Cairncross Review

Debate between Lord McNally and Lord Keen of Elie

Tuesday 12th February 2019 Lords Chamber

[Lord McNally (LD)]

My Lords, the noble Lord, Lord Griffiths, paints a romantic and nostalgic picture of the local press, and he is right to do so. But, in trying to solve the problems that face us in somehow helping the Burry Port Star, we must beware. The press owners have come with a begging bowl. They earlier proclaimed their resistance to any government interference, but quite ready to dip their hands into the public purse are very large and rich companies, many of which have delivered redundancy after redundancy to local papers in favour of their shareholders.

That is one of the reasons why local journalism is in the state that it is in. I also suggest that the National Union of Journalists might be added to the list of people to consult that the Minister read out. There is a serious challenge to local media. Dame Frances set it out very bleakly in her report and the Minister repeated it. There is massive technological change and that impacts on how news is received and—particularly with the under-25s—how it is digested.

I welcome some of the actions announced by the Minister to refer some of the recommendations to relevant bodies. However, the ambitions of the Government and newspaper proprietors would be more credible if they had not been so eager to bury the Leveson report and ignore its call for the establishment of a regulator set up by royal charter which could do many of the tasks called for in this report.

As I said, freedom from Government does not seem to stop the press barons from dipping into the public purse. Therefore, although I welcome the recommendations on digital and media literacy, online advertising and news quality obligations, we should be hard-nosed about how and where tax relief and innovation fund money is spent. It is not there simply to line the pockets of Newsquest, JPI Media and Reach, which are all big, profitable companies that have taken the lion’s share of the existing Local Democracy Reporting Service, which costs the BBC £8 million.

Some of the powers advocated in this report could be taken on by the Press Recognition Panel, the independent body established by Parliament under royal charter. The recommendations on how to bring the FANGs within the rule of law go wider than the issues covered by this report but its recommendations on new codes of conduct for online platforms are to be welcomed.

But what do we find in the report? As usual, it is a quick dive to try to weaken the BBC. In almost 40 years of being involved in this I have explained to various media proprietors that 90 years ago a Conservative Government had the common sense to nationalise the BBC as a public service broadcaster with a mandate that consciously distorted the market in favour of public service broadcasting. They want to have a go at the BBC online because it carries the same credibility and weight as the broadcast BBC. I hope that although the Minister has asked Ofcom to look at this, Ofcom will be very sceptical about trying to weaken one of the strongest public service journalism outlets in this country, one which should be defended.

I hope also that the Minster will use his good influence to secure a full day’s debate in this House. This is an important report; so is the one published today by the Press Recognition Panel. This is an ongoing debate and the knowledge that exists in this House would be of benefit in taking a very wide agenda forward.

[Lord Keen of Elie]

I thank the noble Lords. I entirely concur with the observations of the noble Lord, Lord Griffiths of Burry Port, and the emphasis that he laid on local journalism and its impact on and importance to local democracy and indeed to wider societal issues that arise at a local level. To that extent, I believe that we are all pleased with the steps taken by the BBC with regard to the Local Democracy Reporting Service, which has been effective. The conundrum now is how to redress the balance. I believe that a starting point is for the CMA, which has experience and expertise in this area, to look at how the market is working. That will not be a solution in itself but it will give us a starting point from which we can work. As regards a regulator, that is a medium-term or longer-term ambition. Again, we will have to look at how we can develop that, but we are conscious of its importance.

The noble Lord, Lord McNally, made the perfectly valid point that many of our printed press corporations remain profitable. The difficulty is the disparity between the profitability in some areas and the poverty in others, as illustrated recently by the demise of one of the largest publishers of local newspapers in the country. In so far as the press industry seeks to, as the noble Lord put it, put its fingers into the tax pot, it is fair to say that he can anticipate that the Treasury will be pretty hard-nosed about that. We will seek to ensure that any benefits that can be provided go to the right place for the development of public-interest journalism.

I do not see this as an attempt to weaken the BBC, although there might be issues there that we will look at. I appreciate the importance of the BBC as a source of reliable journalism, but perhaps there are areas where it goes where it would not have gone before. I am not sure that it is necessarily in the public interest to have “Love Island” news online—although I may be corrected by some. It seems to me that these are areas where, for example, more commercial enterprises might be allowed into the market. I will just raise that as an issue.

I welcome the comments that have been made. We will want to review matters. The noble Lord raised the question of a debate. Of course, we have the forthcoming White Paper as well, and it may be that, in the light of that, a wider debate will be appropriate.

Central Courts IT System

Debate between Lord McNally and Lord Keen of Elie

Wednesday 23rd January 2019 Lords Chamber

[Lord Keen of Elie]

With respect to the noble and learned Lord, it is important to distinguish between two entirely separate systems: the existing system, which suffered the corruption of the routing server, and the proposed new common platform system which is in its testing phase. That is entirely unrelated to the existing system, but is of course connected to the modernisation of the courts system and the case management system, which has been allocated considerable funding at the present time.

With regard to the existing contracts, we are engaging with the provider over this issue. We regret the outage that occurred. Back-up systems did operate. Certainly, I am not aware of thousands of criminal cases being disrupted. I am advised that there is no evidence of cases being adjourned due to the IT issue.

[Lord McNally (LD)]

My Lords, it a fairly easy strike to suggest, as the Labour Front Bench did, that this was all the fault of Chris Grayling. I was also the Minister of State in the Ministry of Justice when we set out to reform court IT. Throughout my political life we have had, periodically, Ministers coming to explain some disaster in an IT system. What I wonder is: what happens next? As he rightly said, the comprehensive view of reform is not affected by this particular malfunction, but I do remember visiting courts and asking, “Have you got any problems with your IT system?” and they would say, “Well, our fax system doesn’t work”. This was long after the rest of the world had sent their fax systems to museums. The original idea is still valid: to invest in technology to make our court systems efficient. Where does the buck stop? I understood that the Cabinet Office also has responsibility for oversight of the efficiency of bringing in these new systems. Who is overseeing this? Who is keeping their eye on it? Or will we wait for another few years, and somebody coming along to explain why that system has not worked.

[Lord Keen of Elie]

I am obliged to the noble Lord for his observations, drawing upon his own experiences in the ministry when we began the introduction of the common platform system. Clearly, we want to move on to that platform fully and as soon as possible. We have already seen some success in the digital approach that has been taken to some forms of casework—such as debt actions and undefended divorce actions—and we want to roll that out further. With regard to the existing system: it is not perfect. If it was perfect, we would not be seeking to replace it. There are back-ups, but they are of limited operability because of the availability of wi-fi in courts in circumstances where it has not been possible for those working there to access their desktop computers. That has been the case in some courts recently, and in the ministry itself, because of this particular problem.

At the end of the day, the Ministry of Justice must consider the effectiveness and efficiency of the computer system that it relies upon, not only as a ministry but also for its attendant agencies and arm’s-length bodies. We accept that we have a responsibility in that matter.

Proposed Media Mergers

Debate between Lord McNally and Lord Keen of Elie

Tuesday 5th June 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, I thank the Minister for repeating the Statement. For someone who is not always clear on these great battles, where does this put the Comcast bid and the Fox-Disney bid? Are they now parallel bids and will Sky shareholders now decide which is the best deal? I read somewhere that Sky has advised its shareholders that it no longer stands by an earlier recommendation to accept the Fox bid. Once the procedure has been gone through, will it be a straight fight on price for Sky or are there other considerations?

I associate myself with what the noble Lord, Lord Stevenson, has just said: this keeps on happening. No other country in the world would allow important parts of its media industry to be fought over by foreign interests in such a way. We have here a battle between three massive American media conglomerates over a key part of our media industry. Moreover, as the noble Lord has just said, all this is being done in the long shadow of even bigger technology companies that may be coming in. We need a framework of defences for this key sector. As we said when we considered these issues 20 years ago, we are not talking about tins of beans. When these companies pass on to different control, we are talking about an essential part of a functioning democracy. There is a case for looking at the powers of Ofcom and the CMA and the Government’s responsibilities in this media area, which are badly in need of an overhaul.

The only other thing I have to say is that it is important that we get the decision right. I am always worried when the Secretary of State gives himself timetables of 15 days, or whatever. The important thing is making sure that we get it right. I also underline the importance of Parliament being kept fully informed and consulted on decisions that are taken.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their observations on the Statement. Clearly, the terms of any divestment, which will be a requirement of the Fox bid, must be sufficient to ensure the remedy’s effectiveness over the long term. That is why reference is made in the report to a period of 10 years.

The Secretary of State has already instructed officials to begin immediate discussions with Fox and its representatives on the detail of the proposals so that work can be done to take us towards an agreement—we hope—on the final form of any undertakings. Once that is in place and the undertakings are in a form that he is prepared to accept, the Secretary of State will be required to consult on them. He must allow a minimum of 15 calendar days for responses. Of course, Parliament will be kept informed of the consequences of that process.

Regarding the points raised about other platforms and their dominance—reference was made to Google, for example—we committed to reviewing the media public interest considerations during the passage of the then Digital Economy Bill. That can now be taken forward, as is our intention.

As far as Ofcom’s powers are concerned, it is important to maintain and understand the distinction between the role of Ofcom in the phase 1 stage of an inquiry and the role of the CMA in the more intensive phase 2 stage, where the CMA has greater powers than Ofcom. However, Ofcom has indicated that it is satisfied that it has the powers it needs to conduct the form of review required under the Act in respect of a phase 1 inquiry.

The competing bids of both Comcast and Fox can be taken forward. Where that process concludes will ultimately be a matter for the shareholders of the relevant companies. In a sense, this decision leaves them on a level playing field, commercially, as far as their respective bids are concerned.

Data Protection Bill [HL]

Debate between Lord McNally and Lord Keen of Elie

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

[Lord Keen of Elie]

My Lords, I am grateful for the contributions of noble Lords. The noble Lord, Lord McNally, referred to me making blood-curdling threats. I made no threats—blood curdling or otherwise—and what I did say was essentially true.

This Bill is about data protection. The primary concern of your Lordships’ House, which we have debated over recent months, is whether individuals have the ability to defend themselves against excessive press intrusion, and the Bill now provides a number of mechanisms to address this concern. These are all designed to maintain the freedom of the press and the independence of self-regulation, albeit in compliance with the law. For example, it was announced three weeks ago that IPSO will introduce a low-cost mandatory arbitration scheme. We are determined that there will be no backsliding on that kind of commitment, and Commons Amendment 62BC is designed to ensure that the use of such schemes is reported on—a point to which I will return in a moment—to reduce any temptation there might be to turn away from them once the heat of the Bill is off.

The noble and learned Lord, Lord Falconer, sought, with vim and vigour, to address two points. I was slightly taken aback because, a few minutes before we began this debate, I had endeavoured to explain to him the operation of Clause 174(3)(b) and its interrelationship with Clause 144, and thought I had done so quite well. However, clearly I failed to some extent in that regard. I had also sought to give him further assurances about the role of the Secretary of State.

On the first point—the operation of the Information Commissioner’s powers—as I had sought to explain to the noble and learned Lord, under his amendment the Information Commissioner would have had access to prepublication material gathered for journalistic purposes. It was acknowledged across the House, and by the noble Lord, Lord McNally, during earlier debates that that could not be tolerated given the intrusion it would involve upon press freedom and journalistic preparation. The interrelationship between Clauses 174 and 144 is complex, but I again make it clear that the effect is that the commissioner will not be able to access prepublication journalistic material but will be able to access material that has been processed for the purposes of journalism.

On the second point, about the power of the Secretary of State, one has to be clear that this is not actually a power but simply a duty to report. It is for the Secretary of State to report, and he could do so even without an express statutory power, but this is to underline it. We are making it a clear duty, to import transparency into the process. He will essentially be reporting on the metrics available with regard to the take-up of alternative dispute resolution. The effectiveness of dispute resolution will be determined by reference to its take-up and its resolution. It will then be for us—Parliament and the people—to determine in light of those facts whether we consider that further steps have to be taken.

Let us be absolutely clear: the Bill imports no power on the part of the Secretary of State to compel the media to act in any way on the report that he is putting in place. This is simply a mechanism by which he can ensure that the relevant facts and figures—if I can put it that way—are laid before Parliament at the appropriate time. I hope that I have been able to put both those reassurances with greater clarity than I did a few minutes earlier, and to reassure the noble and learned Lord on those points.

I am obliged to the noble Lord, Lord Stevenson, for the observations he has made, and I hope again that he is reassured by the position the Government have now adopted regarding the intent and consequences of the amendments from the House of Commons. As regards the observations from other noble Lords around the House, I recognise that there has been widespread concern about the way in which we have been able to address the past and the need to address the future, having regard to the fundamental requirement for freedom of the press—one of the foundations that underpins our democratic process. Before closing, I acknowledge the contributions of the noble Baroness, Lady Hollins, to this entire debate. I quite understand why she has maintained the need to bring these matters before the House on a number of occasions, and I do not seek to imply any criticism of her in that regard.

We have reached a point where the Bill should pass, however. It has to, really. It is in those circumstances that I invite the noble Lord to withdraw his amendment to Motion A.

[Lord McNally]

My Lords, when I studied the British constitution 50 years ago I read the books by Sir Ivor Jennings, who said that one of the only weapons that an Opposition have against a Government is time, and that an Opposition—and, indeed, critics on a Government’s own Benches—are perfectly entitled to use time to put pressure on Governments. My goodness, we have had a cascade of useful changes because we have used time to press the Government further on the issue.

As I said before, the line between the Daily Mail and the MailOnline is increasingly blurred. This legislation will be tested against that blurred background. At some stage, the old print media may regret not being in the comfortable protection of a royal charter, as my learned friends listening to this debate must think that there is a lot of work ahead for them as this Bill is tested.

We never wanted to stop the Bill coming into law, and I beg leave to withdraw Motion A1.

Media: Press Sustainability

Debate between Lord McNally and Lord Keen of Elie

Thursday 22nd March 2018 Lords Chamber

[Lord Keen of Elie]

We have to identify a model by which the local and national press can continue to deliver what is required of an independent and informed news source. That has been the subject of change, clearly; we have passed from the days when a piece of journalism could be accompanied by an advertisement and, therefore, self-sustaining. We have to look at how we can sustain our media in future.

[Lord McNally (LD)]

My Lords, will the Minister not consider that his one-word reply to my noble friend Lord Razzall holds only till the next newspaper scandal hits us? Will he not accept that we still have a media self-regulating in its own self-interest, and that the abandonment of Leveson 2 is a massive missed opportunity, given that data is now today’s headline?

[Lord Keen of Elie]

No.

Leveson Part 2: Sunday Times

Debate between Lord McNally and Lord Keen of Elie

Wednesday 7th March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Government have to take decisions about what is proportionate, appropriate and in the public interest. Our analysis is that the terms of reference for part 2 have already largely been met and that the cost and time of part 2 would be disproportionate and not in the public interest.

[Lord McNally (LD)]

My Lords, one of the things we did not have last Thursday when the noble and learned Lord made his Statement was Sir Brian Leveson’s letter. In both Houses, an impression was given that Sir Brian basically accepted what was going along. Through Hansard I urge every Member of this House to go to the House of Lords Library and look at the letter, which is a devastating six-page indictment of what this Government have done. He makes it very clear that he wanted to go on with it. He does not accept that IPSO is up and running so wonderfully. He points out examples, such as the Manchester terrorist outrage reported by the noble Lord, Lord Kerslake, where there was intrusive press behaviour, and in the letter he quotes recent worrying police and media collusion. He also challenges the Government about cost. It is a devastating indictment. Does the Minister think that the way the Government have handled this is in any way in the spirit of the Inquiries Act 2005, which requires consultation with the chairman as a safeguard so that no Government will cut and run from an inquiry? That is exactly what this Government have done. Will he again consider a more constructive response to what was said by the Official Opposition? We were getting this right when we were working together. It has gone badly wrong since the Government have started cutting their own deals with the press barons.

[Lord Keen of Elie]

My Lords, of course since the 2005 Act we have to consult the chairman of an inquiry, and that is exactly what we did. Thereafter we had to make a judgment about the way forward. Newspapers today are in a very different position from when the phone-hacking scandal occurred back in 2011. The events just reported relate to a period between 1995 and 2010. We have seen significant reforms to press regulation, and we have discussed that before in this House. It is our considered opinion and judgment that it is not appropriate or proportionate to proceed with part 2 of the inquiry.

Leveson Inquiry Update

Debate between Lord McNally and Lord Keen of Elie

Thursday 1st March 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, it is never a pretty sight to watch a Government capitulating to vested interests. At such a time, it is always useful to look around and see who is smiling. Certainly, Mr Rupert Murdoch will be smiling, as will Lord Rothermere, Mr Paul Dacre and the Barclay Brothers—owners or editors of the Times, the Sun, the Mail and the Telegraph respectively.

It was nearly 30 years ago, in 1990, that the Calcutt commission recommended the setting up of a Press Complaints Commission. The Government of the day welcomed that report and set up the Press Complaints Commission, but warned that it was a “final chance” for self-regulation, or, as the then Secretary of State, David Mellor, put it, the press were,

“drinking in the last-chance saloon”.

The trouble is, what has happened since? There was no learning of lessons or improvement of behaviour, with the addition of corruption and criminality to the cocktail of press failings under the stones that Lord Justice Leveson turned over.

This Statement is littered with high-minded declarations, such as,

“free to … investigate without fear or favour … underpin our democracy … integral to the freedom of our nation”,

and,

“safeguard the lifeblood of our democratic discourse”,

but the truth is that none of those high-minded aspirations would be put at risk either by implementing Section 40 or by continuing with part 2 of Leveson. They are put at risk by behaviour that undermines public trust and diminishes confidence in our democracy.

Will the Minister clarify a number of points? First, will he put in the Library of the House the precise terms on which Sir Brian Leveson believes his inquiry should have continued? Secondly, when will the terms of reference and chair for the new review into the sustainability of the press be announced? Will it be that review or Ofcom that looks at the increasing overlap between print journalism, online journalism and broadcast news, which now sits with the various oversight bodies that regulate them?

The sentence in the Statement with which I agree entirely states that challenges that were only in their infancy in 2011 have now to be faced. Issues such as misinformation, fake news, malicious disinformation and online abuse all threaten both the quality of journalism and the fundamental rights of our citizens.

But this Statement is not a response equal to that challenge. For all the crocodile tears, it will do nothing to preserve local newspapers. It leaves the victims of press abuse with their hurt still raw and unassuaged by any sense of justice done. It was very interesting that a few hours after the Manchester bombing, journalists were knocking on the doors of victims, intruding into the private grief of people who had lost their children that night. So much for conscience and regret.

It leaves a self-serving regulator, IPSO, which is as ineffectual and compromised as its predecessor, the PCC. As the noble Lord, Lord Stevenson, said, it is open to IPSO to come within the Leveson recommendations, and if there were any sense of trying to meet the all-party approach that the noble Lord, Lord Stevenson, advocated, that is what IPSO would do. It leaves our media landscape not, as it should be, a balance of quality, diversity and choice, but again simply an accident waiting to happen, as those guilty of past abuse remain in power, with no sense of contrition or shame, and there is still no effective means of holding the perpetrators of that abuse to account.

It is not even an outcome of the consultation. It is the fulfilment of a squalid political deal between the press barons and the Conservative Party which the Secretary of State will live to regret. What is certain is that the name of Leveson will rank higher in the list of defenders of freedom of the press than any member of this Government.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their responses.

Sky-Fox Update

Debate between Lord McNally and Lord Keen of Elie

Tuesday 23rd January 2018 Lords Chamber

[Lord McNally (LD)]

My Lords, I associate myself with the points made by the noble Lord, Lord Stevenson, about the second stage of Leveson and also the remedies that have already been put forward on media regulation. I welcome this Statement and the ongoing commitment of the Secretary of State to keep both Houses informed. I also appreciate the continuing interest of the Minister in this House, the noble and learned Lord, Lord Keen, in the matter. Like the noble Lord, Lord Stevenson, I would welcome a continuation of that informal dialogue. We welcome the interim findings concerning the public interest not being served in terms either of diversity or the influence of the Murdoch Family Trust.

On the commitment to broadcasting standards, I share the concern and puzzlement of the noble Lord, Lord Stevenson. I find it odd that in terms of commitment to broadcasting standards, the proposed merger does not operate against the public interest, echoing an earlier and very disappointing finding by Ofcom. In three continents over 60 years—in Australia, the UK and the USA—Mr Murdoch has been a major factor in lowering standards in both print and broadcast media. I am pleased that the Secretary of State is taking his time to think and consider. Frankly, he has been a little too eager to shoot from the hip in his first few days in office, so this more considered response is welcome.

I still believe that a healthy media ecology rests on a mantra of quality, diversity and choice. All three are threatened by an extension of Murdoch power. It is important to defend the integrity of Sky News, where the lack of 100% control has mitigated against the Murdoch effect. But the Secretary of State needs to go further and consider carefully how we protect our public service broadcast news on the BBC, ITV and Sky News. We need to review the protection of news sources in the light of the impact of new technologies. Here again, Ofcom needs to be proactive in reviewing and bringing advice on these matters.

We must also keep an eye on the implications of the Disney takeover of Fox. Does the Minister have a timetable or guesstimate about how soon the US authorities will come to their conclusions? For we must make sure that any remedies to protect the public interest are real and effective, not simply fig leaves to cover up a surrender to big media power. This is a welcome Statement but it is not the end of the matter. We need a robust Secretary of State to defend the public interest but, on that, I am afraid the jury is still out.

[Lord Keen of Elie]

I am obliged to the noble Lords for their observations. I note that the noble Lords, Lord Stevenson and Lord McNally, would both like to see a continuation of the informal all-party meetings that have taken place. I will of course pass that to the new Secretary of State for his consideration.

I cannot comment upon the terms of the provisional report and I know that Members of this House would not expect me to do so. The final decision will be a quasi-judicial decision for the Secretary of State, one which he will make in the light of the final report and in respect of which he will give reasons. With regard to the Fox-Disney transaction, both Disney and 21st Century Fox have stated clearly that the intention is for 21st Century Fox to continue with its bid of December 2016 before the Disney acquisition is completed. But I am not in a position, any more than any other of your Lordships, to determine when that final process will be completed. It will be subject to procedural issues in the United States of America, quite apart from anything else.

Probation Service

Debate between Lord McNally and Lord Keen of Elie

Thursday 14th December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, we are not satisfied with the telephone form of probation but, as I said, contact with offenders has to be proportionate to the risk they present.

[Lord McNally (LD)]

My Lords, I assure the Minister that when these proposals were put through by the coalition Government they were ideologically driven, and some of the flaws that have emerged reveal the kind of compromises that were created in the probation service. Before these reforms, the probation service had an excellent report; we now have this disastrous report. If the Minister is approaching this ideologically, I put it to him that there is now a strong case for handing probation over wholly to the National Probation Service.

[Lord Keen of Elie]

My Lords, I am not approaching this matter as an ideologue. I am approaching it as a Minister with responsibility for the implementation of the existing system of probation, in which we continue to have faith.

Data Protection Bill [HL]

Debate between Lord McNally and Lord Keen of Elie

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

[Lord Keen of Elie]

I am certainly open to any meeting that the noble Baroness would wish to engage in to discuss these matters. In so far as I am able to inform her, and indeed the Committee, of developments, I will seek to do so.

[Lord McNally]

Just to be helpful to the Committee, if it was published after Report, does the Minister agree that it would be perfectly reasonable to have a Third Reading amendment to reflect whatever has come out of that response?

[Lord Keen of Elie]

With respect to the noble Lord, I am not the litmus test of reasonableness—at least, I have been told that in the past.

--- Later in debate ---

[Lord Keen of Elie]

I quite understand the force of the noble Lord’s observations. Nevertheless, I am not in a position to say that the response will be available for publication before Report. I am afraid that we have to proceed on that basis. It may have consequences such as those set out by the noble Lord, and we will have to address those in due course. I am afraid that I cannot go further on this point.

Finally, I come to some of the observations of the noble Lord, Lord McNally, who spoke to his Amendments 185E and 185F. I begin by saying that I have no wish to disappoint either the gentleman on the Clapham omnibus or the noble Lord himself. Therefore, I will endeavour to address the questions that he raised as fully as I can. I take account of his commendable intention to peruse Hansard over breakfast and to come to a view as to whether or not I have fully responded to his points.

Amendments 185E and 185F seek to make the unlawful obtaining of personal data a criminal offence with a custodial sentence of up to two years under Clause 175. Of course we recognise the seriousness of any offence that is committed in this context. That is why it is important that proper thought is given to the introduction of any changes which would seek to put in place custodial penalties that could remove people’s liberty. Under the coalition Government, in March 2011, the noble Lord, Lord McNally, said that the Government would not commence prison sentences for Section 55 offences but would continue to keep the matter under review. At that time Ministers agreed to pursue non-custodial options, instead of a custodial option, including encouraging the use of the Proceeds of Crime Act 2002 and making the offences recordable. Indeed, it is this Government’s intention in this Bill that the offences should now be made recordable. That is addressed in Clause 178.

Again, this is one of those complex areas where we have to achieve a balance between competing rights and obligations. We believe that, for the reasons I sought to set out earlier, we are achieving the right balance with the provisions in the Bill. I hope that the noble Lord will feel open to not moving his amendment.

[Lord McNally]

My Lords, I will consider that point in a few moments, but I am much reassured that the noble and learned Lord has more respect for the man on the Clapham omnibus than he seems to have for BBC lawyers. That is a step forward.

[Lord Keen of Elie]

No inference can be drawn regarding the considerable respect in which I hold the legal advisers of the BBC.

Update on Proposed Fox-Sky Merger Process

Debate between Lord McNally and Lord Keen of Elie

Tuesday 12th September 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, like the noble Lord, Lord Collins, I welcome this Statement and I am grateful to the Minister and the Secretary of State for the thorough way that she has kept those of us interested briefed as she has come to these decisions. I also welcome the revised advice from Ofcom. I was part of the committee that created Ofcom and have always been proud of the way it has developed as a regulator. I have to say that its first advice on these matters came close to being equivalent to what the Premiership seems to think of as fit and proper to run a football club. The revised advice gives some credibility back to Ofcom in these matters, and it should be grateful to the Secretary of State.

I am a little worried about the sudden appearance of the term, “non-fanciful”. I am not sure that the Minister, with his long and distinguished legal career, would be able to tell me how “non-fanciful” is weighed in matters of judgment. As the noble Lord, Lord Collins, asked, would worries about data mining and abuse of data be dismissed as “fanciful”? When we bandy terms such as non-fanciful about, we should remember that most of the accusations made about News International in the past 10 years were initially dismissed as fanciful—as being made up by enemies of the Murdochs—but then turned out to be true. I am not so sure that “fanciful” and “non-fanciful” should be used in the work ahead.

In taking its decisions, the review should look at the threat to the UK media industry. Our media in all their aspects are among the least protected of national media from predatory attack. As the value of the pound falls, there is good reason for being careful about the message that we send out about our determination to defend the integrity of our media.

I associate myself also with the call made by the noble Lord, Lord Collins, for the second part of Leveson to go ahead.

As a Fox subscriber, I was interested to learn that Sky thought that Fox News was so little to the taste of the British viewer that it has taken it off its platform, whereas it has left on it the Iranian and Russian news channels.

[Lord Keen of Elie]

My Lords, I begin by responding to the point raised by the noble Lord, Lord McNally, on what is “fanciful” or not, because it goes to the heart of the decision-making process addressed by the Secretary of State. It is a term with a legal basis that is linked to the statutory test for a phase 2 referral in public interest cases. I mention in passing the Court of Appeal decision in the case of the Office of Fair Trading v IBA Health. I shall not elaborate on the dicta in that decision, save to mention that there is a legal basis.

The Secretary of State must believe that the merger operates, or may be expected to operate, against the public interest. In her coming to her view that the evidence meets the test of “non-fanciful”, it should be noticed that that is a relatively low threshold. It is not necessary that the Secretary of State should be satisfied on the balance of probabilities or beyond reasonable doubt; the belief must be reasonably and objectively justified by the facts. In other words, there must be an evidential basis for the Secretary of State’s concern, but the concern itself does not need to be proven. That is essentially the approach that underpins the Secretary of State’s decision-making process here.

On broadcasting standards, I emphasise to the noble Lord, Lord Collins, that we are dealing at this stage with the Secretary of State’s “minded to” decision. It is not a final decision. There is now a 10-day process, pursuant to Section 104 of the Act, whereby the parties can respond and make submissions before any final decision is arrived at.

As regards evidence and data in the context of media plurality, it is premature for me to elaborate on what has already been said on these matters because a final decision has not been made on the second ground of broadcasting standards. If and when such a decision is made, there will in any event be a reference to the CMA, and it will be for the CMA to discharge its statutory functions. It would not be appropriate for me at this stage to anticipate how the CMA should go about its own statutory task. That would be to intrude into its territory. With all due respect, I hope the noble Lord accepts that it would not be appropriate for us to tread on that lawn, as it were.

On the question of Leveson 2, we have clearly progressed a long way since the first part of the Leveson inquiry was set up over six years ago. We have witnessed the completion of three detailed police investigations, extensive reforms to practices involving the police and some significant changes to press regulation. We have put this matter out for consultation and are considering the responses to it. We will publish a response in due course.

Fox-Sky Merger

Debate between Lord McNally and Lord Keen of Elie

Thursday 20th July 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, like the noble Lord, I welcome the Statement and the courtesy and openness with which the Secretary of State has approached her responsibilities. That is why I find it extraordinary that, having emphasised and carried out her duties to Parliament so assiduously, it could even be suggested that she should make a decision during an eight-week gap between Parliament rising now and returning on an issue that has been before her, regulators and Parliament for years. That would be an absurd assault on parliamentary dignity and responsibility, and I strongly urge her not to follow that road.

Part of the problem is the siloed nature of the decision, when what is needed, as the noble Lord said, is a holistic judgment about the fitness of this takeover. But that is how it has been played. The problem is also the siloed nature of modern business structures. Various parts of the structures can clear part of the siloed questions when we all know, as I have said, what the web is and that the spider is at the centre of that web.

I also press the Minister on whether this could lead to the second stage of Leveson and on the point made right at the end. I remember a few years ago somebody buying a canal and everybody thought what an absurd price he had paid for a canal—the age of canals was over. Then it suddenly dawned on everybody that he had not bought a canal; he had bought miles and miles of land on either side of the canal and made a fortune as a property developer. The same is true now, as the noble Lord has said. I have often pondered what on earth niggles Murdoch that he has tried, year after year, to get 100% control of Sky. What act of vanity is this? He may be vain but he also knows where a quick buck is to be made. It occurs to me that there is ample evidence that what Sky has is a database of some 13 million people, which could become increasingly valuable in the data battles ahead. I wonder whether the Secretary of State has asked the Information Commissioner’s advice on this aspect of the takeover and on how it fits into other legislation that we are considering. This is a foreign bid for a British database, which should give concern about how it is being handled. I go back to the friendliest of warnings: the Secretary of State would be very wrong to consider making this decision while Parliament is in recess.

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their observations on this matter and I appreciate their acknowledgement that the Secretary of State is endeavouring to treat this matter in as open a way as possible. Given the quasi-judicial nature of the task that has been laid on her by statute—one that she cannot alter by her own whim, as it were—and bearing in mind the quasi-judicial process that we are in, it is implicit that the Secretary of State must act promptly, for the benefit of both the public and the parties interested in the proposed merger. It is in those circumstances that she has to consider the matter of timing. I appreciate the point made by the noble Lord, Lord McNally, about the dignity of this House, the other House and Parliament in general, but the Secretary of State is in a position where, because of the timing issues, the announcement is liable to be made during recess. As she has said, however, she is intent on assuring the House by way of intimation to the Speakers of both Houses when the decision is made and the nature of that decision.

The noble Lord, Lord Stevenson, referred to her decision. I reiterate that the Secretary of State has made no final decision on any matter. She has reached a preliminary view on the basis of the information before her at present.

So far as standards are concerned, further work will be done before a final decision is made. In particular, the Secretary of State will look at all the representations that have been submitted to her until Friday, which cover both media plurality and broadcasting standards. She will look at both issues before coming to a final decision. It is possible to reach an informed decision and verdict without a body. The circumstantial evidence may be compelling in itself, and all the circumstantial evidence will be taken into account.

As for the reference to the CMA, it would not be for the Secretary of State to constrain the scope of the CMA’s phase 2 investigation, and I would not suggest that any constraint should be placed on that investigation by the Secretary of State.

I hear what is said about data protection but we have to remember that personal data held by Sky, or indeed by Fox, are protected by the Data Protection Act. That applies not only to personal data but to more extensive caches of data held by Sky, so there is already a degree of protection in place.

Part 2 of Leveson was raised. No final decision has yet been made on that. Indeed, no final decision can be made until the chair of that inquiry has been consulted on the point. A statutory provision under the Inquiries Act dictates that the chair of an inquiry will be consulted before any final decision is made about the second phase of an inquiry programme, so that remains outstanding.

In these circumstances, I again commend the Secretary of State’s Statement to this House and reinforce the point that she has arrived at no final determination but will do so only after she has considered all the representations submitted to her.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, regulators do not have a role in scrutinising what data are held by companies involved in mergers, but if representations are made about the issue of data, such as data-scraping or data accumulation, those are matters that the Competition and Markets Authority will take into account in arriving at any decision that it makes in the context of a phase 2 inquiry.

[Lord McNally]

Has the Information Commissioner been consulted? I did ask that question, and the noble and learned Lord did not answer.

[Lord Keen of Elie]

I am not in a position to answer that question at this time, but I shall endeavour to make inquiries and write to the noble Lord to advise him on the positon on that point. I shall place a copy of any letter in the Library.

Prisoners: Imprisonment for Public Protection Sentences

Debate between Lord McNally and Lord Keen of Elie

Thursday 20th July 2017 Lords Chamber

[Lord Keen of Elie]

IPP prisoners have access to the appropriate programmes and matters have improved considerably over the past few years so far as that is concerned, but it is not always necessary that an IPP prisoner should undergo a specific programme to satisfy the Parole Board as to their suitability for release. There are other means by which this can be achieved.

[Lord McNally (LD)]

My Lords, as the noble Lord, Lord Blunkett, acknowledged, both the Ministers who brought in this legislation and the coalition Government who abolished IPPs saw them as a mistake. Section 128 was put into the Bill particularly to deal with the present situation that the Minister faces. It is not true that he is dealing with this problem in a way that will get rid of it quickly. It will be with us well into the next decade. It is also not true, as he implies frequently, that what the noble and learned Lord, Lord Brown, I and others are doing is throwing open the gates for dangerous prisoners. There would still be a very hard, close process before these men were released but it would get rid of an obvious and glaring injustice. The Government should make use of Section 128 for the reason it was put there.

[Lord Keen of Elie]

We are of course conscious of the ability to move under Section 128. That remains under review. However, under the present regime we have seen an acceleration in the number of releases. Be that as it may, let us keep in mind the simple fact that where people achieve the present test, we have a breach of licence conditions rate of about 30%. We are dealing with very difficult and in each case dangerous individuals who must be managed in the community for its safety as a whole.