Leveson Inquiry

Lord Lester of Herne Hill Excerpts

Friday 11th January 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, in view of the attack by the noble Lord, Lord Donoughue, on Rupert Murdoch, I suppose that I should declare an interest, in that I have represented the Times and the Sunday Times in both Rupert Murdoch’s reign and that of Harold Evans.

Sir Brian Leveson is a very senior and experienced criminal judge. His careful evaluation of the evidence has demonstrated, in his words, that there have been far too many occasions when parts of the press have acted,

“as if its own code … did not exist. This has caused real hardship and, on occasion, wreaked havoc with the lives of innocent people whose rights and liberties have been disdained. This is not just the famous but ordinary members of the public, caught up in events (many of them, truly tragic) far larger than they could cope with but made much, much worse by press behaviour that, at times, can only be described as outrageous”.

I strongly agree with that conclusion and the central recommendation for a new self-regulation body, independent in respect of appointments and funding, with a standards code, an arbitration service and a speedy complaint-handling mechanism. I also agree that it is essential that there is legislation to underpin and facilitate its recognition in legal processes. I have sought to do so in the little Bill that I introduced last month.

I strongly support self-regulation with statutory underpinning, not state regulation, under a new system that commands widespread public confidence. A contract or a royal charter should contain the machinery and details of self-regulation, including professional codes, arbitration and dealing with complaints. However, there needs to be statutory underpinning to guarantee independence from government interference—I do not share the apparent trust of the noble Lord, Lord Donoughue, in politicians other than the noble Baroness, Lady Thatcher—to create incentives for joining the scheme and complying with professional standards, and to make sure that the new regulator is able to secure compliance and provide effective remedies.

The overriding and pressing need is for the industry to agree on a new, independent, well resourced and powerful regulator of professional standards and conduct. Statutory underpinning should avoid legislative overreach bordering on state regulation. However, Sir Brian’s proposals include extending the law on punitive damages and data protection. That, in my opinion, would be counterproductive and would seriously hamper investigative journalism in breach of the freedom of expression of the public and the media as public watchdogs, and purveyors of information and ideas to the public on matters of legitimate public interest and concern.

Lord Justice Leveson recommends extending the law on exemplary damages by Act of Parliament so that if a newspaper publisher chooses not to subscribe to the proposed regulatory body and is found to have infringed the civil law rights of a claimant, the publisher could be considered on that basis to have shown wilful disregard of standards and be liable to exemplary or punitive damages. This potentially draconian penalty would apply to any newspaper publisher, including a small regional newspaper or Private Eye. I disagree with that recommendation. Exemplary damages are punitive and, in essence, criminal penalties, not intended to compensate the claimant for any loss. In 1997, the Law Commission recommended that there should be an extension of exemplary damages, but there was no consideration of whether that would conform to the constitutional right to free speech.

Sir Brian relies on that 1997 report and explains that he has,

“no doubt that the court should be able to award exemplary damages in privacy cases and ... breach of confidence and similar media tort”.

However, in 1999, when the noble and learned Lord, Lord Irvine of Lairg, was Lord Chancellor, the Labour Government announced for good reason that it had decided not to take that Law Commission recommendation on exemplary damages. The Labour Government reiterated that position eight years later, when the noble and learned Lord, Lord Falconer of Thoroton, was Lord Chancellor, in their 2007 consultation. Lord Justice Leveson’s report does not mention these continued rejections of that proposal. Nor does it consider the serious risk that to extend the law on exemplary damages in that way would be incompatible with free speech.

It goes further. The report refers to Mr Justice Eady’s ruling in the Mosley case, but fails to quote the passage from the judgment in that case that is at odds with Leveson’s recommendation. Mr Justice Eady sets out in detail why it would be wrong in principle and a violation of free speech to extend exemplary damages in the way that is suggested. Mr Justice Eady’s statement is important because the tests of necessity and proportionality that he sets out have to be satisfied if a penalty on free speech were to pass muster under our constitutional right to free expression. I very much hope that that proposal will not be taken forward by the Government or anyone else.

I also disagree with the recommendation to tighten the law on data protection. The proposed amendments would result in restrictions on investigative journalism that could defeat the very object of the protection afforded by Section 32 of the Data Protection Act and tilt the balance unfairly against press freedom and free speech. I am quoted by Sir Brian Leveson in his report as being “prescient” in having, in a debate a dozen years ago, queried whether what the Government were doing on data protection made sense. Sir Brian describes me as prescient, but I was never asked to give evidence to the inquiry and, if I had been, I would have said that I did not share the view that I had been prescient. The past 12 years have not demonstrated that anything like the changes made to data protection proposed would now be justifiable. It is therefore welcome that the Government are going to consult on that crucial question.

Statutory underpinning is needed to compel Ministers and others to uphold freedom of speech, freedom of the press and the independence and effectiveness of the new regulator. Those aims cannot be achieved by contract alone because a contract does not bind third parties or affect the role of the courts. Another reason why an Act of Parliament is needed is to provide a powerful incentive for publishers to join the new system and abide by high professional standards. That incentive is contained in my little Bill by widening the public interest defence in claims of libel and media intrusion on personal privacy where the newspaper, its editor or staff can show—it is for them to do so—that they have acted responsibly in news gathering and publishing, in accordance with the standards and practices prescribed by the new regulator. The courts would take that into account, making it much less likely that the publisher would be found liable for alleged wrongdoing. I hope something along these lines will be accepted by the press and the politicians to overcome what I regard as irrational opposition to any statutory underpinning.