Enterprise and Regulatory Reform Bill

Lord Phillips of Sudbury Excerpts

Monday 18th March 2013 Lords Chamber

[Lord Lipsey]

My Lords, I speak as a former deputy editor of two national newspapers and perhaps I may say, straight at the beginning, that I see in this royal charter, with the backing that it will get in legislation, no threat whatever to the freedom of the press which we all cherish so much.

There is, after this good day for our democracy, just one question that we should think about. Is there a danger that what we have achieved will be undermined by large sections of the press refusing to join the new regulatory body? From where we sit, the idea that they might not may seem fantastical but—noble Lords have long memories—there was such a case in our legislative history, and in many ways it is analogous. The Industrial Relations Act 1971 was passed by a majority in Parliament but was then scuppered because the trade unions refused to register under it although they had enormous incentives—as there exist for the press in this Bill—to do so. It did not do the unions any good at all because what they got in consequence, a decade later, was Thatcherism. They would have done much better to stick with the Heath proposals. I would say the same to the press now. If they do not join up to this body, they will face something far more draconian than what we have in front of us this afternoon.

There are incentives to join—for example, the relief from exemplary damages. However, there are greater incentives to join than that. I think that newspapers that do not join risk their circulations. Just as Liverpool punished the Sun for its reporting of Hillsborough, so the British public will punish newspapers that fail to sign up to this system. If the public do that, how much more so may advertisers who do not wish to place their advertisements in journals which have placed themselves beyond the pale? The odds are that newspapers will be inclined, when they consider it rationally and coolly, to sign up.

However—and this is the true importance of today—if they do not, they will know that it is the united will of all three national political parties and of both Houses of Parliament that they are trying to thwart. If there is a confrontation between our Parliament—reflecting, as in this case it does, the will of the people—and the press, there must be only one winner.

For all those reasons, plus the fact that a number of newspapers have in recent days evolved to a much more sensible approach to these things—I pay tribute to the editors of the Financial Times, the Guardian and the Independent on this, and I think that others will follow—when they weigh this and see the united will coming from this Parliament, they will understand that they have to take part in a full and open spirit, and our nation’s life will be the better for it.

[Lord Phillips of Sudbury]

My Lords, I apologise to my noble friend the Minister for not raising this rather gritty little point before this debate, but of course this is all hot off the press. There could be a lacuna in this amendment. It requires the approval of Parliament for any amendment to the royal charter or dissolution of the recognition body. However, might it be possible—and one is thinking of possibly years hence—that the newspaper industry could decide not to dissolve these arrangements but simply to sidestep them by establishing a parallel and separate body? I would like to have the answer to that question, because I think it is germane.

[Lord Elystan-Morgan]

My Lords, I wholeheartedly applaud the intentions of those parties that have brought about this compromise and their integrity. I make that observation, however, subject to one factor. If I am indulging in a pettifogging lawyers’ argument then I apologise if it has no substance. However, if I happen to be right, it will be something that I can regale my grandchildren about for some time to come. A royal charter is, of course, a sovereign prerogative. How far can that prerogative be circumscribed, if at all, by any decision of either or both Houses of Parliament?

Let me test my doubt in this way. The creation of Peers, as we well know, is the prerogative of Her Majesty the Queen. Any decision taken by either House to circumscribe that authority to the slightest degree would be invalid. If I am correct in that submission, does it not apply to this situation equally so? In other words, any decision by both Houses of Parliament to circumscribe that absolute, sovereign royal authority will be less than valid. It may well be, and probably would be the case, that Her Majesty would graciously surrender her prerogative, but that is a different matter. I am raising this point now as a very narrow, legalistic point, and I would be grateful if I could be told exactly what the constitutional answer to it is, if you please.

--- Later in debate ---

[Baroness O'Neill of Bengarve]

My Lords, before the Minister replies, like many other noble Lords I have been trying to clarify where we are. I think that it is the case that the detour through the royal charter, which is where the two-thirds majority is mentioned, means that an ordinary vote in both Houses of Parliament would not be sufficient. This royal charter is an instrument of the Privy Council. We are not voting to create a royal charter, as that is beyond our powers. It is the Privy Council that will create it. We are indicating, as it were, a mechanism of access to that which it is intended the Privy Council will create at a future date.

[Lord Phillips of Sudbury]

My Lords, I am sorry to prolong this, but it seems rather important. The Minister said in answer to my question that the industry could indeed side-step the whole of this mechanism. Therefore, what we have here by way of protection—namely, you cannot amend and you cannot dissolve—could be rendered nugatory by the industry simply saying, “We are going to set up a parallel, separate body”. I wonder, therefore, whether some of what has been said is not perhaps misleading in terms of its efficacy.

[Lord Stevenson of Balmacara]

My Lords, the last few comments made by noble Lords obviously need to be picked up and looked at by the Minister. He has promised several letters, so I will not try and anticipate them, but I think that several of the questions bear on a point that was made earlier, which I would like to endorse. What we are looking at today is, of course, a compromise. It is a compromise in the best interests of the country. Indeed, it led my noble friend Lord Lipsey to say that this was a good day for democracy, not just because this was a step forward in the right way but because it was something in which we could perceive, behind the appurtenances of government and opposition, a real willingness to try to work together to create something that will last and will be substantial in addressing problems that we all know are there and whose solutions have been eluding us for some 70 years.

However, compromises, although they can work, will often leave one or two things unsettled. My noble friend Lord Reid and others have pointed out one or two that we really have to address. That is something that we can do, although time is short. The rationale for attempting to amend this Bill, and hopefully successfully doing so, was such that it was too obvious for us to ignore, but it raises questions of timescale. In order to get the Bill processed and brought into law, so that it underpins the work in the royal charter, we have to adhere to the timetable. I accept the points that have been made. I think that the Minister will take them away and do what he can with them. There are simple answers to a number of the points that were raised, but it will be important for those to be available to us as we see the process of the Bill going forward. There will be opportunities for that to be done.

I would just like to say three things. First, I feel bad at not having thanked a number of people for the work that has been done in bringing forward the arrangements that we are considering today. Primary among these, the noble Lord, Lord Fowler—we should have acknowledged this when he was speaking—has been an inspiration to many of us. I pay tribute to him and the constant work that he has put in to get us to where we are today. We have learnt a lot from him and we hope that he will see us through to the end of the journey.

The noble Lord mentioned—I echo his support—the work done by Hacked Off. The organisation started off as a rather odd collection of people but it found a rationale in that it provided two things that were really important. The first was that it recognised early on that the people who had the most of a lock on this process were the victims, but that they did not have an organisation. Hacked Off has provided that for them in a positive and supportive way, which was not to shut off the words that we wanted to hear from those who had been so badly affected by this whole process but to encourage and empower them to put across their points of view in such an extraordinarily effective way—we heard a small part of that from the noble Baroness, Lady Hollins, today. Hacked Off should be given a huge amount of support for what it has done.

It is also important to mention that, although this has largely been a creature of the major parties, the minor parties, from which we heard some evidence, were a key part as well. We would not have got to where we are today if they had not registered firmly in the last 48 or so hours that they had strong views and that they needed to be part of the solution and not ignored. I say thank you to all those.

Secondly, as part of the process, we should also acknowledge the work of many journalists. The noble Baroness, Lady Wheatcroft, spoke up for many of them and I salute what she said. She also gave us a helpful insight into possible behaviours by those with whom she used to work and perhaps still does. How sad that we did not hear from or have the benefit of the advice of the noble Lords, Lord Hunt and Lord Black, who I think appeared like ghosts at the Bar and indeed in the Chamber but did not contribute to our debate. We are the worse off for that, although we might speculate a little bit as to why that was the case.

My third point is simply to say that we should recognise that in entering into this compromise arrangement all parties have had to surrender a little bit, but in particular we have committed to two things, which should be on the record. First, during the passage of the Crime and Courts Bill, the three main parties will vote together to oppose any Leveson-related amendments unless they are agreed by all three parties. There are some exceptions that have still to be dealt with, one of which was referred to by the Minister. I put it to him that, as I understand it, it has not yet been agreed that the status of the charter body should be such that it would be outwith the responsibilities of the Freedom of Information Act. That is very much a live issue and bears back to the point made by my noble friend Lord Wills that it is rather odd to try to exclude from that process a body that should be concerned with information and information flow. Secondly, in an earlier debate, we in this House imposed some amendments to the Defamation Bill and it has been agreed that the clauses relating to the Leveson report in that Bill will be removed, if necessary by all three parties voting together. That will unblock the Bill, which, sadly, has languished and has not been seen since we passed our amendments some time ago.

I conclude by thanking the Minister for his support on this amendment. I have noticed that Ministers get quite attached to the Bills that they have to deal with. The noble Viscount, Lord Younger, took over from the noble Lord, Lord Marland, half way through the Bill and therefore perhaps has less attachment than he otherwise would have. Nevertheless, he has become a bit ferocious and protective of some things and I was a bit scared that he might take that attitude to this amendment, but he has not done so. He has been more than welcoming; he has been very supportive and has spoken warmly in support of this amendment today and I am very grateful to him for it.