Press Regulation (Communications Committee Report)

Lord Lester of Herne Hill Excerpts

Tuesday 20th December 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, it is a particular pleasure to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, with whose speech I entirely agree. His speech and that of the noble Lord, Lord Lexden, make it much easier for me to follow, and I shall try not to repeat what has already been said.

I want to say, first, to the noble Lord, Lord Best, that I congratulate him not only on his report but on the very fair way in which he summarised the position in his opening statement. It was, if I may say so, as good as any judge could have done in the circumstances. I cannot say the same for some of the contributions I have listened to this evening, as I shall explain, because they have not been fair in the way they have been expressed.

I make two preliminary points. First, if we look beyond this country to the rest of the rest of the genuinely democratic world, we can see that no country has fashioned the kind of system that Parliament passed when it amended two Bills to try to incentivise—that wonderful euphemism—the press into supporting indirect state regulation. When I travel around the world, I find newspapers and free speech groups astonished that the British Parliament, which values free speech as a British value, could ever have done what was done. That is water under the bridge, but it is important that the House understands that what we have done is the subject of deep, hostile criticism beyond our shores.

Secondly, as the noble and learned Lord, Lord Brown, has indicated, we already have plenty of laws that regulate the press. We have criminal and civil laws and, thanks to the European convention and the Human Rights Act, we have a right of privacy to be balanced against free speech. Those journalists who have been guilty of criminal behaviour have been tried, convicted and punished by the courts. Those who are guilty of infringements of privacy have had substantial damages awards against them. Max Mosley, who funds Impress, received £60,000 damages, but he was not content with that and he went to Strasbourg, where he tried to argue that before a newspaper threatens anyone’s privacy it must give notice so that an injunction can be awarded against it—and the Strasbourg court threw that out. Not content with that, he seeks through Impress to accomplish something similar.

I am independent and hold no brief for anybody, but I start with this: IPSO, chaired by Sir Alan Moses, has made great progress in the past two years, and it is completely wrong to suggest, as several noble Lords have done and, as the noble Lord, Lord Lipsey, said, that not much has happened or, as the noble Baroness, Lady Hollins, said, that there has been no proper regulation—that it is a lost two years and the Government have been backtracking. None of those statements is fair or accurate.

I shall not go through everything that has been done in the past two years, but I shall mention a few things. As the noble and learned Lord, Lord Brown, and the noble Lord, Lord Lexden, said, there has been an independent review under the chairmanship of Sir Joseph Pilling, who was Permanent Secretary of the Northern Ireland Office, author of the Church of England’s report on human sexuality, a former director-general of the Prison Service and a totally independent reviewer. In his 69 pages, which I doubt many noble Lords will necessarily have read, he looked carefully at IPSO and came to some extremely important conclusions as an independent valuer. That is something that has happened in the last two years—but there has been a great deal more than that.

I asked an official at IPSO to indicate some of the things that have happened. First, a budget has been agreed until 2020—that is something the PCC never had. Secondly, the byzantine rules and regulations inherited by Sir Alan Moses have been cut through by him—something it was said could never happen. Thirdly, there is now a fully functioning and fully staffed complaints system, and a standards function. Two sets of annual statements have been published from all-member publishers, which the PCC never did. A readers’ panel has been set up, with six members of the public, including Tom Rowland, a core participant in the Leveson inquiry. There is a journalists’ panel, which will have its inaugural meeting early in the new year, and, as I say, there has been a very important independent review under Sir Joseph Pilling.

During the past two years, IPSO has handled more than 20,000 complaints and inquiries. It has begun a pilot arbitration scheme, appointed an independent complaints reviewer, Trish Haines, and ordered 13 front- page references. That never happened with the PCC. It has a whistleblowing hotline and, very importantly, has issued private advisory notices. These are not made public but are an important way of disciplining the newspapers.

In his report, Sir Joseph Pilling introduced his recommendations by saying that,

“it is clear that already there are some important achievements. These achievements and the commitment from all of those involved for IPSO to be a success can be built on. These recommendations are not an attempt to save a failing organisation, rather they are intended to help a new regulator, which demonstrates early achievement, promise and commitment, to develop into a trusted, experienced regulator”.

That is an independent evaluation which should carry great weight not only with the Government but with the public and Parliament.

I want to say very little about Section 40 because I wrote about it last Friday in the Times. However, I should like to add to what the noble and learned Lord, Lord Brown, said about Section 40 by saying that in my view, not as a politician but as a lawyer, if Section 40 came before an independent court, I believe that the court would decide—say, by way of judicial review—that it is not compatible with freedom of expression or fairness. It is arbitrary, discriminatory and unfair. It states that even if a newspaper were to win a legal process, it would be liable to pay the costs of the loser as well as its own unless a judge in unspecified circumstances ruled otherwise. That is so obviously unfair that you do not have to be a very clever lawyer or judge to see that it cannot pass muster.

The Government are in a very difficult position. They are not backtracking. The Government have inherited Section 40 and there is pressure from the Hacked Off brigade and others to bring it into force. A Minister—I do not know who it was—must have certified under the Government who introduced Section 40 that in his or her opinion it was compatible with the European convention. In my view, the Minister was wrong: it is not compatible. However, it seems to me the only way that can be established is by the Minister deciding at the end of the review not to bring Section 40 into force, and then for the Hacked Off side to bring a judicial review. At that stage, a court of competent jurisdiction could rule on the matter. If I am right, at that stage, the Government will then be able to comply with the judgment of the court by using subordinate legislation to get rid of the offensive provision. Otherwise, I can quite see that the Government’s difficulty is that if they simply introduced a primary Bill to get rid of Section 40, in the present mood of both Houses it probably would not get through. I think the only way the Government can get it through is on the back of a judicial ruling.

Therefore, I have great sympathy with the Government’s position. This situation is not their fault. I have to say of the former Prime Minister David Cameron that from the very beginning he had grave reservations about what the other parties were doing in fashioning Section 40 and the exemplary damages provision.

Therefore, for all those reasons, I am glad that the consultation is proceeding and that we will know the outcome in January. I hope that the Minister will do nothing at all.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I echo the comments of others about being very grateful to the noble Lord, Lord Best, for introducing his report this evening so eloquently, and indeed to all noble Lords for the hard work that went into producing the report in the first place. I feel that the delay in timetabling this debate was unacceptable. It makes a mockery of our brilliant Select Committee system and the valuable work that they do. Nevertheless, the report still has relevance today. Although it did not go into detail—that was not its role—it reminded us of the widespread phone hacking and police connivance that created a national outcry about the impact that the press were having on their victims and led to demands for reform. In March 2015, the report posed the question: where are we now? Although, as we have heard from the noble Lord, Lord Best, there have been developments, sadly we remain blinkered by confusion and uncertainty.

It is worth revisiting the crucial cross-party agreement that led to the concept of a royal charter, which was there to safeguard the press from any fears of political interference and to establish the validation mechanism for a new, independent, self-regulated press complaints system. We should not lose sight of the importance of that all-party agreement if we are to make further progress in future. I stress that point because some noble Lords this evening have called for a new settlement or compromise. However, we should not lose sight of how difficult it was to reach that agreement around the royal charter all that time ago.

Under the terms of the royal charter, the Press Recognition Panel was established to determine which, if any, regulators met the criteria to be assigned the status of an independent self-regulator for the press. This was a core recommendation from the Leveson report. It was intended to replace the failed Press Complaints Commission and many previous versions of that discredited body. At the time of the Lords report, IPSO had been established as a successor to the PCC but had made it clear that it had no intention of seeking recognition under the royal charter. It continues with that position today and blatantly fails to meet many of the crucial elements that Leveson regarded as essential.

At the time of the Lords report, Impress had just been established with the intention of meeting the royal charter criteria. As we have heard, since that time Impress has applied to the Press Recognition Panel and has been approved as Leveson compliant. The Impress model of regulation includes crucial protections for readers, such as equal prominence for corrections and apologies and low-cost access to arbitration. These are not unimportant points. So I would like to ask the Minister this: how long are the Government intending to tolerate the majority of the press refusing to participate in an approved press regulation scheme, when there is now a scheme available that meets the criteria that were widely endorsed at the time of the Leveson inquiry?

Secondly, I will address the issue of Section 40 of the Crime and Courts Act, which implements a key section of the Leveson report. I have to say that Leveson himself is a very senior judge and was assisted by senior lawyers in the drawing up of that recommendation. At the time that the Lords report was published there was no reason to think that Section 40 would not be implemented in line with the original timetable. It is, after all, an integral part of the agreed Leveson model. It underpins the structure set up by the royal charter and it forms a key part of the rights and responsibilities that go with it. As we have heard, under the terms of Section 40 citizens who bring cases against newspapers that have not joined an approved regulator are protected from paying court costs. Equally, newspapers that have opted into the approved regulator offering low-cost arbitration are protected from paying the other side’s costs if taken to court. Those are the sticks and carrots that we have been talking about today.

It was inexplicable that John Whittingdale, then the Culture Secretary, announced in October 2015 that he was postponing the implementation of Section 40 —although, as we heard today, he had coincidentally met Paul Dacre two weeks earlier. This has now been followed by the announcement by the new Culture Secretary, Karen Bradley, that a consultation would be held on the future of Section 40. What possible reason could there be for a delay, apart from the unseemly lobbying from the powerful press barons who are determined to thwart the delivery of the Leveson agreement?

One reason for the current consultation that has now been announced is that local papers have raised concerns about the impact of Section 40 on their viability. Of course we want the local press to survive and thrive, but we need to bear in mind that the vast majority of local papers are owned by huge media corporations, which have a shared antagonism towards Leveson. What is more, if they signed up with an approved regulator, their concerns would be answered.

There are further concerns, not least that the thrust of the questions in the current consultation invites responses which are critical of the proposals. I ask the Minister whether the Government still stand by the cross-party agreement that led to the establishment of the royal charter. Does he accept that any failure to implement Section 40 would fundamentally undermine that agreement?

[Lord Lester of Herne Hill]

My Lords, could the noble Baroness, on behalf of the Official Opposition, deal with the point that I have made—and that the noble Lord, Lord Pannick, has made in the past—that we, as independent lawyers, take the view that Section 40 is contrary to the European Human Rights Convention and the Human Rights Act because it is arbitrary, discriminatory, unfair and contrary to press freedom?

[Baroness Jones of Whitchurch]

My Lords, I thought I had addressed that point. I know that this is an area where there has been some legal disagreement and my point was that Lord Justice Leveson was himself a senior lawyer. This is about implementing his recommendations. Clearly there are different legal views on this matter but it is certainly not a one-sided issue.

As to the outstanding second part of the Leveson inquiry, at the time of the first report in 2012 Lord Leveson reported that he was unable to investigate some aspects of the role of the press and the police as legal cases were ongoing. However, the last case was settled last month so there is now no reason why Leveson part 2, under a new chairman, should not go ahead, as was originally promised by the Prime Minister and others. A range of serious concerns about the role of the police remains. Indeed, over this period a number of police officers have gone to jail for taking bribes, while others plainly failed in their duty to investigate the illegal activities of the press and dismissed the known corruption as the actions of one rogue reporter when it turned out to be an endemic problem.

There are other outstanding concerns about the failure of corporate governance of these huge media corporations during the hacking scandals. These remain relevant given that Sky and 21st Century Fox have agreed the terms of a deal that once again raises questions about whether James and Rupert Murdoch are fit and proper persons to run a media company that owns a regulated TV service. There are also justifiable concerns about the concentration of ownership and whether the merger will threaten our commitment to media plurality.

Does the Minister accept that crucial inquiry work, which Leveson recognised as an essential next step, remains outstanding? Can he be sure that there is no case to answer from the police and others when no inquiry has taken place? Does he also agree that the proposed Murdoch takeover should be postponed until such an inquiry has been completed?

It would be a mistake to believe that the press have somehow cleaned up their act, as some noble Lords who have spoken in the debate would have us believe. As we have heard, they are continuing to make false allegations against individuals, breach victim confidentiality and print false and misleading stories without redress. Over the past year they have fuelled new levels of racism and Islamophobia and have created a wave of hate crimes against innocent civilians. Sadly, the truth is that without the full implementation of Leveson there will be nothing to stop the press from behaving badly in the future, potentially making victims of ordinary people and ruining their lives.

If this was not bad enough, the latest trends on the industrial-scale distribution of fake news and the throwaway assumption that we now live in a post-truth age—although I agree absolutely with the noble Baroness, Lady Hollins, that we should say that it is indeed an age of lies—only goes to underline the importance of having media in the UK that we can trust to tell the truth. If the phone tapping saga teaches us one thing, it is that the failure to tackle the criminal behaviour practised by our press is a mistake. Failure to investigate the wrongdoing of the past is simply storing up trouble for the future, and allowing the press to cock a snook at Parliament is going to risk our democracy being undermined. So I hope that the Minister will be able to reassure us that not only does he understand the continuing clamour for reform that is made so evident in this excellent report but that he accepts that his Government have a duty to complete the work recommended in Leveson part 1 and a further duty to implement Leveson part 2 now that the way is clear. The British people will not forget the way the victims of the press have been treated and they deserve better.

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

My Lords, I thank the noble Lord, Lord Best, for securing this important debate following the publication of the Communications Committee’s report in March last year. I note the lapse of time before this debate could be held but nevertheless it is important that it has taken place. The matter of press self-regulation remains a fiercely debated matter, and it is pertinent timing for us to have an opportunity today to discuss these issues.

A free press is an essential component of a fully functioning democracy and it is vital that the self-regulatory system allows the press to operate independently and carry out its crucial function. My noble friend Lord Lexden observed that we have a diverse, irreverent, bold press which is woven into our freedoms and liberty, and that is so important. It is a point that was echoed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble Lord, Lord Lester of Herne Hill. Moreover, as the noble Baroness, Lady Jones, concluded her remarks, she spoke of the need for a media that will tell the truth. However, that poses the question: whose truth? That becomes a real issue if government regulation goes too far, so it is important to look at this in context.

Since the Leveson report was published four years ago we have seen significant changes to the press self-regulation landscape. Indeed, even since the report of the Communications Committee was published there have been notable changes, as noted by the noble Lord, Lord Best, in his opening observations. In March 2015, as the report sets out, IPSO had only recently been established with around 70 members while Impress was still in development. The Press Recognition Panel was recently set up and it will be almost a year until the self-regulator applies for recognition under the new framework envisaged by Sir Brian Leveson. Today we are in a wholly different place. Impress was granted recognition by the Press Recognition Panel in October, making it the first and only recognised self-regulator under the new system. The Press Recognition Panel spent many months assessing the application from Impress against 29 criteria set out in the royal charter. This included three public calls for evidence and the panel published its report regarding its decision on 21 November.

Meanwhile, IPSO has also developed since its creation in 2014. It is trialling a pilot arbitration scheme that has already been referred to which is likely to conclude next summer, and a consultation on the editors’ code of practice was recently launched by the code committee. It also, as the noble Lord, Lord Lester, observed, commissioned Sir Joseph Pilling to carry out a review of its independence and effectiveness which reported in October, and indeed this was also referred to by the noble Lord, Lord Lipsey. I take issue with the suggestion from the noble Lord, Lord Strasburger, that there was any element of a sham about that process. With respect, that appears to be a misplaced suggestion.

We of course accept that IPSO has publicly stated that it will not seek recognition from the Press Recognition Panel. The background to that lies in some of the observations made by the noble Lord, Lord Lester, about whether this would be perceived to be a government-controlled form of regulation.

I turn to the system of incentives developed to encourage publishers to join a recognised self-regulator. There were, of course, the exemplary damages provisions, which came into force in November 2015, and, as the House knows, Section 40 of the Crime and Courts Act 2013 made provision for cost clauses, which have not been commenced. Unlike the exemplary damages provisions, the costs provisions clauses in the Crime and Courts Act 2013 did not have a specific commencement date.

Section 40 has been discussed extensively in this House at various times. It was designed to incentivise newspapers to join a recognised self-regulator. It contains two presumptions, with which we are familiar. First, if a publisher that is a member of a recognised self-regulator loses a relevant media case in court, it does not have to pay the winning side’s costs. Secondly, if a publisher that is not a member of a recognised self-regulator wins such a case in court, it would have to pay the losing side’s costs as well as its own.

As we have heard, Members of this House argue that commencement of Section 40 will bring substantial benefits for ordinary citizens by providing improved access to justice for victims of press abuse, as well as providing protections for journalists against the threat of high-cost libel claims. However, we have also heard from others, such as my noble friend Lord Lexden, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Lord, Lord Lester, and the noble Baroness, Lady D’Souza, that commencement of Section 40 could have a chilling effect on the press, particularly local titles, which may be threatened with legal action by those wishing to suppress stories that are in the public interest. They may consider it safer not to publish those stories.

It is interesting that in the course of this debate a number of your Lordships used terms such as “stalemate”, “uncertainty”, the “need for compromise”, and, “Is there a better way?”—a comment made by the noble Lord, Lord Lipsey. Indeed, the noble Baroness, Lady Hollins, posed the question of why there is failure to produce a resolution at this stage. It is because of the continuing debate and the increasing recognition that there must be a middle way and room for compromise, as observed earlier.

It is because of these strong views on both sides of the debate that the Government decided to launch a consultation in November to inform next steps in this area. As the Secretary of State for Culture, Media and Sport set out in her Oral Statement regarding the consultation, and again while giving evidence to the Communications Committee last week, this is an appropriate time to consider this incentive given the recent changes that have taken place in the press self-regulation landscape—changes that have been monitored by someone as independent as Sir Joseph Pilling.

The consultation presents five options regarding Section 40, ranging from full commencement through to full repeal. The consultation also asks for evidence regarding the impacts of these options on both the press industry and claimants. The Government are keen to hear views and evidence regarding the extent full commencement would have on incentivising publishers to join a recognised self-regulator. We do not shy away from that. We seek informed opinions from all sides in this difficult and demanding debate.

The noble Lord, Lord Lester, raised concerns around Section 40, its compatibility with Article 10 of the European Convention on Human Rights and the issue of freedom of expression. The Government remain confident that Section 40 is consistent with human rights legislation. However, we encourage those who have a contrary view to contribute to the consultation and to the debate in order that this matter may be bottomed out. I will make one observation. When the Minister certified the Bill for its introduction, there was of course no Clause 40—he might be forgiven for that at least. However, Clause 40, which was the product of an inter-party agreement, was moved as a government amendment. We continue to be of the view that it is convention-compliant.

Leveson 2 has been raised. Part 2 of the Leveson inquiry will be the subject of the consultation that is going forward. The consultation asked respondents whether the inquiry should continue either with the original or amended terms of reference, or indeed be terminated. It also asked for views and evidence regarding which terms of reference have already been covered by part 1 of the Leveson inquiry and by the criminal investigations—which, as the noble Baroness, Lady Jones, said, have already been concluded. Therefore, that matter remains open for the purposes of the consultation.

[Lord Lester of Herne Hill]

Could the Minister write to those who have taken part in the debate without disclosing legal advice but nevertheless explaining how the Government can say that Section 40 complies with free speech and the convention?

[Lord Keen of Elie]

I am certainly prepared to arrange to write a short letter explaining the Government’s view that it does comply and why we consider that it complies without going into a detailed legal analysis, if the noble Lord would regard that as sufficient at this time. As I said earlier, I would welcome his contribution to the consultation process and he might wish to reciprocate by responding not to me directly but in the consultation with his own expanded views as to why he does not consider that Section 40 complies. As the noble Baroness, Lady Jones, observed, Sir Brian Leveson himself, a most distinguished judge, appeared to be of the view at a very general level that such a provision would comply with the convention.

I turn to one or two of the additional observations made by noble Lords. The noble Lord, Lord Best, in a clear statement outlining the background to his committee’s report, himself observed that matters were far from resolved—a view with which the noble Baroness, Lady Hollins, concurred. He used the term “stalemate” with regard to the present position, which is why we have sought to bring about this consultation period. It is the one way to resolve such a stalemate.

My noble friend Lord Inglewood came up with a novel suggestion of tying in the complaints procedure to the operation of VAT. I have to confess that that does not strike me immediately as a use of Occam’s razor. The idea that we should merge our regulatory system of value added tax with press regulation appears at first to be a recipe for further potential confusion and difficulty—but I note his point about the various ways in which a cat can be skinned and of course we will give that further consideration.

I cannot accept the way in which the noble Lord, Lord Lipsey, suggested that the Government had spat in Parliament’s face with regard to Section 40. I simply do not accept that characterisation. He asked whether there was a better way or a compromise. There may be a better way; that is the purpose of the consultation. It is something that we must seek to bottom out. The noble Baroness, Lady Hollins, observed that there had so far been a failure to produce resolution—which is why, again, we consider it important that there should be this consultation period.

The noble Baroness suggested that the Government had intervened to suspend commencement of Section 40. That is not factually correct. There was never a commencement provision in respect of Section 40, unlike in respect of the provisions of the Act with regard to exemplary damages. The right reverend Prelate the Bishop of Chelmsford also referred to compromise. Again, that is why we are proceeding down the route of consultation at this stage.

I have already referred to the observations of my noble friend Lord Lexden, but they are worthy of repetition. He said that we have a “diverse, irreverent, bold” press that is woven into our freedoms and our liberty. That must never be forgotten.

The noble Lord, Lord Strasburger, raised the question of the recommendations in Leveson at paragraphs 83 and 84. I just remind him that paragraph 29 of the consultation document states:

“The Report”—

meaning Leveson—

“made recommendations on the relationship between the press and politicians. The Ministerial Code was amended and, as a result, all Ministers (as well as Special Advisers and Permanent Secretaries) must now disclose details of all meetings with media proprietors, editors and senior executives wherever they take place. This information is published on a quarterly basis”.

I add only that I take issue with the suggestion from the noble Lord, Lord Strasburger, that IPSO is to be regarded as some form of ploy. With the greatest respect, that does not acknowledge the work of Sir Joseph Pilling in reviewing independently the setting up and operation of IPSO. Albeit it has not gone as far as we may have wished, or as many would have wished, and it may not go as far as the regulatory regime would at present require, nevertheless it has moved and at least in the correct direction.

Finally, I simply note that as we go forward I acknowledge the observation of the noble Baroness, Lady D’Souza: you cannot take democracy for granted. You cannot take the freedom of the press for granted, either. When we speak of “truth”, we must again pose the question of whose truth we refer to. This Government are determined that a balance be struck between press freedom and the freedom of the individual. Those treated improperly must of course have redress. Likewise, politicians must not seek to stifle the press or prevent it doing legitimate work such as holding us to account when required. The conclusion of the Communications Committee report makes clear the importance of finding an adequate balance between the right to privacy and freedom of expression. I thank the committee for its ongoing work in this important area.