National Security Bill

Lord Stevenson of Balmacara Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I want to pick up two points raised by my noble friend Lord Coaker in his introduction, and which others have touched on in the course of the debate. They are the proposals in the Bill to criminalise legitimate public interest journalism, and to ask whether the measures included within this Bill, and the similar measures in the Online Safety Bill, are sufficiently harmonised.

The Minister has explained the rationale for the Bill and noted the influence of the preceding Law Commission review. However, the Joint Committee on Human Rights points out that, although the Bill is broadly in line with the Law Commission recommendations, it does not include all of them, and as a result there are risks that the Bill would

“criminalise behaviour that does not constitute a threat to national security”

and

“interfere unnecessarily and disproportionately with rights to freedom of expression and association”.

A free and independent press facilitates government accountability and the public’s right to know, but the nature and scope of the proposed espionage offences will have a chilling effect, discouraging sources—including whistleblowers—from coming forward and engendering a risk-averse environment in media organisations. Others have argued that the failure to include a public interest defence in the Bill poses a grave threat to investigative journalism and its sources.

Clause 5 outlines conditions under which unauthorised entry to a prohibited place would be a criminal offence. The noble Lord, Lord Marks of Henley-on-Thames, expressed concern that photographers capturing material as part of their journalistic duties would thereby fall into scope of the Bill. The Law Commission envisaged a public interest defence available to anyone—including journalists and photographers—charged with an unauthorised disclosure under the Official Secrets Act 1989 on the basis that

“it was in the public interest for the information disclosed to be known by the recipient; and … the manner of the disclosure was in the public interest.”

I accept the concerns expressed by the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, but I believe that the courts would be able to reach a view on such cases, and I urge the Government to introduce the defence.

The Law Commission also advocated having a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under the 1989 Act. There may be other protections for whistleblowers, as has been pointed out, but there is a principle at stake here. The report I have already quoted noted that the

“recommendation for a statutory commissioner, fortified by a public interest defence, … is about a fair law that takes seriously the public interests in national security and in accountable Government”,

so it would have a dual function. Who could resist calling for “fair law” anyway? That would be nice.

A public interest defence enables matters of public interest to be scrutinised and debated and allows malpractice to be exposed and addressed. I suggest to the Government that this could help them with the problem they are having with the issue of “legal but harmful” material and freedom of expression in the Online Safety Bill. The intention in this Bill is clear: to ensure that platforms in scope of the Bill do not have the right to take down content from “recognised news publishers”, and that their websites are also exempt from the Bill’s scope. But the problem lies in defining “news-related material” and determining what constitutes “recognised news publishers”. As the Joint Committee for pre-legislative scrutiny of the Online Safety Bill—I declare my interest as a member—recognised, introducing a public interest test in the Bill for this purpose would be very helpful in this context, and it would have the additional benefit of ensuring that hundreds of independently regulated specialist publishers’ titles are not excluded from the protections afforded in the Online Safety Bill.

I look forward to the Minister’s response.

Queen’s Speech

Lord Stevenson of Balmacara Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, as the noble Baroness, Lady Bonham-Carter, noted when she spoke earlier, DCMS has six Bills in this Session for which it is the lead department, and one—the digital markets, competition and consumer Bill—for which it is joint lead with BEIS. This is a large and significant amount of activity, and it is good to see it coming from a department that has often not pulled its weight as much as its importance would suggest. I am sad that time limits mean that I cannot deal with much of what is to come, and I am going to restrict my remarks to the media Bill and the Online Safety Bill.

The appearance of the recent White Paper on broadcasting, Up Next, was a bit of surprise. We normally have to wait, sometimes for years, before getting insights into the Government’s thinking on big policy issues, particularly if, as in this case, they deal with controversial issues not covered in their manifesto. In truth, this is more of a Green Paper than a traditional White Paper—perhaps a smoky green. There are some welcome decisions on policy on the future of public service broadcasting and on prominence and standards in the digital world, but flagrant disregard of the evidence received about the proposed privatisation of Channel 4 and an almost universal rejection of the arguments from experts, commentators, Select Committees and Conservative Back-Benchers in the other place—and indeed here, on Tuesday, rather bravely, by the second supporter of the humble Address, the noble Baroness, Lady Fraser. These suggest that the Government have got this wrong, so what on earth is it doing in the list of Bills?

Up Next gets right much of the history, thinking, careful policy development and past practice which has created our brilliant public service broadcasting system, which the Government admit is the envy of the world. Some of the changes proposed will build on that and can be supported. But the truth is that unless the Government radically change the carefully constructed remit for Channel 4, it will not sell, as no private sector owner could make the returns it will need to recoup its investment and then go on to make profits. That means that the distinctive public service remit and support of the creative industries that Channel 4 has delivered in recent years will be lost and with it will go the 100 years of public service broadcasting that the Government say they want to preserve. Up next? What next? If the Government proceed with this proposal, they will find that they have a battle on their hands. With Red Igor, as we must call him—sadly, the noble and learned Lord, Lord Judge, is not in his place—egging us on, who knows where we will go?

Like others, I welcome the changes the Government have made to the original draft of the Online Safety Bill, which has the potential to establish an effective framework for the regulation of social media companies operating in the UK. I suggest to the Government that they work with the considerable expertise that exists in your Lordships’ House, including among those of us who served on the excellent Joint Select Committee which undertook the pre-legislative scrutiny of the Bill. This could get us to a much better place on a number of the key issues; we are not far apart.

There are issues that would be the subject of early meetings and I shall suggest an agenda for the Minister to consider once this debate is over. The drafting of the Bill is overly complex. For example, while the objectives of the legislation now appear in the Bill, they are in Schedule 4. Given that they underwrite the Bill’s safety duties, this seems a very bizarre choice that is likely to cause confusion. There needs to be a clearer separation of powers between Ministers and the regulator. The draft Bill takes far too many powers for the Secretary of State, particularly egregious being the Secretary of State’s power to direct Ofcom to modify codes of practice to bring them in line with government policy—so much for an independent regulator.

The Bill quickly loses the clarity and focus of its earlier parts and much of the detailed material should be left to the regulator to determine. In particular, the proposed rigid categorisation of companies and the strictures on remediation for legal but harmful content surely have to flow from the risk assessments carried out by the regulator. This attempt to micromanage the legislation has meant that the Bill does not properly address the issue raised by my noble friend Lord Hunt: how to balance freedom of speech with the huge volumes of racism, misogyny, anti-Semitism, disinformation and misinformation that are not criminal but are oppressive and harmful.

The late, but welcome, decision to include scam adverts in the Bill raises the issue of how advertising is regulated more generally. The current ASA self-regulatory regime for the content of ads and the weakness of the penalties which can be applied need to be urgently reformed, but the whole system needs to be controlled by Ofcom. The regime described in the Bill could and should be employed by other regulators to make markets work better and offer more protection to the public. Surely this would be a good time to make sure that all regulators, including the Electoral Commission, have the statutory powers they need and ensure that joint action has full statutory backing.

Our Joint Committee felt strongly that there should be a continuing role for Parliament in this fast-moving and technically challenging area. A possible model here is the Joint Committee on Human Rights; perhaps the Minister could address this when he comes to respond. Finally, a glaring anomaly in the Bill is the complete absence of any systematic approach to ensure that consumer complaints and redress against social media publications are properly dealt with. Ofcom will have the power to ensure that there are systems in place, but despite the fact that there is already concern about this issue and the public expectation is that there will be action, nothing appears in the Bill. It is time for the Government to act.

Extradition (Provisional Arrest) Bill [HL]

Lord Stevenson of Balmacara Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 23rd March 2020 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I thank both noble Lords who have spoken. I was looking at the noble Baroness, Lady Ludford, slightly strangely because it is unusual to speak twice on the same group of amendments. It really does not matter because these are very unusual times, so it is not a precedent.

I do not know whether noble Lords want me to go through the full arguments today or whether they want to return to them at Third Reading; I sense that that is the mood of the House. Noble Lords have made their arguments. For the reason that the noble and learned Lord, Lord Judge, is not here and would like a further crack at this whip, I suggest that we let this lie for the moment and return to it at Third Reading, if that is okay with noble Lords.

[Lord Stevenson of Balmacara (Lab)]

I am sorry to interrupt. The sensibility behind the noble Baroness’s comment is that this a matter that we can come back to at Third Reading. Without wishing to be overly bureaucratic about it, following her helpful line in allowing issues on Report to be taken in a more relaxed way, a rule in the Companion is quite clear that it is with the leave of the Minister that matters can be raised again. Is she saying that, if these amendments are withdrawn, she will accept that they may be brought back for further debate and discussion? That would be sufficient for the clerks to be able to allow us to do that.

[Baroness Williams of Trafford]

I most certainly am saying that. For me to lay out arguments today, with the noble Baroness saying what she said about coming back to this at Third Reading, would seem a little futile. That is absolutely what I am saying.