Media Bill

Lord Pannick Excerpts

Report stage & 3rd reading
Thursday 23rd May 2024 Lords Chamber

I just wish that those on the other side can see genuine attempts on all sides of the House to find a way forward on this, and that there will come a time when they regret not picking up the offers that were on the table. As I say, the public outside do not see this as an attack on press freedom; they see it as an attempt to bring a section of our public life within the realms of decency, and that fight will go on.

[Lord Pannick (CB)]

My Lords, when a judge gives a dissenting judgment, he or she often says that they have the misfortune to disagree with the other judgments. I have the misfortune to disagree with the observations made by all previous speakers in this debate. I declare my interest: I occasionally contribute to the press, as do many other noble Lords, and have acted as counsel for various media organisations, and indeed people suing the press, including in proceedings concerned with Section 40.

I can see no conceivable justification for giving special legal protection in relation to those publications which are signed up to the authorised regulator. Section 40 has not been implemented since 2013; it has long been effectively dead and it is high time for it to receive a decent burial. In the last 10 years-plus, we have seen the unauthorised Independent Press Standards Organisation act with independence, impartiality and good judgment to rule on complaints about press conduct. It has done so since 2020, since when it has been chaired by my noble friend Lord Faulks. Under his distinguished chairmanship, it has produced 800-plus rulings on thousands of complaints. Those 800-plus rulings are all contained on the website; they are entirely transparent.

What I find astonishing in this debate is that none of the speakers—who are so wedded to there being a protected, authorised organisation—has made any criticism whatever of any of the rulings made by the unauthorised IPSO. Your Lordships may know that the Times, the Telegraph and the Spectator have all complained that IPSO has been too tough on the press. If there are criticisms of IPSO, I would have expected to hear them today, but I have not. The noble Baroness, Lady Hollins, spoke of the need for high standards of ethical media regulation, but that is what we have from IPSO.

I am very delighted to see the noble Lord, Lord McNally, back in his place and that he is restored to good health; I wish him well. He spoke of the influence of big money. There is an independent regulator, which is under the noble Lord, Lord Faulks; his predecessor was a very distinguished, independent Court of Appeal judge, Sir Alan Moses, whom no one could accuse of being in anyone’s pocket. It is preposterous to suggest that there is no independent press regulation other than the authorised body.

The authorised body is Impress. I am sure that it has greatly impressed its new member, the organisation Responsible Reptile Keeping. Many, including the vast majority of the press, are not impressed by it to the extent that they wish to be regulated by it—and that is entirely their choice. It is wrong in principle that we should maintain any legislation that provides any advantage to anyone in relation to that body. The noble Earl wishes to intervene.

[Earl Attlee (Con)]

My Lords, I am extremely grateful to the noble Lord for giving way; I love debating this subject with him. I made a speech in the House of Lords in which I said that I would not name a bank, because it had been extremely helpful to me. That was reported in a newspaper, which said exactly the opposite: it named the bank and quoted all the horrible things that I had said about it. Those comments were actually from a position paper that I wrote some time before I made the speech. Can the noble Lord explain why, when I complained to IPSO, my complaint online disappeared into the ether? When I asked newspapers to publish a very nice letter from me, saying that there had been some misunderstanding and asking for the opportunity to correct the record, none of them agreed to publish it and my email just disappeared. That was because they knew that IPSO would have no effect.

[Lord Pannick (CB)]

The noble Earl knows very well indeed that I cannot possibly have any knowledge of the circumstances of his complaint. I am sure that if the noble Earl takes up the matter with the noble Lord, Lord Faulks, he will—as Ministers say—write to the noble Earl with an explanation. I am sure the noble Lord, Lord Faulks, will be very happy to place a copy in the Library of the House, but I cannot answer that.

Let us be realistic: we all have complaints about the press. Sometimes, they say nasty things about me; I am not as important as the noble Earl, so it is much rarer, but we are all aggrieved by the press. The fact that the press sometimes—maybe often—say foolish, unjustified things is the price of press freedom. There needs to be a regulator. However, there does not need to be an authorised regulator that has special protection, unless he and other noble Lords say that the unauthorised regulator does not do its job—but that is not the case.

[Lord Watts (Lab)]

If the noble Lord had been in the House yesterday, he would have heard my account of a woman whose daughter was run over in a hit-and-run accident. The Mail sent a reporter down to the scene of the crime, secured the CCTV camera footage and put the link to that story in its paper. She complained but, after six months, she had made no progress whatever. When she said she was stressed out, she was told by this independent regulator that that, if she was stressed out, perhaps she should drop the case. Is that the sort of justice the noble Lord is looking for?

[Lord Pannick (CB)]

Again, the House cannot possibly know all the circumstances. I very much doubt it, but IPSO may have made a mistake. I am sure that there are also many complaints to the authorised regulator that do not result in the complete satisfaction of the person who is complaining. It is absurd to suggest that that is so. We have to look, do we not, at the structure—at whether there is an independent, non-authorised regulator? I do not for a moment suggest that there are not people—I am sure there are—who have complaints about the press, and perhaps even complaints about IPSO. However, there is a system, and it is a perfectly proper, effective system under independent management. In those circumstances, it cannot possibly be right that we give special legislative protection to an authorised regulator.

[Lord Davies of Brixton (Lab)]

I am listening carefully to what the noble Lord is saying. Is he not amply illustrating the point that this provision is highly controversial? That is the real point of discussion in this debate, that such controversial matters should not be dealt with during wash-up.

[Lord Pannick (CB)]

The reality of political life—the noble Lord knows this as much as I do—is that wash-up is a very difficult constitutional concept. However, that is what we have, and it is the only way of getting business through. Since the noble Lord asks me, I do not think this is contentious at all. I thought the provision of Section 40 when it was enacted was a disgrace.

[Baroness Bennett of Manor Castle (GP)]

My Lords—

[Lord Pannick (CB)]

Wait a minute. I have continued to consider so since, and my views are confirmed by the fact that we have all managed perfectly well for 10 years.

[Baroness Bennett of Manor Castle (GP)]

My Lords—

[Lord Pannick (CB)]

Give me a moment. I said I would give way, but I would like to finish my point. If the noble Baroness does not mind, I would like to finish my answer to the noble Lord and then I will happily give way to her.

Therefore I do not consider this contentious, because there is no conceivable justification for maintaining any part of Section 40. I happily give way.

[Baroness Bennett of Manor Castle (GP)]

I thank the noble Lord for giving way, and I suggest that perhaps his tone is testimony to the degree of contention in your Lordships’ Chamber at this moment. I also contest the argument he makes that lots of examples have not been given. As was pointed out, examples were given yesterday in Committee, but your Lordships’ House is also very aware of the wash-up procedure and the need for speed, and people’s desire to progress. However, just to give the noble Lord one example, the NUJ—the National Union of Journalists—ethics and disabled members councils have written to IPSO complaining about its failure to address the way in which disabled people are covered by the media organisations that it is supposed to regulate, and asking for action. I have seen no sign of action. That is just one example, since the noble Lord asked for them.

[Lord Pannick (CB)]

That is a very sensitive subject.

[Earl Attlee (Con)]

My Lords—

[Lord Pannick (CB)]

No—please let me answer the noble Baroness. The treatment of disabled people is a very contentious issue on which strong views are held, and I am not going to get into that debate. The noble Baroness also complains about my tone. I am sorry she complains about it. What I am seeking to do—I hope very properly, because we are all grown-ups here—is to deal with the substance of the arguments that have been put in favour of these amendments.

[Lord McNally (LD)]

I had misjudged this debate. I thought that the noble Lord, Lord Black, would be the Don Quixote—I did not imagine that he would be the Sancho Panza. Has he ever heard of the term used in the United States, “a sweetheart union”? That is what IPSO is. It is owned by, financed by and dependent on the people it is supposed to regulate. We are always looking to get IPSO out of the clutches of those it is supposed to regulate—maybe that will be the greatest tribute to the noble Lord, Lord Faulks, during his chairmanship. Then we might believe the silken words that the noble Lord, a very experienced advocate, has been saying to us.

[Lord Pannick (CB)]

The noble Lord may recall, and the noble Lord, Lord Watson, will certainly recall, that Impress, the authorised regulator, was funded for a long time by the late Mr Max Mosley, who had very strong views about press regulation.

[Earl Attlee (Con)]

The noble Lord lost his case on that.

Football: Abuse and Violence

Lord Pannick Excerpts

Monday 12th December 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, does the Minister agree that even in the most important football games, referees sometimes make inexplicable decisions—a whole series of them—which have a very adverse impact on the result? In the light of that, will he commend the attitude of the England manager, Gareth Southgate, and the England players, who displayed admirable sportsmanship in the most difficult of circumstances?

[Lord Parkinson of Whitley Bay (Con)]

I will not speculate on any recent examples of the behaviour the noble Lord mentions, but I most certainly do congratulate the whole England football team for their conduct throughout the World Cup. They have made people, not just in England, very proud of their behaviour and people have enjoyed their very creditable performance.

UEFA Euro 2020 Final

Lord Pannick Excerpts

Wednesday 30th November 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

This falls into the work that the Sports Grounds Safety Authority has conducted in light of the noble Baroness’ review. My noble friend makes important points: I think that a lot has been done since the days he worked as a steward, but there is a lot more still to be done.

[Lord Pannick (CB)]

Does the Minister agree that one of the major problems last summer at the final was alcohol? Does he further agree that although there are many reasons for criticising the Qataris in relation to the World Cup, they may have discovered that to exclude alcohol from the vicinity of the ground—apart, of course, from executive boxes—helps to ensure a tolerable atmosphere for those who want to watch the football in a family-friendly environment?

[Lord Parkinson of Whitley Bay (Con)]

Certainly, as I have done when we have previously discussed this, I condemn the actions of a minority of people—in lots of instances, fuelled by alcohol—which spoiled the day for the law-abiding majority who wanted to go and enjoy the match. Of course, alcohol consumption at football matches has been considered by Tracey Crouch and the fan-led review, which also made the point that allowing clubs in the lower leagues to sell alcohol might give them an important sustainable income stream. We are considering the recommendations that she has made, and will bring forward views in due course.

Online Safety Bill

Lord Pannick Excerpts

Monday 7th November 2022 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The Bill is being scrutinised in another place by Members of Parliament from all parties. It is important that they complete that work before it comes to your Lordships’ House, but it has benefited from pre-legislative scrutiny by the Joint Committee, which again drew on people from all parties and none. I am keen to see that scrutiny continue in your Lordships’ House.

[Lord Pannick (CB)]

Could the noble Lord suggest to business managers that if further time is required for the Bill and is not otherwise available, it would be available if the Government were to abandon the ridiculous plans to bring back the Bill of Rights Bill, which the Lord Chancellor appears keen on?

[Lord Parkinson of Whitley Bay (Con)]

I will pass the noble Lord’s message on to business managers, but he will understand that it is not for me to respond.

Football: Casey Review

Lord Pannick Excerpts

Monday 6th December 2021 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is right that what should have been a happy and important day was marred, both by the racist abuse that we saw of some of the England players afterwards and by the disorder that the noble Baroness’s report addresses. In both of those instances, action has been taken to follow up. As noble Lords alluded to, the Government have set out that we will amend legislation to extend the use of football banning orders. However, legislation on its own is not the answer to disorder. That is why we will keep the legislation under review, but we will also be working with the football authorities and others to ensure that the minority of people who spoil days such as 11 July for the majority cannot do so.

[Lord Pannick (CB)]

My Lords, the Minister rightly referred to criminal behaviour. There is a mass of photographic evidence showing unmasked individuals behaving criminally. Can the Minister tell the House how many people have been charged with criminal offences, how many people have been convicted and what sentences have been imposed?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I do not have those figures. However, as the noble Lord points out, where there is CCTV footage and with the further evidence gathered by the noble Baroness in her report, it is obviously for the prosecuting authorities—rightly separate from Government—to look at that and take the decisions they feel are appropriate.

Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019

Lord Pannick Excerpts

Thursday 7th February 2019 Lords Chamber

[Baroness Neville-Rolfe (Con)]

Unfortunately we do not have a satisfactory or agreed Brexit deal and we need a no-deal SI here and indeed in a number of other areas, so I support the Government on that. However, I would like to pick up a point made by the noble Lord, Lord Foster, on roaming, which I understand is broader than this SI. If this is to be a commercial decision in future for the mobile operators in the event of no deal, as we heard earlier, can the Government seek voluntary assurances from them that they will continue to incorporate overseas calls and internet access into their contracts? I have that facility from Three and it includes the EU and indeed the US, and I do not think the company is planning to change that. However, in addition to the consumer triggers that are being introduced and the very good provision on inadvertent Republic of Ireland roaming, I think Ofcom could require the operators to make a clear statement of their intentions in this area on such calls in the EU, and I think it should look at the ability of consumers to switch from deals that turn out to be bad as a result of the change.

[Lord Pannick (CB)]

My Lords, I support the noble Lord, Lord Foster, in the concerns that he has raised. It is not just the Minister in the other place who says it is important for Ofcom to benefit from the continuing exchange of best regulatory practice; it is in paragraph 7.35 of the Explanatory Memorandum:

“However, the Government recognises that Ofcom would benefit from the continued exchange of regulatory best practice with other national regulatory authorities and the exchange of information about electronic communications matters more generally”.


The memorandum goes on at paragraph 7.36 to note that,

“the BEREC Regulation presently allows BEREC to invite observers to attend its meetings, and that the new BEREC Regulation is expected to provide that the Board of Regulators, the working groups and the Management Board should be open to the participation of regulatory authorities of third countries”—

which of course would include us in the event of no deal—

“where those countries have entered into agreements with the EU to that effect”.

My question is therefore about whether it is the intention of the Government that, in the event of no deal, Ofcom should urgently seek from other EU states an agreement that will allow Ofcom to have such observer status so that Ofcom can benefit from the continuing exchange of best regulatory practice, and indeed the regulators at BEREC can benefit from Ofcom’s expertise.

[Lord Foster of Bath]

Does the noble Lord agree that if he wishes to achieve that which he seeks—I entirely agree with him—there will have to be a change to Article 128 of the withdrawal agreement? That article specifically says that any invitation to attend will be exceptional and only in specific circumstances—namely, as it says in paragraph 5(a) and (b), that,

“the discussion concerns individual acts”,

or individuals within the UK, or, and this is critical,

“the presence of the United Kingdom is necessary and in the interest of the Union”,

and so on. So it is very clear that even if we sought that invitation to attend, it would be in limited circumstances unless changes are made to Article 128.

[Lord Pannick]

I share the noble Lord’s concern. It is all very puzzling. That agreement is of course a premise that contradicts the premise of these regulations. As the noble Lord says, these regulations are entirely on the premise that there is no agreement. What is puzzling is that if there is an agreement, the circumstances in which Ofcom would be able to participate in BEREC appear to be very restrictive indeed. There is therefore real concern that, in the event of no agreement, it might be said by BEREC that the circumstances in which Ofcom could participate could not be greater than the circumstances if there were an agreement. That is why I ask the Minister to confirm that it is the Government’s intention that Ofcom should be able to participate, which is obviously sensible and desirable for everybody. Has there been any discussion with our European colleagues on whether that can and will be secured in the event of no deal?

[Lord Ashton of Hyde]

My Lords, I thank noble Lords for their questions and comments. If I may, I will restrict myself to the matters which pertain to this SI which, as the noble Lord, Lord Pannick, has just outlined, is a no-deal SI. I thank noble Lords, especially the noble Lord, Lord Griffiths, and my noble friend Lady Neville-Rolfe for their comments—I omitted to thank my noble friend for supporting me last night and I am glad she is doing so again, despite that.

It is worth touching briefly on the issue raised by the noble Lord, Lord Foster. He said in Grand Committee that he expected to raise this again, so I thank him for that warning. He has quoted me a number of times, referring to what I and my honourable friend the Minister have said, and alluded that there was a problem between us. There is not. He neglected to mention that in Grand Committee, I also said that Ofcom,

“does not have the right to do these things”.

We were talking about membership of BEREC and attending meetings. I continued:

“That is not surprising, because we are leaving the EU. Why should it have the right?”—[Official Report, 23/1/19; col. GC 97.]


I made the point that as we leave the EU, there is no right to do that. However, that does not mean that we would not wish to pursue this, so let me address the points the noble Lord made about the potential difficulties.

The main purpose of BEREC is to ensure the consistent implementation of the EU regulatory framework. That is significant, not least in influencing the development of EU soft law. On the UK’s position, it is true that Ofcom has been a member of BEREC since 2010, and has been actively involved in that time. It is a well-respected, national regulatory authority. As I said, on leaving the EU—which is what we are dealing with here—it will not be possible for Ofcom to retain its membership automatically. That is right, as we will not participate in the EU regulatory framework. In the event of no deal, Ofcom’s ability to participate will be governed by the BEREC regulations themselves, as the noble Lord, Lord Foster, said.

The new BEREC regulation provides that BEREC should be open to the participation of regulatory authorities from third countries, where those countries have entered into agreements with the EU to that effect. There has to be a bilateral agreement, as I said, but that agreement need concern only the observer status of BEREC; it does not have to be a future economic framework, or a data adequacy agreement. The noble Lords, Lord Pannick and Lord Foster, asked whether we have done anything to ensure that. They also asked about our future intentions on trying to become an observer of BEREC. We are doing what Switzerland, which is in a similar position to us, is doing. Ofcom has already had conversations with BEREC; it is keen to have observer status and the Government encourage that. We will have to see how that develops.

The questions the noble Lord, Lord Foster, raised about Article 128 of the withdrawal agreement do not pertain to this. However, if they do, that will be in the context of a deal and that is the best way of encouraging co-operation. We want to get a deal and I hope that we do. The Government encourage Ofcom in its attempt to be an observer. As I said in Grand Committee, we think it would be of mutual benefit and that it would be of benefit to BEREC, apart from anything else; we encourage Ofcom in its endeavours.

Motion agreed.

Broadcasting (Amendment) (EU Exit) Regulations 2019

Lord Pannick Excerpts

Wednesday 6th February 2019 Lords Chamber

[Lord Liddle (Lab)]

My Lords, I support that excellent speech from the noble Lord, Lord Foster of Bath. It was extremely well argued and well researched and brought out a series of very real concerns. I have sat patiently through these discussions. We are seeing how Brexit will potentially destroy some of the jewels in the crown of Britain’s industrial and economic capacity. There is no more striking case of this than in broadcasting, which is one of Britain’s great success stories.

My experience of this is as a member of your Lordships’ Internal Market Sub-Committee of the European Union Select Committee, which did a thorough report on non-financial services and took evidence from broadcasters. At the time I was really shocked by the concerns expressed about the viability of their activities in this country. There is no doubt, whether to a greater or lesser extent, that what we are talking about will destroy opportunities for hundreds of young people who would otherwise have the chance of really fulfilling jobs in the media and broadcasting sectors.

No one I recall coming across in this field believes that the European convention is a full substitute for the EU directive. I would like to hear on what basis the Minister thinks it is. It clearly is deficient in that it is not comprehensive and does not have any means of enforcement through the Commission and the court. The fact is our industry is showing that it has no confidence in this poor substitute by the fact so many companies are relocating to the continent.

One thing about the statutory instrument really worries me. What we are doing with it—I can see why from the point of view domestic regulation—is saying that from now on we will no longer have the country of origin principle, but the country of destination principle. That will be used against us by commercial interests on the continent that want to prevent full UK access to the market. They will say, “You want to switch to a country of destination arrangement. That means we insist on the right to regulate your right to broadcast in our country”. This is very bad news for the British entertainment and broadcasting sectors. The Minister has many difficult questions to answer.

[Lord Pannick (CB)]

My Lords, I share the concerns so powerfully expressed by the noble Lord, Lord Foster. His speech demonstrates that these regulations, like so many of the exit regulations we are debating, raise fundamental policy questions. They are being presented under Section 8 of the withdrawal Act and other powers as merely transitional provisions designed to tidy up loopholes, but they are not. They raise fundamental issues of policy.

I have a specific question for the Minister concerning those broadcasters based in EU states that are not parties to the Council of Europe’s European Convention on Transfrontier Television. As the Minister and the noble Lord, Lord Foster, have explained, there is currently no need for Ofcom to license them because they are based in another EU state. As I understand these regulations, and the Minister will correct me if I am wrong, broadcasters based in non-convention states, including Belgium, the Netherlands, Luxembourg, Ireland—apart from for Irish-language programmes—Sweden and Denmark will now need to be licensed by Ofcom. Is it right that they will have to apply for a licence on 30 March or before then, or will there be a transitional provision by which they will be granted one automatically by reason of the fact they were previously covered by the EU directive?

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the Minister for introducing the instrument before the House this evening. I should declare my interest: I was the Shadow Minister in the other place for the Conservatives when the Ofcom Bill was taken through. I was an adviser to the Conservatives on the committee that covered film policy, and also devised a film policy for the Conservative Party that did not go very far but concluded that it was in their most favoured interest to have a tax break. I have been a beneficiary as a modest investor in films of which I am very proud—not many have been released in the cinema, but they have been broadcast.

The noble Lord, Lord Pannick, asked the very same question on procedure that I would have asked, but I have a very specific question for the Minister that I hope is relevant to this directive. Broadcasters and film producers have benefited from a very specific budget line, which is a legal instrument empowering finances for co-productions throughout the European Union, from which British producers and others have benefited. A number of Danish and Swedish co-productions have been shown on British television, which have been of huge interest to viewers in this country. Going forward, will we benefit from that budget line to the same extent and will co-productions still be viewed as a positive development? It will be of great interest, I am sure, to the film and broadcasting industry to know if that is the case.

--- Later in debate ---

[Lord Ashton of Hyde]

I cannot always keep up with the noble Lord, but I will try. I am very grateful, as I said in our last outing, for his interest in DCMS matters, which is fairly new.

I shall start in a fairly random order with answers to some quick questions before we get on to some of the points that the noble Lord, Lord Foster, made. The noble Lord, Lord Pannick, asked whether non-ECTT EU countries would be required, therefore, to be licensed in this country. The answer is yes: we have identified 50 to 60 channels which may need a licence from Ofcom in order to continue to be received in the UK. These are mainly specialist minority channels, religious channels and adult services.

[Lord Pannick]

May I ask a question in relation to that? Would it not be more sensible, given that these broadcasters have been broadcasting into this country already and have been licensed in an EU member state, to grant them a licence automatically, rather than their having to apply? Then, of course, Ofcom would regulate them thereafter. If there is a problem, Ofcom may impose conditions or sanctions on them.

[Lord Ashton of Hyde]

If I am allowed to continue, those services that now need to apply for a licence so that they can continue to be available to UK audiences will have a grace period of six months, so they will continue to broadcast into this country. They will have six months to apply for a licence. It is necessary for them to apply for a licence because they should still be regulated by Ofcom in this country; otherwise we cannot control what they produce because we will not have recourse to the EU dispute resolution services. Of course, the six months is not a difficult problem for them because they start on the same basis—today, they are regulated by the AVMSD. We will start on an equal footing for Ofcom to begin to regulate them after the grace period of six months.

[Lord Pannick]

I am grateful to the Minister, but that does not address my point. Why should these broadcasters, who are already broadcasting into this country with, presumably, no difficulty at all, have to go through the administratively burdensome task of applying for a licence after six months? Why should Ofcom have to consider the details of their case and grant them a licence? Would it not be more sensible to say, “Let us continue the status quo, let us deem them to have a licence and, thereafter, Ofcom can regulate them”? Why a new licence? That is my question.

[Lord Ashton of Hyde]

Effectively, that is what is happening after six months. They are being allowed to continue for six months, after which they will have to have a licence. The reason Ofcom is licensing them is so that, in the future, we can make sure that the content they produce is in accordance with the licensing conditions, which we would not be able to do if we were relying only on the AVMSD.

The noble Lord, Lord Puttnam, asked about the Ofcom response and whether there was anything positive or negative. First, there was not a response per se, so it was not asked that question. It was, of course, consulted and the basis of this SI—here I have to disagree with the noble Lord, Lord Pannick—is not trying to create new policy, because all it is trying to allow is for television channels that would otherwise not be regulated to be regulated, because the method by which Ofcom regulates channels is using the AVMSD, and that will not apply any more. Where the noble Lord, Lord Puttnam, is correct is that he gets to the crux of the problem, which is that leaving the EU is the issue that may or may not create a problem for broadcasters, not the actual details of this SI.

The noble Baroness, Lady Crawley, asked what advice I would give broadcasters. My advice to them would be to read the technical notice that we published in September: it precisely answers the question of what they should do and gives such things as the order of priority for being recognised in EU countries, whether it is establishment criteria or technical criteria such as satellite uplink. That is explained there and it makes the point, which I shall come to later, that ECTT may not be the answer in every case and that they should take advice and will possibly be required to have a licence. I shall come to that in a minute. I was foolish to think this would be quick.

The noble Lord, Lord Foster, mentioned video on demand. It is true that one of the differences is that the ECTT does not cover video on demand because, as noble Lords mentioned, it is a relatively old convention. I have to echo my friend in the other place: we are aware of the need to consider a long-term approach to regulating those video on-demand services that are available in the UK, but we cannot do it in this statutory instrument. It would be new policy, to take the point of the noble Lord, Lord Pannick, if we started regulating video on demand. There are some video on-demand channels today, for example, that come from America and are unregulated. We accept that it is a problem and we will have to deal with it in the future, but not through this SI.

The noble Lord, Lord Foster, and my noble friend Lady McIntosh talked about support for the sector: I think they were talking about the creative industries in general rather than just broadcasting. There is no change in the direct impact on such things as creative sector tax relief, which will still apply because they are established in UK legislation and the cost is entirely borne by the UK Exchequer. We have provided reassurance that the Government will underwrite the payments of awards for programmes such as Creative Europe, and have entered into a number of bilateral film and television co-production agreements with other countries, including Canada, Australia and China. I think my noble friend was talking about co-production in particular. We are also party to the Council of Europe’s Convention on Cinematographic Co-production, which will continue to operate after exit. There is a new version of that convention which we are intending to sign.

Lastly, and very importantly, this SI means that, by implementing the ECTT, UK content will continue to qualify as European works. The EU Commission has confirmed that will be true, even if we leave with no deal.

Brexit: Media Hubs

Lord Pannick Excerpts

Monday 9th July 2018 Lords Chamber

[Lord Ashton of Hyde]

It is a good thing that the noble Lord is not in charge of our negotiations if he goes in with that attitude. As I tried to point out, there are good reasons for us to continue with a bespoke deal that is to our mutual advantage. I pointed out the fact that our regulation is widely supported around the EU. He asked for certainty; of course there is not 100% certainty, but you never go into a negotiation with that. As we have said, we are preparing a contingency position, just in case the country of origin principle or equivalent is not negotiated.

[Lord Pannick (CB)]

Does the Minister agree that an effective relationship with the EU in the broadcasting context, as in so many other contexts, will in practice depend on this country accepting the judgments of the European Court of Justice?

[Lord Ashton of Hyde]

I am not sure I accept that. The principle we have in broadcasting is that there is a licensing arrangement: if we are licensed in this country, other countries are prepared to accept that. We delegate that to an independent organisation, Ofcom. I hate to disagree on matters of law with the noble Lord, but I am not sure that that applies. However, of course I will look at what he said, because he knows more about the law than I do.

Data Protection Bill [HL]

Lord Pannick Excerpts

Monday 14th May 2018 Lords Chamber

[Baroness Cavendish of Little Venice (Non-Afl)]

My Lords, I have one question that builds on the point made by the noble Lord, Lord Stevenson. I note that the Minister said that organisations that refuse to hand over information will be in contempt of court. Can he confirm whether there will be a public interest defence built into these provisions?

[Lord Pannick (CB)]

Building on the point about the limited time for scrutiny here, can the Minister also explain whether there is a protection for the sources of journalism, with no obligation to disclose sources? Is there a protection for legal professional privilege and matters of that sort?

[Lord Ashton of Hyde]

I am grateful for the contributions made by noble Lords. The first thing to acknowledge is that these amendments were made at a reasonably late stage in the Bill but not a very late stage, in the sense that it was in the second House. We considered the Bill first and the second House amended the Information Commissioner’s powers, so we are now looking at them again. However, I can confirm to the noble Lord, Lord Stevenson, that the Information Commissioner was involved in these powers. That is not to say that, in the course of those discussions, she did not put up some powers that she might like to have but, in discussion with the Government, we settled on some powers that she was content with. I can confirm that she is content with this suite of powers; in fact, she has written to the Minister for Digital confirming as such.

The noble Lord, Lord Clement-Jones, mentioned a dawn raid and asked whether we can do that and, further, whether these powers are on all fours with the Competition and Markets Authority and Ofcom. By and large the powers are on all fours but, as the noble Lord, Lord Stevenson, said, they are not exactly the same. They were modelled on them but they are slightly different, given the different roles and functions that regulators have. As for a dawn raid, the Information Commissioner has the power to ask for a warrant to be issued without notice if the judge is satisfied that giving the controller advance notice would not be appropriate. As I say, we looked closely at the powers of the CMA and Ofcom and modelled them as closely as possible.

The noble Lord, Lord Pannick, asked about protection for journalists’ sources. I can confirm that, yes, the new ICO powers continue to respect the need to protect journalistic sources and legal professional privilege.

The noble Lord, Lord Stevenson, also talked about the Information Commissioner’s resources. As he knows, we have increased the fees and made a commitment in the past that we will make sure that the Information Commissioner has the resources available to do her job properly. We understand the issues that that involves. We need the Information Commissioner to do a proper job and to be able to do so, not least because of the Brexit negotiations and the data adequacy requirements that we will want to continue for electronic commerce.

I think I have dealt with the points raised and, on that basis, I thank noble Lords for their support for these powers.

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[Earl Attlee (Con)]

My Lords, it has been a long and hard struggle to attempt to convince the Government to meet their commitments to complete the Leveson reforms and, most importantly, complete part 2 of the Leveson inquiry. During earlier debates, I claimed not to know any celebrities who were not politicians. I apologise to the House because I should have inserted the caveat, “other than a world-famous international yachtsman”.

I agree with my noble and learned friend the Minister that we should accept the Commons rejection of my Amendment 147, which sought in effect to commence Section 40 of the Crime and Courts Act 2013 in respect of data protection. I shall try to explain why in a moment, but it has nothing to do with the merits.

First, I would like unreservedly to support the noble Baroness, Lady Hollins, and her new amendment which seeks to commence the Leveson 2 inquiry. I agree with everything she has said, and I hope that she will seek the opinion of the House. If she does, I will be supporting her in the Lobby.

I am bound to say that the print media have consistently misrepresented the issues in question. For instance, it has been said that the noble Baroness and I hijacked this Bill to pursue our amendments. It is actually fair comment, but as any noble Lord who has been in opposition knows, it is a perfectly proper standard parliamentary procedure, and I am sure that my noble friend the Government Chief Whip has himself used this technique many times when he was in opposition.

It was also alleged that we cynically excluded politicians from the scope of the inquiry. This is simply not true. We did try to table an amendment that sought much wider terms of reference for the inquiry. Quite properly, the clerks advised us that we needed to restrict the scope of the amendment to data protection issues. It would, of course, be open to the Government to set wider terms to include politicians, and if a Conservative politician is alleged to have done something wrong, I am happy to see them explain themselves to the inquiry.

I turn to my amendments. When my noble and learned friend comes to reply, while he has explained the stick component of Section 40, will he remind the House of how its carrot component works, because I do not think that he mentioned it?

Although the Commons never actually divided on my amendments, they were fully debated and it is clear to me that there is no realistic prospect of the Commons changing their mind. There is no Salisbury problem with the amendment tabled by the noble Baroness, Lady Hollins, because she genuinely believes that if we send it to the Commons, we may get a different answer. However, I would suggest that this will probably be the last roll of the dice.

I feel bound to comment on the exceptionally effective campaign run, presumably, by the News Media Association. Whoever is running it knows what they are doing, although we have all been playing hardball. However, what is disturbing is that I have been silenced and skilfully suppressed nearly everywhere except in your Lordships’ Chamber, and therefore I am extremely grateful to the BBC programme, “The Big Questions”, for allowing me to contribute to yesterday’s debate. It is not clear to me why the Convenor of the Cross Bench Peers politely declined my offer to address the Peers on my amendment but nevertheless later allowed Sir Alan Moses, the chairman of IPSO, to address the Cross-Bench Peers. In the days immediately after our votes on Report, despite one national newspaper devoting three whole pages to criticising some noble Lords, my name was mentioned only once in any national newspaper, and I suspect that that was an accident. It is good that the press is supposed to be biased, opinionated and partisan.

Despite trying very hard, I was able to secure only two meetings to discuss the Leveson amendments with two Conservative MPs, and they had very good reasons to do so but nevertheless, quite understandably, they voted with the Government. Even the Leader of your Lordships’ House declined to have a meeting with me in the week preceding the vote in the Commons to discuss these problems—so much for free speech. The very same honourable Members who declined to meet me had helped to produce a majority of 530 to 13 in the vote to insert new Section 40 in the Crime and Courts Act 2013. What is going on?

I welcome the Government’s Cairncross review into the sustainability of the press. This is one of the Government’s arguments for not implementing Leveson. When I talked to my local editor, he was not worried about regulation; his problem was sustainability.

Recently, in accordance with the principal VAT directive, the appropriate tribunal decided that online publications would attract VAT at the standard rate. This is a tax on information and knowledge, when books and publications are exempt. The EU withdrawal Bill has enough difficulties without me raising another one, and I do not want to tie the Minister’s hands, but can my noble and learned friend write to me—and perhaps to my noble friend Lord Black—to assure us that the appropriate officials are aware of the risk of negotiating away our freedom to zero-rate online publications post Brexit?

Much of the debate on Section 40 has centred on state regulation of the press. At the moment, unfortunately, we have covert state regulation because anyone in government, particularly sources close to No. 10, can suggest to the media that Ministers are reconsidering commencing Section 40. This is a completely unacceptable gun, held to the press’s head, which must be deactivated at the earliest possible moment. Worse still, it could inadvertently lead to the press self-censoring in the case of a story that might, in any case, make for difficult ethical and legal decisions for the editor concerned. Can the Minister indicate when this very short Section 40 repeal Bill will be presented to Parliament?

If we are not to implement the Leveson press reforms, we need to commence part 2 of the inquiry to find out what has gone wrong in the past, ensure that it is not continuing and prevent it from recurring. As one of our briefings today put it, the past is a prologue for the future.

[Lord Pannick]

My Lords, I declare an interest as one of the few counsel who has acted in privacy cases for both the Daily Mail and Mr Max Mosley. I cannot support the amendment in the name of the noble Baroness, Lady Hollins. I remind your Lordships of what the Conservative Party manifesto said before the election last year:

“Given the comprehensive nature of the first stage of the Leveson Inquiry and given the lengthy investigations by the police and Crown Prosecution Service into alleged wrongdoing, we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press”.


As your Lordships know, the Commons held a lengthy debate on this subject last Wednesday and voted not to institute a Leveson part 2. Your Lordships’ House has heard the pro and con arguments on many occasions.

I want simply to emphasise two points. Amendment 109 introduces extensive new powers on the Information Commissioner in relation to the press and, as the Minister has already indicated, it requires the commissioner to conduct a review of the press in the short term. Also, over the years, there have been not just police, and other, inquiries: a large number of civil actions—cases against the press—have been brought by phone-hacking victims. Those victims have not gone without remedy; they have received very substantial financial compensation, and rightly so. It is true that some of the claimants were celebrities, but many were not; they were victims of phone hacking because, for example, they were related to television actors or spent the night with a footballer. Reprehensibly, the press hacked their phones. They brought legal actions; the lawyers acted on a conditional fee basis. After the event, insurance ensured that there was no financial risk to the claimant, so it is simply not the case that victims of phone hacking lack, and have lacked, legal remedy. Newspapers have rightly been ordered to pay substantial sums by way of compensation. It is simply unrealistic to think, in the light of the criminal prosecutions and civil liability, that the message has not got across. I respect, of course, the views of the noble Baroness, Lady Hollins, the noble Earl, Lord Attlee, and the others who support this amendment, but it really is time for this House to give way to the views of the Commons on this matter.

[Lord Cormack (Con)]

My Lords, I support what the noble Lord, Lord Pannick, has just said. I also have the utmost respect for the noble Baroness, Lady Hollins. She has shown that she is a doughty campaigner; she passionately believes in her cause, and she has every right so to do.

I want to dwell on just one aspect: the relationship between the two Houses of Parliament. I hope that I have shown that I am not afraid to vote against the government line; I have done so frequently recently and I do not regret it, because I have done what I thought was right.

When we take such a line, we ask the other place to think again. However much the noble Baroness, Lady Hollins, may regret it, the other place has thought again. This is not the moment to introduce new amendments—to protract the ping-pong by bringing in a new ball. With proper deference to the elected House, we have to accept the line that it has taken. There are of course other arguments that one could deploy—it has been said that this is not the right Bill and all the rest of it—but the matter has gone to the other place; it has made its decision. We would be overemphasising our constitutional legitimacy if we sought to reject what it has said.

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[Baroness Neville-Jones (Con)]

My Lords, I thank my noble friend the Minister for the Government having carried these provisions in the Commons. More importantly, the patient support groups for which I spoke are very gratified because they regard these amendments as absolutely vital to their ability to carry on their important work. If I might say so, it is a very satisfactory outcome.

[Lord Pannick]

My Lords, I welcome Commons Amendment 188 on the confidentiality of legal advice. As the Minister knows, a concern has been raised, long after the 11th hour, about the position of arbitrators. The concern is that the Bill addresses the data protection obligations of judges and lawyers but does not address the data protection position of arbitrators. Arbitration is of course an important legal service, in which this country leads and provides services to the world. All I can do at this stage is to ask the Minister and the Bill team whether they will reflect on this concern, which has been raised not just with me but with him. If he thinks that there is any basis for concern, will he consider using the very extensive powers conferred under the Bill to bring forward regulations to address the issue?

[Lord Clement-Jones]

My Lords, as the Minister made clear in his lucid introduction, this is a really significant group of amendments. It is very good to see that some of the work that was done in this House has come back in the form of amendments. In particular, the Minister will remember that it was my noble friend Lord McNally who raised issues around Thomson Reuters in the first place. However, I know that there will be considerable pleasure in the financial services industry, which is very concerned about such things as money laundering, anti-corruption measures and so on, and making sure that it can process data in pursuance of achieving those important goals.

I congratulate the noble Baroness, Lady Neville-Jones, on her campaign, which has clearly borne fruit here. I had not heard what the noble Lord, Lord Pannick, had said but there seems to be a bit of a hole in the Bill if that is the case. I can certainly testify to the fact that arbitrators are an incredibly important part of our judicial system. Indeed, within it they are one of our global competitive advantages; therefore if anything is done that is to the detriment of our arbitration system, it would be really quite serious.

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[Lord Ashton of Hyde]

I am grateful to the noble Lord. That brings me nicely to the point made by the noble Lord, Lord Pannick, about arbitrators. The noble Lords, Lord Clement-Jones and Lord Stevenson, mentioned the importance of arbitration to the economy of this country. I am only too well aware of it from my background in insurance. London has a very well-respected legal system, but the arbitration system is linked to that. We certainly would not wish in any way to hinder it. Contrary to what the noble Lord, Lord McNally, did, the people who brought this up seemed to do so at the last minute. I slightly wonder how they managed to miss this trick, if it is so obvious, for the two years that the GDPR has been in place, let alone—

[Lord Pannick]

Could I suggest to the noble Lord that they were too busy arbitrating?

[Lord Ashton of Hyde]

They should have hired a lawyer. The point is that it is a perfectly valid point. We have sought to replicate in the Bill, as far as possible, the existing provisions relating to legal professional privilege. We had several discussions about that in the 1998 Act, including the relevant exemptions to rights and obligations for personal data. I cannot help but notice that the Arbitration and Mediation Service, given that we are trying to replicate as far as possible existing provisions, appears to have been operating without undue burden for the last 20 years, but I am certainly prepared to undertake to the noble Lord, Lord Pannick, that we will look at that with a view to making sure that this is not a serious problem. We certainly have not been able to do it in time. I can confirm to him that, if there is a problem, the Bill contains regulation-making powers to address this concern. The only thing I can say on that is that, quite rightly, those regulations would have to come before both Houses of Parliament. If there is a concern he will be able to address it later.

The noble Lord, Lord Stevenson, is quite correct that we talked about me making a statement or addressing concerns about the individual application of the GDPR and the Bill to Peers. I assumed I would do so if it was necessary and if the subject came up, which, luckily, it has not. Just to be clear, it is not just that Peers and other citizens of this country are suffering under the GDPR, although they might have obligations that they were not aware of before and, I agree, certain extra ones because the GDPR has direct effect; it also greatly increases individual subject rights. It makes sure that individuals’ personal data, in particular sensitive personal data, is better protected in law and by a regulator, who, thanks to your Lordships’ agreement, has real power to make sure that the data regime is obeyed. I believe that the House authorities have issued a statement to all Peers. Of course, my department is there to address this. The first avenue that Peers should use for the individual circumstances is the House authorities.

Data Protection Bill [HL]

Lord Pannick Excerpts

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

[Earl Attlee]

There is a simple answer to that—the noble Lord should test that in the courts and test it in Europe.

[Lord Pannick (CB)]

My Lords, I am very grateful to the noble Earl for mentioning one of the many cases over the years in press law that I have lost. I mention to noble Lords another of those cases, in the Court of Appeal in 2015, when I represented entirely unsuccessfully Mirror Group Newspapers, which sought to overturn the very substantial damages that had been awarded to individuals, some of them famous and some of them not, whose mobile phones had been hacked by journalists and whose data had been used to write articles breaching their privacy. A woman who had had a relationship with an England footballer was awarded damages of £72,500. An actress who appeared in “EastEnders” was awarded £157,000 in damages—and so on.

The reason why the courts awarded damages of that extraordinary magnitude, far more than you would get if someone deliberately ran you down and severely damaged your health, was precisely because of the factors that the noble Baroness, Lady Hollins, mentioned in opening this debate. It is about the personal nature of the intrusion and the suspicions that are engendered as to how the press obtained this information. Was it from friends or relatives who had betrayed you? It is about the very real impact that this has on your personal behaviour; it inhibits, inevitably, the communication that you have with friends and relatives. The claimants in these cases were represented by expert solicitors and by a counsel acting on a conditional fee basis, which meant that, when they won the case, MGN had to pay substantially increased costs, as well as insurance premiums. The costs—because the case related to dozens of claimants—were in the millions of pounds. Similar claims have been brought against other newspaper groups, and the noble Baroness, Lady Hollins, mentioned in her opening remarks that further proceedings are imminent.

I mention all this to emphasise that, when newspapers breach data protection laws, as they have, they have paid for it, and rightly so. Nobody who knows anything about what used to be called Fleet Street could seriously doubt that journalists and editors now take data protection seriously. They would be mad not to do so. In the past few years, editors and journalists have gone to prison for criminal offences related to breaches of data protection. Editors and journalists have lost their jobs in relation to such matters. A prominent newspaper, the News of the World, was closed down. Newspaper groups have paid tens of millions of pounds—perhaps more—in damages and costs. This Bill will create a powerful new administrative machinery to enforce data protection law. All that is rightly so, and I complain about none of it; it is absolutely right that the rule of law applies.

The question is whether we really need a public inquiry on this subject, which will take years to report and cost a fortune to the public purse, occupying the time of busy people who can productively be engaged on other matters. I say to the House that we do not need an inquiry to establish what happened in the past—any number of trials, criminal and civil, have examined the facts, sordid as they are—and we do not need a public inquiry to ensure higher standards of conduct in the future. An inquiry in the terms set out in the amendment of the noble Baroness, Lady Hollins, would be so broad in nature that it would impede the ability of editors and journalists to get on with the vital work of holding government and powerful private individuals and companies to account.

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[Lord Falconer of Thoroton]

This is the crux of the position. Now that it seems to be accepted that things are not okay, if that is the case, what is required is an inquiry. As I understand what is being asserted, a change is proposed in the form of Section 40 and there are those who say that we should not make a change. I think that it is important not to be taken in by the siren song that everything is okay.

It is important that there should be a second inquiry. We promised it and we should not break that promise. I also think it would be wrong to suggest that Sir Brian Leveson is against a second inquiry. I do not know what his position is, but we should not assume that he is either in favour or against it; his views need to be canvassed. I strongly support the amendment tabled by the noble Baroness, Lady Hollins.

[Lord Pannick]

I am not suggesting that breaches do not occur; I am not an apologist. My position is that if and when errors are made and wrongful acts occur, the law has ample means of dealing with them. We do not set up a massive public inquiry in areas of the law or practice whenever there is a risk that wrongful acts are going to take place. My position is that we have inquired sufficiently into these matters, and to the extent that there are still wrongful things going on, the law provides perfectly adequate remedies, and indeed under this Act there will be perfectly adequate administrative procedures.