Investigatory Powers Bill

Debate between Lord Paddick and Baroness Hollins

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I had hoped not to detain the House, but last night the Government indicated, to my surprise, that they will oppose this amendment. I hope noble Lords will understand the need for me to set out some of the context.

The debate on Report was very clear about the intention of our amendments to Clause 8, and the large majority in the Content Lobby affirmed this. The noble Earl the Minister helpfully suggested that our original amendments, as drafted, may not achieve our stated objectives. I took advice from the Public Bill Office at some length to clarify the amendment, as allowed for in the Companion to the Standing Orders, at Third Reading. Amendment 1 today aims to ensure that costs protections will apply to new claims alleging illegal phone or email hacking by newspapers, as was originally intended and as was debated.

If the clause is amended today, it will implement, to the limited degree that we are able in this Bill, the court costs incentives and protections of Section 40 of the Crime and Courts Bill, which Parliament overwhelmingly agreed over three years ago. So far the Government have failed to commence Section 40, in breach of that cross-party agreement, so this amendment is just one tiny step towards bringing some much-needed balance into the system.

I refer noble Lords to the report issued to Parliament by the royal charter Press Recognition Panel only last week, which clearly and cogently emphasised why such changes are needed and called on Her Majesty’s Government to commence Section 40. We should remember that the independent Press Recognition Panel audits press regulation; it is not a regulator.

I have had discussions with senior members of Her Majesty’s Government, who contacted me to persuade me not to pursue this amendment on the grounds that it may somehow delay Royal Assent for this important Bill, which has as one of its primary purposes the aim of improving national security. However, given the huge support that the amendments have received so far, I am not minded to give way to this pressure. Very briefly, I will explain why.

One argument being made by the press recently that small local newspapers will be at risk from Section 40 is wrong. Newspapers can simply choose to join a recognised regulator and get the same costs protections that the public will get, unlike newspapers that choose not to join. Since we last divided, there is now a recognised regulator: Impress. The limited amendments to this Bill will not affect small newspapers adversely at all—they do not hack phones. The local newspaper threat is a smokescreen. The protests are really coming from the big newspaper groups, which own most of the regional papers and in effect are using them as newsprint shields. It is the big companies preventing the small papers that they own from seeking the costs protection that flows from membership of a recognised regulator. It is precisely the small papers that will benefit from Section 40 protection—they will be much better placed to practise good investigative journalism—unless they choose voluntarily not to seek that protection. That should be their choice.

This is now urgent. Now that Impress has been recognised, many independent small publishers that are already Impress members are suffering actual detriment from the non-commencement of Section 40, and victims of non-Impress newspapers are not getting the costs advantages they were promised. It is complicated. A central theme in the Leveson report and the cross-party agreement to implement it was how to prevent political interference in press regulation in the interests of free speech. That is why the independent Press Recognition Panel was established, which is politician free. But political interference by the Government is what we are now seeing, with the Secretary of State holding the starting gun for the commencement of Section 40. The Secretary of State appears to accept that IPSO is nowhere near good enough but believes that political pressure will force it to improve to a point where it is on a par with Impress.

On behalf of victims of press abuse, the general public, newspaper readers, front-line journalists and those of us who gave evidence to the Leveson inquiry, I call on the Government to commence Section 40 as they promised to do when this House and the other place overwhelmingly passed it into law. If the Government do so now, we in this House will not need to see the Bill again. But if there are problems with the amendment which might affect security in some way—unbeknown to those of us who have added our name to it—perhaps the Government could meet me and interested parties, and allow a few days’ latitude to get this right. I beg to move.

[Lord Paddick (LD)]

My Lords, briefly, I support the noble Baroness. My understanding is that this amendment has been tabled because of a drafting issue in the amendment that was overwhelmingly passed by the House, on the basis of the principle of protecting those whose phones have been hacked into by newspapers which have not signed up to an independent complaints system. It is also because the original amendment applied only to private communication networks; Amendment 1 would change it to public communication networks. There is no question at all of a change in principle. I therefore do not understand why the Government would not agree to support this amendment, which is clearly simply to correct that drafting issue. On that basis, we will support the noble Baroness.

Investigatory Powers Bill

Debate between Lord Paddick and Baroness Hollins

Monday 11th July 2016 Lords Chamber

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendments 16, 20, 21, 22 and 84 in this group.

Amendment 16 concerns the offence of unlawful interception, but in the Bill as drafted that applies only to public telecommunications systems, private telecommunications systems and public postal services. It does not apply to private postal services. Examples of those could be the postal services used by the legal profession such as Legal Post and DX. Can the Minister inform the Committee why private postal services are not included in that provision?

Amendment 20 relates to the provision that,

“Conduct which has lawful authority for the purposes of this Act … is to be treated as lawful for all other purposes”.

Presumably, this provision is to avoid the problem we have had in the past where, while interception or equipment interference was allowed under one piece of legislation, it was an offence under the Computer Misuse Act 1990. Presumably, that is why this provision has been included, but surely it should apply to existing legislation—and it should state that it should apply to existing legislation—not to legislation in the future.

Amendment 21 is again about any other conduct under the Bill being treated,

“as lawful for all purposes”.

Surely this should not be as broad as that. It should be restricted to what is lawful only for the purposes of this Bill.

Amendment 22 concerns the service of monetary penalty notices. Paragraph 4(4)(g) of Schedule 1 allows for an oral hearing before the commissioner, but the amendment would add that the person who applies for and is granted an oral hearing before the commissioner can be legally represented.

Returning to something that I referred to in my opening remarks, Amendment 84 is about restrictions on unauthorised disclosures which as written would prevent the Secretary of State from disclosing the existence and contents of a warrant. The amendment would allow the Secretary of State to disclose the existence and details of a warrant if she felt it was necessary in order for Parliament to carry out its functions. As I mentioned before, I do not see how the argument can be made that the Secretary of State should be involved in the authorising of warrants because she can be held to account, when she is not able, under the terms of the Bill as drafted, even to admit that such a warrant exists.

[Baroness Hollins (CB)]

My Lords, I gave evidence to the Leveson inquiry about the press intrusion suffered by my family and I am going to speak to Amendments 18 and 246 in my name.

In Section 1(3) of the Regulation of Investigatory Powers Act 2000, there was a statutory tort for interception of communications. This has not been recodified in the Bill, presumably because the common law has proven to be a sufficient basis for legal actions against those who hack communications. The effect of subsection (1) in my Amendment 18 is to reinstate that tort. The effect of subsections (2) to (5) in my amendment are then to provide access to justice for victims of phone hacking—the criminal offence recodified in subsection (1). It will enable them to sue, without cost risk to themselves, those newspapers which have invaded their privacy but are refusing to guarantee low-cost arbitration.

I hope that this amendment will encourage the Government to bring into effect law already passed by this House and the House of Commons in Section 40 of the Crime and Courts Act 2013. Amendment 18 replicates Section 40 of that Act in a limited way for claims made by victims of the interception of private communications—phone hacking—because only these claims are in the scope of this Bill. The consequential amendment to Clause 243 would have the effect of automatically commencing the provision immediately after Royal Assent to prevent government non-commencement, as has happened with Section 40. Of course, if the Government commence Section 40 forthwith, this amendment will be withdrawn. If the Government do not, this amendment would have the same effect as that law, at least for victims of phone hacking.

I am very grateful to noble Lords from across the House who are supporting these amendments, and for briefings and drafting assistance from Hacked Off, through which I have been introduced to many other victims of press abuse. I remind noble Lords that Lord Justice Leveson’s inquiry found that voluntary newspaper self-regulation by the Press Complaints Commission had failed appallingly and urged Parliament and the Government to ensure that any new regulator set up by the press would be accredited by an independent recognition panel to assure its independence and effectiveness. The idea was, and Parliament agreed, that the newspapers would have to join such a regulator and not be allowed to set up another version of the PCC. The terms of Section 40 of the Crime and Courts Act were agreed, somewhat reluctantly, by the Government to avoid defeat in both Houses in March 2013.

Section 40 was part of the cross-party agreement which included the royal charter, and was signed by the Prime Minister and the leaders of the Labour and Liberal Democrat parties. As a result of this agreement, the noble Lord, Lord Skidelsky, withdrew his amendment to the Enterprise Bill in March 2013 which would have implemented the Leveson-recommended recognition panel by statute. Ben Bradshaw MP and Simon Hughes MP similarly withdrew their amendments to the Crime and Courts Bill, which would have brought in a stronger and faster version of Section 40.

Section 40 provides protection from court costs in libel, harassment and privacy cases involving newspapers and has three policy aims. The first is to guarantee access to justice for claimants in libel and privacy cases against non-Leveson-regulated newspapers. The second is to protect investigative and public interest journalism at newspapers from court costs and thus from so-called “libel chill”. The third incentivises non-Leveson-regulated newspapers to join a Leveson-style self-regulator which has been accredited as independent and effective.

Section 40 would have to be commenced in the usual way provided in all Bills,

“on a day appointed by the Secretary of State”.

It was agreed, cross-party, that commencement of Section 40 would be well before the exemplary damages provision in Sections 34 to 39. Those sections, on exemplary damages, were to come into effect one year after the royal charter Press Recognition Panel had been set up, which should have been in November last year. This makes Section 40 well overdue. Ministers made multiple explicit commitments on the Floor of both Houses to bring in Section 40—I have a list of 25 such commitments. However, last October the Secretary of State announced at a meeting of newspaper editors, that he was “not minded” to commence the statute. Since then, despite being asked on a number of occasions, the Secretary of State has apparently failed to point to any precedent for such non-commencement of part of an Act of Parliament.