Crime and Courts Bill [HL]

Debate between Lord Skidelsky and Lord Soley

Monday 25th March 2013 Lords Chamber

[Lord Soley]

My Lords, I shall address this matter fairly briefly. I congratulate the Government on having moved as they have, and the noble Lord on his opening comments.

I want to make two points, but they are quite important ones. What is welcome and what we need to remember when we discuss these issues is that there is a world of difference between an individual who might say something factually incorrect and even insulting as an individual and a very large-scale international organisation such as News International doing the same thing. That is really where this problem has come from. People reacted to Leveson from the press side by saying that it was an attack on 300 years of press freedom, but that is nonsense. Press freedom was about small individuals and small groups fighting for the right to publish their views, and that remained the case until quite late in the 19th century, when the press barons emerged and these large-scale and powerful organisations developed. That is when it became difficult, because you could no longer feel the same about an attack by an organisation such as News International that was factually incorrect and severely intrusive, and that of an individual. That sort of balance needs to be kept in mind.

When I listened to the Minister’s opening comments, I felt that the Government were aware of the difference between the large and small organisation. But it is a problem for the small organisation. I started a blog in, I think, 2003, then came here and converted it to “Lord of the Blog”, and then it became “Lords of the Blog”, which is still operating, and is run by the Hansard Society on behalf of the House. I think that it is relevant—and this refers in a way to some of the comments of the noble Lord, Lord Lucas—and we need to be aware of the impact on charitable organisations and the smaller groups.

My second main point is that we need to review the legislation over a period of time. Part of the reason why we need to do that is the rapidly changing technology; it is so fast and so dramatic that it is difficult to keep up with it. I do not believe that all the press will suddenly go out of business because of the internet, but they are under more severe financial pressure because of it. Frankly, good newspapers are likely to survive—and likely to survive also because of their online material. We have to break away from the old culture whereby, if you felt that you could not publish a story, you got someone to put it on the internet and then, lo and behold, it suddenly appeared in News International newspapers, or wherever—and anyone could have put it on. It was easy to get round the rules.

As someone who set up those blogs, I would have welcomed at that time some sort of code that was external to what I was inventing myself. The noble Lord, Lord Lucas, said that you may be threatened by that. He may be right. I do not want to disagree with a great deal of what he said as I have a lot of sympathy with it, but I think he may be overafraid of this. When I started the blog in 2003, I was not concerned about individual attacks on me—any MP gets used to that fairly quickly and takes the rough with the smooth—but I was concerned about attacks on third parties or statements about third parties. We saw a dreadful example of that recently with the challenge to Lord McAlpine. In my view, none of this regulation threatens good investigative journalism. Indeed, I gather that the BBC programme tonight on Boris Johnson will be pretty critical and that is a regulated media outlet, so we should not be too concerned about this issue. However, vast changes are taking place.

To give another example, after the Iraq war, at the request of some Arabs in my then constituency, I set up the Arab-Jewish Forum, which was essentially a conference organising group, but I have recently converted it into a blog organisation for Arabs and Jews in this country, although, inevitably, it will go worldwide. In doing that, I am worried about regulations. A group of Arabs and Jews will regulate it. I will also keep a close eye on it although, as someone of neither Jewish nor Arab heritage, I will be less good at that than the moderating group. It would be good to have guidelines on what to do if something is factually incorrect. Although what we are discussing is not directly relevant to that issue, it underpins it and may indicate a way forward in dealing with the emerging internet communications, which will replace newspapers to a large extent, although not completely, in my view. We will then need constantly to review the legislation.

I carefully followed the speech of the noble Lord, Lord Lucas, in which he raised important issues, with which I have sympathy, and to which I wish to add two comments. First, an organisation may value being a member of a regulatory body as that gives you some guidance, even if it is not a complete code, and a structure within which to work. I ask the Minister to address my next point when he winds up. Secondly, it is very important that we develop a way to review this legislation over time given not just the complexity of setting up a regulatory body for the press for the first time but the fact that the technology is changing so fast it is very difficult to keep up with it.

[Lord Skidelsky]

My Lords, I would like to speak to Amendment 11B and a group of consequential and related amendments, and I am sorry not to have got to my feet quicker. These amendments seek to implement the Leveson report as Lord Justice Leveson provided for—no more and no less. I broadly welcome the Government’s Amendment 11 and the Minister’s explanation of it but would welcome assurance on a number of specific points.

There are three amendments on exemplary damages: Amendments 11C, which provides that the existing common law test does not apply in this case; Amendment 11D, which provides that vicarious liability should apply in this form of exemplary damages; and Amendment 13A, which provides that the court will have regard to the means of a defendant when making any award. It is very important that the law is clear that for exemplary damages to apply, the conduct does not have to be carried out with a view to a profit and with a deliberate disregard of an outrageous nature of the claimant’s rights; in other words, there are two alternative tests and not one. The Government’s amendment is unclear on that matter and I should like clarification on it.

Amendment 17E makes clear that to benefit from costs protection the publisher would have to participate in the self-regulator’s arbitration scheme. Amendment 17J provides that the current hold on the commencement of Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act in respect of publication proceedings will remain until a way forward is found. In relation to this, there will be cross-party talks in which Liberal Democrats and Conservatives will be able to take different positions. The reason for that is that Sections 44 and 46 of LASPO abolish the recoverability of success fees for the loser and would have disastrous effects on media claimants such as the Dowlers and the McCanns. I look forward to hearing from the Minister what the Government propose to do about the effective elimination of a success fee.

Two further amendments where assurances are sought are Amendments 19C and its consequential Amendment 19D, which concern the inclusion of data protection actions within the definition of publication proceedings. Amendment 19E provides that the Information Commissioner will take into account membership of an approved regulator when considering the exercise of his powers. In both these cases, we understand that the Minister will be bringing these back as part of the post-Leveson data protection consultation. We seek the assurance that decisions on this matter will be subject to cross-party talks in which Conservatives and Liberal Democrats will be able to take different positions.

Amendment 19B would require that the recognition panel which approves the self-regulator is subject to the Freedom of Information Act. No one would expect this body to act in secret. I seek an assurance from the Minister that the relevant special interests would be promulgated in good time for the start of its work.

Amendment 131A concerns relevant publishers which hold broadcasting licences. We seek assurance that this is not intended to cover the whole publishing activity of such licence holders but only their broadcasting activity. As regards Amendment 11B, which deals with the exemption from immunity of self-regulated newspapers to exemplary damages, I understand that a further amendment is to be agreed to this clause. Therefore, I need say nothing further about it and it can be considered in another place.

Amendments 17A, 17B and 17F would enable bloggers and small publishers who decide to join a self-regulator to obtain the costs protection that they deserve on the basis of it providing a low-cost arbitration service. I understand that this is the subject of continuing cross-party discussion and will also be dealt with in another place. Other noble Lords will have something to say on the position of bloggers and the need for small publishers to be excluded from the definition of relevant publishers. That has already been alluded to. I merely commend my two Amendments 18A and 18B as a contribution to the debate.