Investigatory Powers Bill

Baroness O'Neill of Bengarve Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I will speak to all the amendments in my name in this group. The main one, Amendment 18, which inserts a new clause, is slightly revised from the version that was debated in Committee on 11 July. The feeling of the House then was that this should be brought back on Report and it was clear that I would seek to test the opinion of the House if there had been no progress by this stage. I am grateful to the Minister for meeting me and other noble Lords, including some of those engaged in 2013 with the Enterprise and Regulatory Reform Bill, the Defamation Bill and the Crime and Courts Bill, to discuss this matter,

The amendments have two functions. First, Amendments 15 to 17 amend the statutory tort in Clause 8 for interception of communications previously available under Section 1(3) of RIPA by making it applicable for use by victims of phone hacking or email hacking undertaken by third parties such as newspapers. The primary purpose of Amendment 18 is to provide costs protection in court cases for claimants as well as for Leveson-regulated news publishers with respect to these claims. The protection intended is equivalent to that which would exist for such claims had the Government commenced Section 40 of the Crime and Courts Act 2013. There has been no explanation to Parliament as to why the former Culture Secretary announced last October at a meeting of newspaper editors that he was not minded to commence Section 40. That represents a change of government policy, which both breaks the cross-party agreement and betrays promises made to both Houses and to press abuse victims.

As very brief background, I remind noble Lords that after the Leveson inquiry, to which my family and I gave evidence, Sir Brian Leveson recommended that any new regulator set up by the press should be accredited as independent and effective by an independent recognition panel, which would be wholly separate from Parliament and the industry. This panel was to be set up by royal charter rather than by statute, essentially as a concession to the press. His recommendations also dealt with how to provide incentives for newspapers to join an accredited self-regulator, since it was clear that press owners would not volunteer for effective and independent regulation, and how to provide access to the courts for press victims facing a deep-pocketed defendant. The Government accepted those recommendations but have failed to implement them.

Section 40 of the Crime and Courts Act would deliver those incentives and that access to justice. It should have been commenced before the exemplary damages sections, which were commenced automatically a year ago. The intention of the signatories to this amendment is to persuade the Government to commence Section 40 of the 2013 Act and to do so without delay. Naturally, if the Minister can reassure the House that Section 40 will be commenced before Third Reading, the amendment will not be pressed. I beg to move.

[Baroness O'Neill of Bengarve (CB)]

My Lords, earlier this afternoon in Amendment 10, the House accepted the principle of protection for journalistic sources. That seems very important, for reasons which I will not spell out but are well known. My noble friend’s amendments, in particular Amendment 18, propose a modest measure to balance Amendment 10 and I will try to explain why I think some balancing is necessary.

Noble Lords will note, as my noble friend has set out, that Parliament has already agreed a more extensive way of balancing this privilege for journalists with a comparable restriction. It was in Section 40 of the Crime and Courts Act 2013 but that section—we must remember that the principle has received cross-party support—has not been commenced. I do not comment on the reasons. The amendment cannot entirely remedy that oversight but it can go some way to balance the additional powers and protection given to journalistic activity, in the clause that we agreed earlier this afternoon, by limiting the costs against their misuse—by the media, that is, which refuse to be audited by an approved regulator.

The point is fundamentally simple: protecting journalistic sources is a profoundly important liberal purpose but the misuse of those sources, whether by invention, illegal interception of private communication or forms of blackmail and the like is not a good liberal cause. I believe that we need to balance this additional protection for journalistic sources with additional protection for those who are abused by journalists—or those posing as journalists—and then claim that the source was only invented or misrepresented, or that the information was obtained by criminal means. Those positions need to be not protected but audited. The new clause would achieve most of that purpose. It cannot achieve it all but, like my noble friend, I look forward very much to hearing what the Minister can tell us about progress on the possible implementation of Section 40 of the Crime and Courts Act, which would render this move redundant.

Investigatory Powers Bill

Baroness O'Neill of Bengarve Excerpts

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

[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.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I support my noble friend’s amendment. The situation is complex and I think everybody concedes that the amendment as passed by your Lordships’ House last week had deficiencies. However, it was agreed by the Public Bill Office that it was adequate, as it has agreed that the amendment which is now before your Lordships is adequate. It seems to me that the ball is in the Government’s court to try to work out a way in which to achieve this. We must remember that in this Bill we have, for good reasons to do with press freedom, given the media very considerable additional protections for journalistic sources. That is open to possible abuse because sometimes there is no source or there might be, let us say, an incorrect reporting of a source. The quid pro quo for that is surely some protection for the public. Amendment 1 is not perfect, but if it is not to be accepted by the Government, I hope that the Minister will suggest how the Government propose to deal with the evident lacuna, and the risk to members of the public, of having greatly empowered media.

[Lord Low of Dalston (CB)]

My Lords, in considering this amendment we need to be mindful of lessons from history. We have heard the tale before that the press will reform itself. Some noble Lords will remember similar debates following the 1990 Calcutt inquiry. When asked to report on the efficacy of the PCC in 1993, Sir David Calcutt said that it was not doing its job and that the time for statutory regulation had come. But Parliament lost its nerve and the press was allowed to carry on underregulated, with disastrous consequences for ordinary people. Predictably, the newspapers are telling us that IPSO is a much improved version of the PCC, but it falls woefully short of the standards set out by Lord Justice Leveson.

Since we last voted, the Government’s position has actually hardened. When setting out the Government’s response to the amendment of the noble Baroness, Lady Hollins, in Committee, the noble Earl, Lord Howe, said:

“I fully understand that many noble Lords here, particularly those who have been victims of press abuse themselves, are frustrated as to what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report. I want to reassure noble Lords that that is not the case … the Government continue to look at this issue closely … this is something that the Government are actively considering. … The position is that, for the time being, Section 40 remains under consideration”.—[Official Report, 11/10/16; col. 1809.]

Last Monday, on 24 October, the Secretary of State said at the Culture Select Committee that she was not minded to commence Section 40. The Times the next day—last Tuesday, 25 October—ran a triumphant front-page story based on what it later said were reliable government sources. It said:

“Westminster sources revealed last night that the ‘punitive elements’ of Section 40 of the Crime and Courts Act …‘will not go ahead’. The change of tack, which avoids a clash between Theresa May and the media, came on the eve of a decision to approve a new regulatory body”.

The Government have not informed Parliament of this and have not sought to correct the story.