Investigatory Powers Bill

Baroness Hollins Excerpts

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

Moved by

[Baroness Hollins]

1: Clause 8, page 7, line 37, at end insert “, or
( ) in the course of its transmission by means of a public telecommunication system.”

[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.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that system. This was a necessary safeguard to protect individuals, in very limited circumstances, where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.

A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.

The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.

As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.

[Baroness Hollins]

My Lords, thank you for contributing to our understanding of this problem a little further. At no point has the House been told that the amendments are not in scope. In fact, it was suggested to me over the weekend by members of Her Majesty’s Government that I should seek instead to place such amendments within another Bill, such as the Digital Economy Bill. I sought advice from the Public Bill Office but, after considering the matter at length, it advised me that that was not possible and they would not be within the scope of the Digital Economy Bill.

If the House supports the amendment today, as I hope it will, I will be more than happy to work with the Government to find a wording which does no more than provide for as much of the Section 40 costs incentives as could be provided in the scope of the Bill without going any further. I would not be asking the House, in ping-pong, to do anything that destabilises anything else in the Bill. The best solution, of course, would be for the Government to commence Section 40, as they promised and as they should. Then, we could drop all the amendments. It is the Government’s choice and always has been.

On previous occasions when I have had drafting difficulties—and this is a complicated Bill—Ministers have been most helpful in achieving the intentions of your Lordships’ House. I wrote to the noble Earl, Lord Howe, asking whether there were any technical difficulties with the amendment, and the answer was no.

I am not content with the answer given by the noble and learned Lord, and I wish to seek the opinion of the House.