the noble Baroness, on behalf of the Official Opposition, deal with the point that I have made—and that the noble Lord, Lord Pannick, has made in the past—that we, as independent lawyers, take the view that Section 40 is contrary to the European Human Rights Convention and the Human Rights Act because it is arbitrary, discriminatory, unfair and contrary to press freedom?

[Baroness Jones of Whitchurch]

My Lords, I thought I had addressed that point. I know that this is an area where there has been some legal disagreement and my point was that Lord Justice Leveson was himself a senior lawyer. This is about implementing his recommendations. Clearly there are different legal views on this matter but it is certainly not a one-sided issue.

As to the outstanding second part of the Leveson inquiry, at the time of the first report in 2012 Lord Leveson reported that he was unable to investigate some aspects of the role of the press and the police as legal cases were ongoing. However, the last case was settled last month so there is now no reason why Leveson part 2, under a new chairman, should not go ahead, as was originally promised by the Prime Minister and others. A range of serious concerns about the role of the police remains. Indeed, over this period a number of police officers have gone to jail for taking bribes, while others plainly failed in their duty to investigate the illegal activities of the press and dismissed the known corruption as the actions of one rogue reporter when it turned out to be an endemic problem.

There are other outstanding concerns about the failure of corporate governance of these huge media corporations during the hacking scandals. These remain relevant given that Sky and 21st Century Fox have agreed the terms of a deal that once again raises questions about whether James and Rupert Murdoch are fit and proper persons to run a media company that owns a regulated TV service. There are also justifiable concerns about the concentration of ownership and whether the merger will threaten our commitment to media plurality.

Does the Minister accept that crucial inquiry work, which Leveson recognised as an essential next step, remains outstanding? Can he be sure that there is no case to answer from the police and others when no inquiry has taken place? Does he also agree that the proposed Murdoch takeover should be postponed until such an inquiry has been completed?

It would be a mistake to believe that the press have somehow cleaned up their act, as some noble Lords who have spoken in the debate would have us believe. As we have heard, they are continuing to make false allegations against individuals, breach victim confidentiality and print false and misleading stories without redress. Over the past year they have fuelled new levels of racism and Islamophobia and have created a wave of hate crimes against innocent civilians. Sadly, the truth is that without the full implementation of Leveson there will be nothing to stop the press from behaving badly in the future, potentially making victims of ordinary people and ruining their lives.

If this was not bad enough, the latest trends on the industrial-scale distribution of fake news and the throwaway assumption that we now live in a post-truth age—although I agree absolutely with the noble Baroness, Lady Hollins, that we should say that it is indeed an age of lies—only goes to underline the importance of having media in the UK that we can trust to tell the truth. If the phone tapping saga teaches us one thing, it is that the failure to tackle the criminal behaviour practised by our press is a mistake. Failure to investigate the wrongdoing of the past is simply storing up trouble for the future, and allowing the press to cock a snook at Parliament is going to risk our democracy being undermined. So I hope that the Minister will be able to reassure us that not only does he understand the continuing clamour for reform that is made so evident in this excellent report but that he accepts that his Government have a duty to complete the work recommended in Leveson part 1 and a further duty to implement Leveson part 2 now that the way is clear. The British people will not forget the way the victims of the press have been treated and they deserve better.

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

My Lords, I thank the noble Lord, Lord Best, for securing this important debate following the publication of the Communications Committee’s report in March last year. I note the lapse of time before this debate could be held but nevertheless it is important that it has taken place. The matter of press self-regulation remains a fiercely debated matter, and it is pertinent timing for us to have an opportunity today to discuss these issues.

A free press is an essential component of a fully functioning democracy and it is vital that the self-regulatory system allows the press to operate independently and carry out its crucial function. My noble friend Lord Lexden observed that we have a diverse, irreverent, bold press which is woven into our freedoms and liberty, and that is so important. It is a point that was echoed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble Lord, Lord Lester of Herne Hill. Moreover, as the noble Baroness, Lady Jones, concluded her remarks, she spoke of the need for a media that will tell the truth. However, that poses the question: whose truth? That becomes a real issue if government regulation goes too far, so it is important to look at this in context.

Since the Leveson report was published four years ago we have seen significant changes to the press self-regulation landscape. Indeed, even since the report of the Communications Committee was published there have been notable changes, as noted by the noble Lord, Lord Best, in his opening observations. In March 2015, as the report sets out, IPSO had only recently been established with around 70 members while Impress was still in development. The Press Recognition Panel was recently set up and it will be almost a year until the self-regulator applies for recognition under the new framework envisaged by Sir Brian Leveson. Today we are in a wholly different place. Impress was granted recognition by the Press Recognition Panel in October, making it the first and only recognised self-regulator under the new system. The Press Recognition Panel spent many months assessing the application from Impress against 29 criteria set out in the royal charter. This included three public calls for evidence and the panel published its report regarding its decision on 21 November.

Meanwhile, IPSO has also developed since its creation in 2014. It is trialling a pilot arbitration scheme that has already been referred to which is likely to conclude next summer, and a consultation on the editors’ code of practice was recently launched by the code committee. It also, as the noble Lord, Lord Lester, observed, commissioned Sir Joseph Pilling to carry out a review of its independence and effectiveness which reported in October, and indeed this was also referred to by the noble Lord, Lord Lipsey. I take issue with the suggestion from the noble Lord, Lord Strasburger, that there was any element of a sham about that process. With respect, that appears to be a misplaced suggestion.

We of course accept that IPSO has publicly stated that it will not seek recognition from the Press Recognition Panel. The background to that lies in some of the observations made by the noble Lord, Lord Lester, about whether this would be perceived to be a government-controlled form of regulation.

I turn to the system of incentives developed to encourage publishers to join a recognised self-regulator. There were, of course, the exemplary damages provisions, which came into force in November 2015, and, as the House knows, Section 40 of the Crime and Courts Act 2013 made provision for cost clauses, which have not been commenced. Unlike the exemplary damages provisions, the costs provisions clauses in the Crime and Courts Act 2013 did not have a specific commencement date.

Section 40 has been discussed extensively in this House at various times. It was designed to incentivise newspapers to join a recognised self-regulator. It contains two presumptions, with which we are familiar. First, if a publisher that is a member of a recognised self-regulator loses a relevant media case in court, it does not have to pay the winning side’s costs. Secondly, if a publisher that is not a member of a recognised self-regulator wins such a case in court, it would have to pay the losing side’s costs as well as its own.

As we have heard, Members of this House argue that commencement of Section 40 will bring substantial benefits for ordinary citizens by providing improved access to justice for victims of press abuse, as well as providing protections for journalists against the threat of high-cost libel claims. However, we have also heard from others, such as my noble friend Lord Lexden, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Lord, Lord Lester, and the noble Baroness, Lady D’Souza, that commencement of Section 40 could have a chilling effect on the press, particularly local titles, which may be threatened with legal action by those wishing to suppress stories that are in the public interest. They may consider it safer not to publish those stories.

It is interesting that in the course of this debate a number of your Lordships used terms such as “stalemate”, “uncertainty”, the “need for compromise”, and, “Is there a better way?”—a comment made by the noble Lord, Lord Lipsey. Indeed, the noble Baroness, Lady Hollins, posed the question of why there is failure to produce a resolution at this stage. It is because of the continuing debate and the increasing recognition that there must be a middle way and room for compromise, as observed earlier.

It is because of these strong views on both sides of the debate that the Government decided to launch a consultation in November to inform next steps in this area. As the Secretary of State for Culture, Media and Sport set out in her Oral Statement regarding the consultation, and again while giving evidence to the Communications Committee last week, this is an appropriate time to consider this incentive given the recent changes that have taken place in the press self-regulation landscape—changes that have been monitored by someone as independent as Sir Joseph Pilling.

The consultation presents five options regarding Section 40, ranging from full commencement through to full repeal. The consultation also asks for evidence regarding the impacts of these options on both the press industry and claimants. The Government are keen to hear views and evidence regarding the extent full commencement would have on incentivising publishers to join a recognised self-regulator. We do not shy away from that. We seek informed opinions from all sides in this difficult and demanding debate.

The noble Lord, Lord Lester, raised concerns around Section 40, its compatibility with Article 10 of the European Convention on Human Rights and the issue of freedom of expression. The Government remain confident that Section 40 is consistent with human rights legislation. However, we encourage those who have a contrary view to contribute to the consultation and to the debate in order that this matter may be bottomed out. I will make one observation. When the Minister certified the Bill for its introduction, there was of course no Clause 40—he might be forgiven for that at least. However, Clause 40, which was the product of an inter-party agreement, was moved as a government amendment. We continue to be of the view that it is convention-compliant.

Leveson 2 has been raised. Part 2 of the Leveson inquiry will be the subject of the consultation that is going forward. The consultation asked respondents whether the inquiry should continue either with the original or amended terms of reference, or indeed be terminated. It also asked for views and evidence regarding which terms of reference have already been covered by part 1 of the Leveson inquiry and by the criminal investigations—which, as the noble Baroness, Lady Jones, said, have already been concluded. Therefore, that matter remains open for the purposes of the consultation.

[Lord Lester of Herne Hill]

Could the Minister write to those who have taken part in the debate without disclosing legal advice but nevertheless explaining how the Government can say that Section 40 complies with free speech and the convention?

[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.

Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Lord Lester of Herne Hill Excerpts

Wednesday 20th July 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I first commiserate with the noble and learned Lord, Lord Keen of Elie, in having to lie upon another bed of nails. Through him, I also congratulate the right honourable Liz Truss MP on her appointment as Lord Chancellor, a great office of state whose origins may be traced to Anglo-Saxon times. In her study of the office, Diana Woodhouse observed that there were no qualifications for Lord Chancellor—that any man or woman could be Lord Chancellor, although in modern times it was always a senior and distinguished lawyer. As your Lordships know, that changed in 2005 when Parliament enacted the Constitutional Reform Act. Section 2 says that a person may not be appointed as Lord Chancellor unless he or she,

“appears to the Prime Minister to be qualified by experience”.

Being a lawyer is not a requirement, although a non-lawyer needs to have the rule of law in his or her political DNA. That was made clear in the 2005 Act’s reference to the Lord Chancellor’s continuing constitutional role in relation to the rule of law.

The noble Lord, Lord Faulks, and the noble and learned Lord, Lord Falconer, among others, have criticised the new Lord Chancellor for lacking the necessary experience to uphold the rule of law; indeed it seems that the noble Lord resigned for that reason. But the new Lord Chancellor should in fairness be given time to be judged by her actions in office. She cannot be criticised for the Motion and the amendment tabled by the noble Lord, Lord Beecham, which I strongly support. The mischief of which he rightly complains derives from previous Lord Chancellors—Chris Grayling and Michael Gove. It is part of the continuing assault by successive Governments on access to justice.

Law care is as important to our well-being as healthcare, but it is no longer within the reach of most people. Law centres report people collapsing from lack of food because they are unable to contest benefits sanctions. Parents are unable to challenge their children being taken into care or put up for adoption. Unscrupulous employers sack workers knowing that they cannot afford tribunal fees.

The cost of going to courts and tribunals is exorbitant because of swingeing user fees—rightly described by previous speakers as a tax on justice—even in cases involving alleged race and sex discrimination or claims for asylum by victims of political persecution. For claims involving unfair dismissal discrimination, whistleblowing or equal pay, claimants must foot a bill of £1,200 on top of their legal fees. Asylum fees for a full First-tier Tribunal hearing are £140 and it is proposed to increase them by 472% to £800.

These are exorbitant taxes on justice. As the noble Lord, Lord Beecham, said, it is a matter for regret that under the coalition Government the Treasury sought, for the first time ever, to make a profit from people seeking to enforce their legal rights, granting the Lord Chancellor the power to prescribe fees above cost. The noble and learned Lord, Lord Keen, described that tax on justice as necessary to secure access to justice. I hope that he will not mind my saying that that is an example of irrationality in the Wednesbury sense—a defiance of accepted moral standards, among other things. When the proposals were announced, the noble and learned Lord the Lord Chief Justice of England and Wales warned that the Government had made “very sweeping” and “unduly complacent assumptions” about their likely effect on access to justice. Successive Governments have treated legal aid as the Cinderella of the welfare state, an easy target of Treasury raids. Access to justice is seen as a luxury rather than a necessity underpinning our way of life, yet it is central to the rule of law.

Without going into too many figures, I would like to add some to what has been said already. The order introduces 10% fee uplifts across civil and magistrates’ courts. A contested hearing has increased from £515 in 2014 to £567 in the magistrates’ court, from £280 to £308 in the county court, and from £480 to £528 in the High Court. Those are increases well above inflation, and are cumulative. The request to reconsider at a hearing a decision on judicial review permission in civil proceedings cost £180 in 2008 in comparison to £770 today.

Fees act as a deterrent to bringing a claim to court. They dissuade people with legitimate grievances from coming to court. As your Lordships have heard, last month the House of Commons Justice Committee reported how fees in employment tribunal cases had led to a “startling drop” of cases brought, by 67%. That includes a decline in claims for breaches of the working time directive, unauthorised deductions from wages, unfair dismissal, equal pay, sex discrimination—the list goes on.

Fees prevent or deter people from articulating and enforcing their rights to a minimum standard of treatment in the workplace. As the Minister may well know, employment tribunal fees are being abolished in Scotland. I wish the same would happen in England and Wales. The risk of losing their case or getting a partial costs order is one that many vulnerable and low-income claimants cannot take, no matter how egregious the wrong they have to suffer. Some claimants have to choose between stumping up the fee and paying for a lawyer. Many end up without legal assistance. Others will get payday loans to assist with their claims, and then are saddled with debt and have to pay interest to exercise their right to justice. The upshot of all that is that the justice system is too expensive for traders, small businesses and the victims of personal injuries and of unscrupulous employers. There is a risk that parties with deeper pockets will deny liability on the basis that claimants are unable to fund court fees.

I am also concerned by the increase in fees to judicial review applications in civil proceedings. The fee for permission to proceed with a judicial review will increase from £700 to £770. The Government already have sufficient safeguards against abuse of judicial review proceedings. As has also been said, the fee uplifts in immigration and asylum cases are particularly worrying. The Law Society warns that higher fees for immigration and asylum cases may encourage individuals who cannot afford fees to risk criminal prosecution and illegal overstay.

The Government are introducing fee increases before the publication of the impact review on employment tribunal fees and before responding to the Justice Select Committee’s report on the impact of fee increases, despite 93% of respondents to the Ministry of Justice’s enhanced court fees consultation having disagreed with the proposal to uplift all civil fees by 10%. It is also questionable whether the increased fees will create £6 million in additional income, as the Government claim. Since fees were first introduced in 2014, judicial review applications have fallen from 15,600 in 2013 to 4,680 in 2015. I have already mentioned the 67% drop in employment tribunal applications. The 10% increase in fees will discourage more litigants.

Justice is a necessity, not a commodity. We should, as the amendment of the noble Lord, Lord Beecham, states, and his powerful speech underlined, certainly express our regret. The Government have ignored the wise counsel of the Commons Justice Committee that access to justice should prevail over generating revenue. Instead, they continue to increase the already enhanced fees and have set them above cost. That is deplorable.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I start by returning to the matter of Ms Truss being made Lord Chancellor. I share the view of lawyers in this House that it is regrettable that Lord Chancellors are no longer people with substantial legal experience. I regret that it was a Labour Government who changed that practice and the way it was done. However, I object to people feeling that Ms Truss is somehow short of the substance necessary for the role. I was very disappointed to hear the noble and learned Lord, Lord Brown, suggesting that she was not overburdened with experience in court matters. Were the men of law as vociferous when Mr Grayling or Mr Gove took up their appointments and did they make the same complaints when it was a man in that role? We should look at whether we are seeing something inappropriate about a woman taking this role. I regret that we have heard a clamour of male lawyers and judges saying that this is not a suitable appointment when they made no such complaints when men were put into that role. I welcome the appointment of Ms Truss, given the current rules.

I turn to the Government’s Motion. It is an assault on access to justice that they are seeking to do this yet again. Only last year, the Justice Committee examined the issue of tribunal fees and made it very clear to Parliament that the level of fees charged for bringing cases should be substantially reduced and that no fee should be charged if the amount claimed was below a certain level. It was particularly concerned about cases dealing with unpaid wages or people not getting their holiday pay, so the sums of money were not great but an injustice was taking place and employers were behaving badly. Of course, there are thresholds for fee remission, but the bar is too low; the committee made it very clear that too few people could claim fee remission.

The committee expressed special concern about how that impacted on women bringing cases. That is what I want to emphasise today. Women are having particular problems with this provision. Women alleging maternity or pregnancy discrimination, where some excuse is found for easing them out of their jobs, not letting them return after they have had children, want to bring a case, but the time limit is too tight and they are considerably put off by the cost to them, often at a time when money is sparse because they are at home with a newborn.

--- Later in debate ---

The noble Lord, Lord Lester, referred to the suggestion that there had been a dramatic fall in the number of applications for judicial review as a consequence of the introduction of fees. I would suggest that there is more to that than meets the eye. In fact, the reason there was a sharp reduction in applications lodged in the civil courts in respect of judicial review is reflected in the policy change which moved the responsibility for assessing applications for the vast majority of immigration and asylum judicial reviews from the civil courts to the Upper Tribunal chamber dealing with immigration and asylum. It is interesting and, indeed, noteworthy that the figures indicate that, between 2013 and 2014, the number of applications in the civil courts dropped from about 9,377 to 1,783, while at the same time they increased in the Upper Tribunal from 7,841 to 15,179, but I add this caveat: the latter figures are based on the financial year whereas the former figures are based on the calendar year. However, there is a fairly obvious correlation to the extent of a 7,000 decrease and a 7,000 increase in the number of applications.

[Lord Lester of Herne Hill]

The noble and learned Lord said a little earlier that the question is whether the taxpayer or those who use the system should pay. Does he not understand that the problem is not those who use the system but those who cannot afford to use the system? Is he not in difficulty in making the kinds of points he has made when he says that the Government have not published the review of the system and will do so only in what he calls “due course”?

[Lord Keen of Elie]

I do not believe that that difficulty arises. I emphasise the point that I made earlier: if you look, for example, at the fees in respect of the employment tribunal, the gross figure is £12 million-plus; the sum remitted for those who could not afford the fees is £3.9 million. In other words, something of the order of 30% of employment tribunal fees came under the remittance scheme. It is working. It is effective. It is allowing access to those tribunals for those people who could not otherwise afford it.

I turn to the points made by the noble Lord, Lord Pannick, and the three questions which he posed in the context of the Justice Committee’s June report. We welcome the report from the Justice Committee. We will consider it in detail. We will consider its conclusions. We will respond to it as it requested, and we anticipate responding by September this year in accordance with the Justice Committee’s wishes. It would not be appropriate for me to anticipate that response at this time.

As the noble Lord, Lord Pannick, observed, there are instances in which some of our greatest advocates will take on the most hopeless of cases, and I applaud the noble Lord, Lord Pannick, for stepping forward to take into court the issue of Article 50 and its exercise in the context of our exit from the European Union. I look forward with interest to the outcome of his efforts in such hopeless endeavours.

Scotland Bill

Lord Lester of Herne Hill Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Keen of Elie]

Given the noble Lord’s invitation to ignore it, it is more than a novelty; it is rather generous. Be that as it may, I come back for a moment to the question of justiciability. The noble and learned Lord, Lord McCluskey, and others of your Lordships have sought to ensure that the provisions of Clause 2 will not create a justiciable right. I understand and appreciate the reasoning behind that amendment, but our position remains that it is not necessary because Clause 2 cannot and does not create a justiciable right. I emphasise that it is not a question of whether the word “normally” is justiciable, as every word of a statute is in that sense capable of being interpreted by a court. It is the issue that is not justiciable. I return to a point that I mentioned briefly—

[Lord Lester of Herne Hill (LD)]

I had not intended to interrupt until I heard the noble and learned Lord just now. Since the doctrine of parliamentary sovereignty is simply a rule of recognition by the Queen’s courts that Parliament should be sovereign, is it not also a matter for the Queen’s courts and not for Ministers or government, or even Parliament, as to what is or is not justiciable?