Leveson Inquiry

Lord Garnier Excerpts

Monday 3rd December 2012 Commons Chamber

[Maria Miller]

I will just finish my point, and then I will give way to a few of my hon. Friends who have been trying to catch my eye.

The police and crime commissioners took office on 22 November and the college of policing will come into being this week. The Independent Police Complaints Commission is being given new powers and Her Majesty’s inspectorate of constabulary has greater independence and a new non-police chief to head it. Increased transparency will support stronger systems for whistleblowing and both will contribute to a culture of openness and responsiveness, and will increase public confidence in the police. Those are all important actions that have already been taken. My right hon. Friend the Home Secretary will report to Parliament on all that in January.

[Sir Edward Garnier (Harborough) (Con)]

I thank my right hon. Friend for giving way so generously. It is becoming difficult to follow the thread of her argument. That is not her fault, because it has been interfered with by so many people seeking to intervene. I plead guilty to that myself.

Will my right hon. Friend confirm something that Lord Justice Leveson said on any number of occasions? I will quote paragraph 6.1 on page 1771:

“I will say again, because it cannot be said too often, that the ideal outcome from my perspective is a satisfactory self organised but independent regulatory body, established by the industry, that is able to secure the voluntary support and membership of the entire industry and thus able to command the support of the public.”

We are not talking about—and Lord Justice Leveson is not talking about—the statutory control of the press. Can we try to move away from the hyperbole that suggests that Lord Justice Leveson is demanding some form of Stalinist control of the press?

[Maria Miller]

I understand my hon. and learned Friend’s intervention, but I carefully draw his attention to the fact that the issue is about making the new system effective, and that is where the discussion lies. I gently remind him that what the Prime Minister set out last week was very clear: the Government absolutely agree with the principles in Lord Justice Leveson’s report, and we are looking at how they will work in practice.

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[Mr Whittingdale]

I think I have already dealt with that, but the right hon. Gentleman is right. Lord Hunt himself suggested that there should be some statutory recognition of the body in the context of, for instance, defamation cases, so that it can be taken into account when damages are awarded. However, that is not the same as setting up a body by statute, or statutory underpinning. It is all very well for the right hon. Gentleman to laugh, but there is a massive difference between the law recognising the existence of a body and the law somehow having power over that body.

[Sir Edward Garnier]

Does my hon. Friend agree that the hon. Member for Vauxhall (Kate Hoey) may have slightly misquoted Lord Justice Leveson—wholly unwittingly, I am sure? Lord Leveson identified the Daily Telegraph investigation of parliamentary expenses as an example of investigative journalism coming to the point, but surely the central fact is that there are aspects of privacy law that protect and enhance freedom of expression—for example, the right of journalists to protect their sources.

[Mr Whittingdale]

I have very little time left. I could probably spend another hour discussing the whole issue of privacy law, but I shall merely tell my hon. and learned Friend that I hear what he says.

I am absolutely at one with those in the Chamber who believe that we need to establish—

--- Later in debate ---

[Sir Edward Garnier (Harborough) (Con)]

May I begin by declaring an interest as a practising member of the defamation and media law Bar? I speak here, however, as a Member of the House and not as a barrister representing any particular client, claimant or defendant. The fact that I am currently acting for a well-known claimant whose reputation has been grievously damaged in the recent past has no bearing on what I want to say—

[Dr Thérèse Coffey]

By TV.

--- Later in debate ---

[Sir Edward Garnier]

As it happens, I have over the past 35—[Interruption.] Does my hon. Friend the Member for Suffolk Coastal (Dr Coffey) wish to intervene?

[Dr Coffey]

Yes. I would just like to point out that in the case of the person for whom my hon. and learned Friend is rightly working, it was television making references to that allegation, not the press.

[Sir Edward Garnier]

I think I might be permitted to know a little more about that case than my hon. Friend does. As it happens, I have over the past 35 years or so—[Interruption.] Would she stop mumbling?

Over the past 35 years or so, I have acted for and advised both claimants and defendants in more or less equal measure. Unsurprisingly, many of the defendants were newspaper publishers, editors and journalists and their broadcast media equivalents.

The House and the public as a whole owe a huge debt of gratitude to Lord Justice Leveson. His report is long but comprehensive. It is thorough and analytical. It contains opinion and recommendations, but they are based on fact, founded on the evidence he heard and read. Neither he nor his report can be described as “bonkers” and the report does not resort to hyperbole, make hysterical criticisms of the media or demand state control of the press. It is, in my view, a fair and balanced report that has exposed and tackled some difficult, if not entirely novel, questions.

I say that the questions were not entirely novel, because in this House in January 1960, a Mr Leslie Hale, who was then the Member for Oldham West, moved to repeal the Justices of the Peace Act 1361, among whose provisions was one to outlaw eavesdropping. A predecessor of mine as Solicitor-General, Mr Peter Rawlinson, then the Member for Epsom, said:

“Translated into ordinary terms, the Bill which the hon. Member seeks to introduce, dressed up like a radical bird of paradise, is nothing less than a modest charter for peeping Toms and eavesdroppers…It is also a charter for other strange people who pester law-abiding citizens and persons of that kind.”

He went on to say:

“The modern use of the Bill is mainly to prevent the ordinary citizen from being pestered by those unbalanced eccentrics who, with an imagined grudge, patrol the outskirts of houses, terrifying families by constant use of the telephone, or by those people who are unbalanced and usually malevolent but who do not break the law by means of assault or trespass. Therefore, there is no weapon which the law-abiding citizen has against them except the use of these powers which may be the only effective one which rests in the hands of such citizens.”—[Official Report, 26 January 1960; Vol. 616, c. 54.]

So over a period of about 600 years the issue of intrusion into the private lives of others by use of illegal listening devices, be it the human ear or electric surveillance machinery, has been current. This is one of the reasons why the inquiry by Lord Justice Leveson was initiated.

At heart, it seems to me that we are discussing the age-old problem now described as the tension between articles 8 and 10 of the European convention on human rights. Very often, people seem to remember the rights, but they do not seem to remember the exceptions to those rights. Article 8 says:

“Everyone has the right to respect for his private and family life, his home and his correspondence”,

but it goes on to say:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”,

so it is very much a qualified right, as is article 10, which provides the right to freedom of expression. It states:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

But paragraph 2 says:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

There are the tensions between articles 8 and 10, and there also are the exceptions to those two great rights which nobody in the House or elsewhere would find in the least bit controversial.

The issue that we are confronting—my hon. Friend the Member for Maldon (Mr Whittingdale), the Chairman of the Select Committee, drew this out, as have other Members this afternoon—is not whether we should have state regulation of the press. We are not talking about state regulation of the press in the sense that Mugabe, Putin or the Chinese politburo control the press. What we are talking about is whether the press needs to have a self-regulated body which is recognised by the state as being a competent authority to regulate the press’s activities.

The distinction is important. Much of the argument that one has seen in the press and elsewhere, and to some extent in discussions in and around the House, has been utterly off the point. It is to traduce the work of Lord Justice Leveson to suggest that he wants state control of the press. He has said on any number of occasions—I shall quote one or two examples—that the ideal that he is looking for is that

“the industry should come together to create, and adequately fund, an independent regulatory body, headed by an independent Board, that would: set standards, both by way of a code and covering governance and compliance; hear individual complaints against its members about breach of its standards and order appropriate redress; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil complaints about its members’ publications.”

As a member of the Bar, I would of course like people to litigate—that is how I pay my mortgage—but the short point is that if a system can be devised that has the approval of Parliament and which carries with it public approval and confidence, it seems to me that that mechanism, just as the Financial Services Authority is a body given permission by statute, could allow the press to inhabit a world of free expression, subject to articles 8 and 10, that would not interfere with its rights but would also adequately protect, by self-regulation, the rights of the victims of press intrusion and other forms of activity that are subject to the criminal or civil law. Of course many of the activities that led the Government to set up the Leveson inquiry were already against the criminal law, as my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) correctly spotted. It is illegal to hack, blag and interfere with other people’s telecommunications under various statutes going right back to the 1361 Act that outlawed eavesdropping.

[Sir Gerald Howarth]

Did not Lord Justice Leveson say that criminality on an industrial scale was itself part of a persistent culture of abusing private individuals, in particular, who have no recourse unless through my hon. and learned Friend, notwithstanding his modest costs? We in this House at least have a forum, but they have none at all, and that is why the report is so important. It revealed that there was a culture, and the press must deal with that, not just the criminality.

[Sir Edward Garnier]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Shorter interventions would be helpful. I know that two knights want to exchange views, but I worry about the costs that might be charged.

[Sir Edward Garnier]

I agree with the premise of my hon. Friend’s point but think that we perhaps draw different conclusions from it. Lord Justice Leveson has stated, as did our right hon. Friend the Secretary of State at the beginning of this debate, that the status quo is not an option, so if we learn nothing else from Leveson, we should learn that what went before cannot go on. It seems to me to be uncontroversial that the PCC is dead, for example. We need some other form of disciplinary body or regulatory system that matches public concern but also has parliamentary approval. We could approve through parliamentary procedure a body that is not statutory, but we could also approve a regulatory body that is not the creature of Parliament but that would be recognised and saluted by statute. There are plenty of other bodies that discipline the professions or other public bodies but that are not controlled by the Government.

[Mr Dominic Raab (Esher and Walton) (Con)]

Lord Justice Leveson’s approach is to argue that regulation must be independent not only of the press, but of Parliament, but he then calls for a statute, drafted by Parliament, detailing the criteria for recognition of the regulations, and that covers everything, from membership of the regulator to the content of the new rules and its powers. How does my hon. and learned Friend reconcile what strikes me as a fatal paradox in that approach?

[Sir Edward Garnier]

I do not have to reconcile it, because I find the answer on page 1,780 in part K of the report. I will not read it out because I do not have enough time, but I suggest to my hon. Friend that it repays reading. He should look at paragraphs 6.38 and 6.39. If I was a member of an appellate court, I would simply ask the shorthand writer to transcribe it into my judgment, but I cannot—I say to the Hansard reporter, have a go. Essentially, my hon. Friend’s point is one that is often made. If I may say so, with a little thought and study of the report, he will find that it is not strictly necessary to have the concerns, genuine though they are, that he displays and that they are dealt with by Lord Justice Leveson.

Time is running short and I have galloped through the points I wanted to make, no doubt inadequately and in a somewhat garbled fashion. There is plenty in the report that touches on the police, the conduct of the press and the appalling treatment meted out to victims, such as the Dowler family and others. That is all a given. It is also a given that the status quo ante must finish.

The debate that we are having, in this House and outside, is about what we mean by statutory regulation. To me, statutory regulation means no more and no less than what Lord Justice Leveson says: that a statute will recognise as an effective way of dealing with press conduct—and wider media conduct, including the internet—the disciplinary system to which the press must adhere. Clearly, we need buy-in from the widest possible section of the media, including the ordinary traditional press—the newspaper groups—and television and broadcast media through to the local press and others. I recognise that there will be difficulties over individual bloggers and so forth.

If we concentrate on what this report is not about, we miss a trick. Let us concentrate on what it is about, which is the democratic and constitutionally proper regulation of a disciplinary system.