Crime and Courts Bill [HL]

Debate between Baroness Bonham-Carter of Yarnbury and Lord Skidelsky

Monday 25th March 2013 Lords Chamber

[Lord Skidelsky]

My Lords, I would like to speak to Amendment 11B and a group of consequential and related amendments, and I am sorry not to have got to my feet quicker. These amendments seek to implement the Leveson report as Lord Justice Leveson provided for—no more and no less. I broadly welcome the Government’s Amendment 11 and the Minister’s explanation of it but would welcome assurance on a number of specific points.

There are three amendments on exemplary damages: Amendments 11C, which provides that the existing common law test does not apply in this case; Amendment 11D, which provides that vicarious liability should apply in this form of exemplary damages; and Amendment 13A, which provides that the court will have regard to the means of a defendant when making any award. It is very important that the law is clear that for exemplary damages to apply, the conduct does not have to be carried out with a view to a profit and with a deliberate disregard of an outrageous nature of the claimant’s rights; in other words, there are two alternative tests and not one. The Government’s amendment is unclear on that matter and I should like clarification on it.

Amendment 17E makes clear that to benefit from costs protection the publisher would have to participate in the self-regulator’s arbitration scheme. Amendment 17J provides that the current hold on the commencement of Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act in respect of publication proceedings will remain until a way forward is found. In relation to this, there will be cross-party talks in which Liberal Democrats and Conservatives will be able to take different positions. The reason for that is that Sections 44 and 46 of LASPO abolish the recoverability of success fees for the loser and would have disastrous effects on media claimants such as the Dowlers and the McCanns. I look forward to hearing from the Minister what the Government propose to do about the effective elimination of a success fee.

Two further amendments where assurances are sought are Amendments 19C and its consequential Amendment 19D, which concern the inclusion of data protection actions within the definition of publication proceedings. Amendment 19E provides that the Information Commissioner will take into account membership of an approved regulator when considering the exercise of his powers. In both these cases, we understand that the Minister will be bringing these back as part of the post-Leveson data protection consultation. We seek the assurance that decisions on this matter will be subject to cross-party talks in which Conservatives and Liberal Democrats will be able to take different positions.

Amendment 19B would require that the recognition panel which approves the self-regulator is subject to the Freedom of Information Act. No one would expect this body to act in secret. I seek an assurance from the Minister that the relevant special interests would be promulgated in good time for the start of its work.

Amendment 131A concerns relevant publishers which hold broadcasting licences. We seek assurance that this is not intended to cover the whole publishing activity of such licence holders but only their broadcasting activity. As regards Amendment 11B, which deals with the exemption from immunity of self-regulated newspapers to exemplary damages, I understand that a further amendment is to be agreed to this clause. Therefore, I need say nothing further about it and it can be considered in another place.

Amendments 17A, 17B and 17F would enable bloggers and small publishers who decide to join a self-regulator to obtain the costs protection that they deserve on the basis of it providing a low-cost arbitration service. I understand that this is the subject of continuing cross-party discussion and will also be dealt with in another place. Other noble Lords will have something to say on the position of bloggers and the need for small publishers to be excluded from the definition of relevant publishers. That has already been alluded to. I merely commend my two Amendments 18A and 18B as a contribution to the debate.

[Baroness Bonham-Carter of Yarnbury]

My Lords, I speak in favour of Amendment 11. We need it because we need the Leveson cross-party agreement on press regulation and because we need a raucous, unfettered press, but one that does not prey on the vulnerable and the innocent. I believe that we have achieved this balance through the proposed royal charter, and we have achieved it with all-party consensus, thanks in part to the persistence of my right honourable friend the Deputy Prime Minister. As part of that, the three parties agreed proposals on exemplary damages and costs designed to provide incentives for publishers to join the independent press regulator, as set out in these amendments.

I have been disappointed, if not surprised, by the response from some sections of the press to the cross-party agreement. In our debate on Monday, my noble friend Lord Fowler referred to that great practitioner of investigative journalism, Sir Harry Evans, and to a speech he made recently in which he abhorred the negative response to the Leveson report, in particular the suggestions that it was an attack on the freedom of the press. The freedom of the press is, as he said,

“too great a cause, too universal a value to a civilised society, to be cheapened as it is in the current debates. Every year upwards of a hundred journalists, broadcasters and photographers die in the name of freedom of the press”.

My great friend, Marie Colvin, was one of them. She died because she so passionately believed in making public the stories of the forgotten. In the case of her last despatch, it was the people of Homs. She knew about state control of the press and experienced it in East Timor, in Chechnya, in Sri Lanka and, finally, in Syria where the state targeted the media centre she was working from and killed her.

The royal charter and its independent press regulator, properly underpinned—to use that very unhappy term—will mean the end of unethical work practices and achieve a proper environment for journalists to ply their important trade. It protects both the freedom of the press and the rights of the individual.