Investigatory Powers Bill

Baroness Hollins Excerpts

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.