Employment Rights Bill

Viscount Colville of Culross Excerpts

Committee stage
Monday 16th June 2025 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I declare an interest as chair of Authors’ Licensing and Collecting Society. I rise to speak to Amendments 301 and 302, which aim to provide vital protections for freelance workers in the UK. It was a pleasure to hear the introductions from the noble Lord, Lord Freyberg, and the noble Earl, Lord Clancarty, who set the scene extremely effectively.

The common theme is that the Bill take steps to modernise employment law but risks leaving a significant segment of our workforce behind. As we have heard from both out initial speakers, the UK’s freelance workforce is a powerful engine of our economy and culture, particularly in the creative industries. As both illustrated, the number of self- employed is not only rising rapidly, reaching 1 million now in the creative industries; but the actual proportion of those engaged in the creative industries, representing 32% of jobs within the creative sector, is an extraordinary figure.

Despite their immense contribution, however, freelancers currently lack a single clear voice representing their interests to government. This absence has led to a decline in pay and conditions, with nearly two thirds of freelancers reporting low or unfair pay in their careers, and an overwhelming majority impacted by late payments. As the noble Earl, Lord Clancarty, mentioned, the Covid-19 pandemic starkly exposed their vulnerabilities, highlighting a lack of security, unequal access to opportunities and inadequate basic safety nets. These three amendments specifically address those critical issues.

A fundamental problem is the lack of a consistent legal definition for freelancers. Freelancing is not the same as self-employment, and freelancers often operate through a mixture of engagements, blurring the lines of employment status. This ambiguity creates uncertainty and can inadvertently exclude them from rights.

Amendment 301 proposes to insert a new section into the Employment Rights Act 1996, providing a clear definition: a freelancer is an

“individual who is engaged to work by a company directly on flexible contracts, through their own company or through other companies on a short-term basis, and who is typically responsible for their own tax and national insurance contributions and is not entitled to the same employment rights as employees”.

I take the point of the noble Earl, Lord Clancarty, about sole traders, but this clarity is essential for effective policy-making and for freelancers themselves to understand their status and rights.

The amendment also empowers the Secretary of State to issue further guidance and to create an online tool to assist in determining freelancer status, adapting it as time goes on. Once we have a clear definition, we need a dedicated champion, and the noble Earl’s Amendment 287 proposes the establishment of an office of the freelance commissioner, to be led by an independent freelance commissioner appointed by the Secretary of State. This role, as he mentioned, has been overwhelmingly called for by voices across the sector, including my own Authors’ Licensing and Collecting Society, Creative UK, the Federation of Small Businesses, Prospect and a host of other organisations to which he also referred.

The freelance commissioner would serve as a critical conduit between industry and government, providing expert knowledge and genuine oversight. The responsibilities are set out in the amendment, but, in effect, he or she would advocate for the needs of freelancers across all government departments; bridge the existing gap in representation, especially where councils such as the Creative Industries Council lack advocacy for individual artists or creatives; drive change in government and business, aiming to eradicate the red tape affecting freelancers; gather and analyse crucial data on the freelance workforce, with a focus on the creative industries; and improve government understanding of the employment issues facing freelancers.

Finally, to ensure that the commissioner’s role is embedded in government policy considerations, Amendment 302 introduces a duty on relevant government departments to consider the specific needs of the freelancer workforce when formulating new policies or regulations. Currently, freelancers are often left behind in government policy due to gaps in data and their irregular employment patterns. They are more susceptible to economic fluctuations and lack the fundamental protections that employees enjoy, such as sick pay, flexible working hours and parental rights.

This amendment would mandate that departments such as the Department for Business and Trade, the Department for Work and Pensions and the Department for Culture, Media and Sport have due regard to freelancer circumstances. Crucially, it would also require those departments to consult with the freelance commissioner during the development of any such policies. This duty is vital to ensure that upcoming employment reforms are fit not only for more traditional forms of employment but for the self-employed and freelance workforce, thereby safeguarding the long-term success of industries such as the creative sector.

These three amendments, which seek a clear definition of a freelancer, the establishment of a dedicated freelance commissioner and a statutory duty on government to consider freelancers in policy-making, are interconnected and essential. They represent a fundamental recognition of the modern workforce and a commitment to creating a fairer, more secure environment for those who drive innovation, creativity and economic growth.

[Viscount Colville of Culross (CB)]

My Lords, I apologise for being unable to here at the beginning of this debate despite having added my name to Amendment 287. I was stuck on the motorway for the last three hours. I absolutely support the amendment; it is an incredibly good measure. I hope that the Minister will listen kindly to my noble friend’s amendment and speech.

[Baroness Caine of Kentish Town (Lab)]

My Lords, I support Amendment 287 tabled by the noble Earl, Lord Clancarty, which provides an opportunity to address a long-standing gap in protection for freelance workers. To illuminate that, I will focus on one area of specific concern: health and safety.

At least 70% of the production workforce in film and TV operates on non-permanent contracts. Technically classified as “self-employed”, they do not meet the standard definition of autonomous self-employment. Current laws surrounding health and safety at work are often open to interpretation by those on productions who hire them, and, in some productions, a culture of minimum compliance becomes compounded by an industry that tends to self-regulate. Freelancers often do not raise safety concerns or request reasonable adjustments to the work they are doing, as they fear gaining a reputation for being difficult in highly networked industries where word of mouth is a powerful currency.

To illuminate that further, let me turn to a tragedy raised in this place last February by my noble friend Lady Smith of Basildon—the now Leader of the House—while in opposition, during a very well received debate led by my noble friend Lord Bragg on the contribution of the arts to the UK economy and society. She referenced the work of the Mark Milsome Foundation, a campaign established following the tragic workplace death of this highly respected and experienced camera operator on a film set in 2017. At the inquest on Mark’s death, the coroner concluded that, on that set,

“the risk of Mr Milsome being harmed or fatally injured was not effectively recognised, assessed, communicated or managed”.

Despite these findings, no one has ever been held accountable, suggesting a gap or flaw in the law that needs to be filled or rectified, affording freelance employees the same safety rights, benefits and policies as others in employment.

Employment Rights Bill

Viscount Colville of Culross Excerpts

Committee stage
Tuesday 3rd June 2025 Lords Chamber

Moved by

[Viscount Colville of Culross]

129: After Clause 26, insert the following new Clause—
“Prohibition of unpaid work experience for a period exceeding four weeks(1) The National Minimum Wage Act 1998 is amended as follows.(2) After section 3(3) (exclusion of, and modifications for, certain classes of person) insert—“(3A) “No provision shall be made under subsection (2)(a) in respect of persons participating in a scheme designed to provide work experience for a continuous or non-continuous period which exceeds four weeks.””(3) After section 41 (power to apply Act to individuals who are not otherwise “workers”) insert— “41A Application of this Act to persons undertaking work experience(1) The Secretary of State must, in exercising the powers under section 41, provide that this Act applies to a person undertaking work experience with the same employer for a continuous or non-continuous period which exceeds four weeks.(2) The Secretary of State must make regulations in accordance with subsection (1) within a period of six months, beginning with the day on which the Employment Rights Act 2025 is passed.(3) Such regulations must provide that a person undertaking such work experience who has ceased to be of compulsory school age, but has not attained the age of 26, is eligible to receive the national minimum wage at the rate specified for workers of the person’s age.(4) In this section—“employer” has the meaning given to it by subsection 54(4) of this Act (Meaning of “worker”, “employee” etc.), and also includes any organisation which provides an individual with work experience;“work experience” means observing, replicating, assisting with and carrying out any task with the aim of gaining experience of a particular workplace, organisation, industry or work-related activity.””Member’s explanatory statement
This amendment seeks to ensure that unpaid work experience cannot be used to avoid National Minimum Wage regulations.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a freelance TV producer. The noble Lord, Lord Holmes, whose amendment this is, has waited and waited to be able to debate it, but now, when the big moment arrives, he is prevented from taking his place in the Chamber by an unbreakable commitment—so the Committee has me.

This amendment is an attempt to address the wretched, exploitative workplace faced by far too many people wanting to enter work. It attempts to create a new definition of “work experience”, which would ensure that participants are educated, and not exploited, as they attempt to join the workforce. I am sure that noble Lords would agree that it is important for new entrants to spend time in a workplace, finding out whether they like the work environment and, even better, whether they are seen as a possible fit for the company.

Much energy has been spent focusing on how to get young people, and people returning to employment, back into the workplace. I am glad that there has been reform and improvement to the apprenticeship schemes, but that is for those who want training in a specific sector. However, many people do not know what they want to do and, for them, internships have been a way to discover whether they can engage with a particular industry and whether it can engage with them. Unfortunately, so many of these internships have turned out to be exploitative.

I have worked in the creative industries all my career, so I have first-hand experience of young people coming in to find out about the industry, only to discover that they are expected to work for either no pay or well below the minimum wage. This is happening not just in the creative industries but across the economy. I have been told about a strengthening coach, working for a major professional sporting body, who was initially on a short-term internship, which became a two-year, daily commitment. During all that time, he was not paid. He loved what he was doing so was afraid to ask for payment and was forced to take a second job to sustain himself.

Internships are essential, and they are covered by the National Minimum Wage Act, so any intern who qualifies as a worker, under the criteria laid out in the Act, should be paid. A new survey by the broadcasting union BECTU reveals that 49% of people joining the creative industries have been pressurised to work for free. In their desperation to get into this competitive industry, many succumb and work for free. The highly respected Sutton Trust found last year that 61% of internships undertaken by recent graduates were underpaid or unpaid. The largest percentage of these jobs are in the south-east, where accommodation is notoriously expensive. It means that those people from the regions and nations, or from more socially disadvantaged families, who cannot afford the accommodation, are prevented from taking up those places. For a Government who are determined and dedicated to getting people into work in well-paid jobs, this is a failure that must be rectified rapidly. Social mobility realises the talent of the whole population; it is the only way to ensure that our nation succeeds economically.

The body charged with enforcing the minimum wage Act is HMRC. Part of the problem is that if the intern is not paid, they do not appear on HMRC’s radar. This is not helped by the fact that so many small companies do not have anybody focusing on personnel issues and, even when they have an HR department, surveys show they are not well enough informed about the law. I ask the Minister: how many prosecutions against employers have there been under the National Minimum Wage Act for unpaid internships?

Amendment 129 is an attempt to sort out the complicated and often exploitative system for those trying to get into the job market. It is crucial to ensure that there is a difference in law between interns, who should be paid, and those undertaking work experience, who should not. Proposed new subsection (4) in the amendment sets out a new legal concept of “work experience”, defined by

“observing, replicating, assisting with and carrying out any task with the aim of gaining experience of a particular workplace, organisation … or work-related activity”.

The most important criterion for what constitutes work experience is that it is voluntary, and participants are not under the control of anyone else. It has to be a learning experience, and must ensure that participants are shadowing and not actually doing the job. Work experience is already part of many T-level courses for young people. Some universities facilitate work experience, but not nearly enough of these places are available. It is a crucial pathway into work life. At a time when we are hearing of so many people who are out of the workforce, it is important that this stage of their career is clearly established and legally defined.

I am pleased that the amendment has a time limit on what counts as work experience. A maximum of four weeks seems like a good duration. It would allow the participant sufficient time to get a grip on what happens in a specific workplace and to decide whether they want to embark on a career there, but, in my view, is not enough time for them to become established as an unpaid intern. So many underpaid or unpaid internships carry on for many more than four weeks, and this amendment would ensure that that does not happen.

The highly respected Sutton Trust says that access to the workplace is a central obstacle to social mobility. I beg the Government to take the suggestion in this proposed new clause seriously. I ask the Minister to examine it as part of a possible solution to the crisis facing new entrants to the creative and other industries. I hope your Lordships will discuss this further when the Committee gets to my noble friend Lord Clancarty’s Amendments 286 and 287 on establishing a freelance commissioner.

Meanwhile, this amendment is focused on the many thousands of young people who want to get into work but do not know what they want to do. If the Government take up the work experience category laid out in this amendment, it will give those people a taste of the workplace, which is crucial to engaging them and crucial to getting them engaged in the job market. I beg to move.

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, as somebody with long experience of campaigning against unpaid internships, I have a huge amount of sympathy with the motivation behind this amendment.

Certainly, it is true that a key reflection of the reversal of social mobility in this country has been the growth of unpaid internships. It started with the creative industries, where, in the past, a young person from a working-class background used to be able to start as a runner in broadcasting, or as a cub reporter on their local newspaper, and then found their path to national newspapers or progression within broadcasting blocked by the parachuting in of very often young people from wealthy backgrounds, often to senior positions, on an unpaid internship that nobody from a working-class background could afford to take. It costs thousands of pounds, particularly if the position is located in London and you do not live in London. I absolutely agree that unpaid internships have been a block and a major barrier to young working-class people’s progression.

My concern is that, from my perspective, the problem is not the law but the enforcement of the law. As trade unions, we have campaigned to get HMRC to take this seriously. There was a flurry of action around cracking down on unpaid internships, but, since Covid in particular, there has been an uptick—you have only to scan any recruitment agency website and you will see that they are brazenly advertising unpaid internships that lock young working-class people out of the professions, and doing so in flagrant abuse of the law.

Sadly, I cannot support this amendment. I fear that bad employers would be able to offer rolling unpaid internships, shoving young people through a revolving door of not getting paid as they are entitled to be for the productive work that they do. They should be paid at least the national minimum wage. What I would support is the proposed fair work agency launching a major crackdown on young people being robbed of their dreams and opportunities through the exploitative practice of unpaid internships.

--- Later in debate ---

[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

My Lords, I thank all noble Lords who contributed to this short but focused and interesting debate. I too regret that the noble Lord, Lord Holmes of Richmond, was unable to attend; with my Whip’s hat on, I note that perhaps if we had made better progress on earlier days of Committee then we would have heard from him directly. I pay tribute to him for tabling Amendment 129, which seeks to prohibit unpaid work experience for a period exceeding four weeks. I thank the noble Viscount, Lord Colville of Culross, for stepping into the breach and making a more than worthy understudy in moving the amendment. I thank my noble friend Lady O’Grady of Upper Holloway and the noble Lords, Lord Goddard and Lord Sharpe of Epsom, for contributing to this debate. This is an important issue, and the noble Lord, Lord Holmes, and others are right to raise it. I pay tribute on the record to his previous work campaigning on this issue, not least through his Private Member’s Bill in the 2017-19 Session.

This Government made a commitment to deliver the biggest upgrade to workers’ rights in a generation. This includes tackling unfair working practices. As we heard from the noble Viscount, there are examples not simply in the creative sector—although that area of our economy is rife with them—but beyond it. This Government absolutely stand by the national minimum wage, and on 1 April delivered an increase of 16.3% to the 18 to 20 national minimum wage rate to make it £10 an hour—a record amount in both cash and percentage terms, making progress on closing the gap with the national living wage. This is an increase of £2,500 to the gross annual earnings of a full-time worker on the NMW. It was the first step in the Government’s plans to remove the discriminatory age bands and ensure that all adults benefit from a genuine living wage, making a real difference to young people.

I think it is worth saying in passing that we welcome, on this side of the House at least, the Conservative Party’s conversion in recent years to supporting the national minimum wage. However, as a member of the party that introduced it in the first place, in the teeth of some quite vehement opposition at the time, I assure noble Lords that this Labour Government are absolutely committed to supporting it and making sure that it applies in all cases where it should.

Work experience or internships can offer individuals, especially younger people, invaluable opportunities and experience. We do not want to close the door on these opportunities, but we do want to ensure that they are open and fair. Most importantly, where workers are due payment, they should be paid the wages they are entitled to, and I have to say that the current legislation already protects them.

As my noble friend Lady O’Grady of Upper Holloway—to whose years of campaigning in this area, through the TUC, I pay tribute—said, there is an aspect of this amendment, very well-intentioned though it is, that would create unintended consequences and raises the spectre of, as she put it, rolling internships of four weeks, on and on.

As we know, according to the Department for Education’s 2022 employer skills survey, around 5% of employers had offered internships, either paid or unpaid, in the preceding 12 months, and there were around 200,000 people on internships. The vast majority of these—88%—were of two weeks or more in duration, and nearly 30% were over six months. It is only right that these people should be paid the national minimum to which they are entitled.

As we have heard, the national minimum wage legislation provides for a number of exemptions to recognise the importance of gaining work experience. It is important to recognise that these examples have a strong and firm place in the economy, including students on placements for up to one year, as required as part of a UK course of either further or higher education, pupils below the compulsory school age, participants in certain government programmes to provide training, work experience or temporary work, and—the noble Lord, Lord Goddard, made this point—voluntary workers employed by a charity or voluntary organisation, providing they receive no monetary payments, except for expenses.

The Government are committed to banning unpaid internships, unless they are part of an educational or training course. Because of the way legislation is drafted, they are already largely banned. For national minimum wage purposes, the crucial fact is whether someone is considered a worker due to the nature of the work they do. Employers cannot simply call someone an intern or say they are doing work experience and not pay them. What matters is whether the arrangement they have makes them a worker for minimum wage purposes. However, one valid exception is work shadowing, which is where individuals are observing others perform tasks and are not performing any work themselves.

There is a risk that the broad-brush nature of this amendment could create loopholes, leaving interns or individuals on work experience open to abuse. Where an intern is carrying out tasks, they are a worker and therefore entitled to the national minimum wage. Accepting the amendment could mean that these individuals could be recruited for short-term roles and lose their entitlement to the minimum wage, even if they are performing work. The Government will be consulting on this issue soon. We want to engage with businesses and individuals who carry out internships or work experience. This is how we introduce change to ensure that individuals are protected and treated fairly.

We have heard from both the noble Viscount, Lord Colville, and my noble friend Lady O’Grady that enforcement is the issue here. The noble Viscount, Lord Colville, asked about the number of prosecutions. I am afraid I do not have that number to hand, but I will certainly undertake to write to the noble Viscount. Enforcement of any law is important, and I am sure that part of the consultation will cover issues of enforcement. Creating more laws but not solving the problem of enforcement would not actually get to the heart of the issue, which is making sure that, when people work, they are paid the national minimum to which they are entitled.

In that vein, I hope that we can deal with the issues the noble Lord, Lord Holmes, wishes to address most effectively outside the Bill. I therefore ask the noble Viscount, on behalf of the noble Lord, Lord Holmes of Richmond, to withdraw Amendment 129.

[Viscount Colville of Culross (CB)]

My Lords, this has been a short but informative debate and I am grateful to noble Lords who contributed. I listened very hard to the comments from both the Minister and the noble Baroness, Lady O’Grady, on making sure that we enforce the national minimum wage. The national minimum wage has been in force since, I think, 1998. That is a long time for it not to be enforced, and it includes a time when there was a Labour Government. I very much hope that this will be an extra nudge to make sure that it is enforced and HMRC is given very direct instructions to make sure it happens. As the noble Baroness pointed out, the lack of enforcement is very deleterious to getting working class people into work.

On the noble Baroness’s and the Minister’s concern about it creating a revolving door, surely it cannot be beyond the wit of us to work out that, after you have done your four weeks of work experience, you are not allowed to go back or to stay—that is why we have a four-week block. It is useful to carve out a particular role for people who are there just for educational or work experience reasons, which is quite separate from being an intern.

I hope very much that the Minister and the Government will take on board this amendment and these thoughts as they contribute to the effort to stamp out unfair work practices. On that note, I beg leave to withdraw the amendment.

Amendment 129 withdrawn.

Fighting Fraud (Fraud Act 2006 and Digital Fraud Committee Report)

Viscount Colville of Culross Excerpts

Friday 30th June 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I was a member of the Fraud Act 2006 and Digital Fraud Committee, and it was a great privilege to serve with the noble Baroness, Lady Morgan, who so ably chaired it.

The committee was driven by the massive increase in fraud. We discovered that scams are being delivered not only online but through text and messaging services, using ever more sophisticated technology. The new threat is coming from deepfake technology. Only a few weeks ago, a video appeared on Facebook that seemed to be a CNN report, with the CNN logo strapped across the base of the screen. Regional executives of a major bank appeared the video promoting what appeared to be one of their big new funds. They were followed by a succession of customers who said that they had made up to £50,000 each by investing in the fund. The user was then urged to click on a link that facilitated investment into the fund but needed the user’s bank details to do so. Once fraudsters have this information, they can impersonate the user to take out a loan, make a purchase or do any number of fraudulent financial transactions.

The deepfake fraud is just the most up-to-date example of ID fraud. This is one of the first scams to use deepfake technology. The bank executives’ images and voices had been captured from their previous appearances on television and in videos and manipulated to make them appear to be pushing the fund. The bank had a terrible time trying to stop the dissemination of this fraudulent content. It had to play a terrible game of whack-a-mole. As soon as was it was taken down from one Facebook group, it appeared on another. It also appeared in other parts of the internet and went viral on platforms and phone services. Deepfakes are just the latest generation of scams. They are so powerful because the visual medium is still seen as more trustworthy than others. The bank is so concerned that any future video appearances by executives will have to be stamped with a watermark on screen as a means of authentication, which it hopes will make future manipulation of their images more difficult.

The Online Safety Bill will put the onus on user-to-user services to prevent fraudulent content appearing on their platforms, but the growing practice of smishing—sending fraudulent messages to collect personal financial information through text and direct messages—is also worrying law enforcement officers. These scams are increasingly disseminated on SMS and MMS platforms, and so are out of scope of the Online Safety Bill. According to CIFAS, 2022 saw the highest-ever volume of identity fraud cases. They were up by nearly one-quarter from the previous year. Nearly all the cases related to mobile phone products.

In the committee hearings we heard evidence of how criminals are frighteningly ingenious at finding ways to capture a user’s ID, both online and on mobile phones. The fraudsters send messages which often seem innocent enough, such as completing a crossword puzzle or taking part in a survey, all of which involve the user giving away their personal financial details. I recently heard about a victim who received an SMS message giving details of an expected delivery from DHL. When they called the number, they were put through to a fraudulent call centre, which asked for money to be paid for customs duty in order to release the package through Customs and Excise. Fraudsters are even using ID impersonation to break the secure customer authentication service which was set up especially by the banks as a secondary source of verification. They do this by diverting the message which is meant to go to a customer’s number and then take control of it.

CIFAS told me that in the past 12 months, there has been a rise in cybercrime service platforms on the dark web. One of these sites is selling up to 30,000 fake profiles, which can be used to push fraud, at a time. The whole fraud ecosystem is incredibly sophisticated. There are specialist roles for each stage of the fraud. First, there is a fraudster specialising in stealing ID, then another who uses the information to open bank accounts and set up customer profiles, and finally there is a specialist who can siphon off the money to the criminal. It seems to me that the major way of dealing with this is to incentivise platforms and telecoms companies, which are the enablers, to crack down on fraudulent activity online. I wholeheartedly support the attempts by the noble Baroness, Morgan, to extend the “failure to prevent” law to cover more enterprises and more harms but, despite wins on Report on the Economic Crime and Corporate Transparency Bill this week, the Government still seem reluctant to adopt the ideas in her amendments.

I have already mentioned the Online Safety Bill, which leaves so many of the systems which deliver fraud out of scope. Like the noble Baroness, Lady Morgan, I would like to see telecoms companies being held to account. They have already taken some steps to reduce fraud. The committee heard evidence about BT’s spam shield, which is blocking spam messages to users. SIM farms, where a mass of phone numbers can be bought to be used to send fraudulent text messages to tens of thousands of customers, are now being clamped down on but, as the committee’s report states, these current approaches by the telecoms sector are uneven, with counterfraud policies being introduced inconsistently across the sector.

It seems to me that the enabler of the fraud ought to be held responsible, at least in part. The banks are paving the way. The Payment Systems Regulator is already changing the liability for banks whose customers have been involved in fraud. It has set out a path for introducing a 50:50 split between the issuing banks and the bank that accepts the funds on behalf of the fraudster. In July it will consult on the draft legal instruments to put reimbursement requirements in place. The following month, it will consult on the maximum level of reimbursement and guidance on customer gross negligence. By October it hopes to get the final legal instruments to Pay.UK. Early next year, these measures will come into force. The regulator will also demand transparency, the publication of data on how well banks are protecting customers from fraud and the promotion of intelligence sharing.

The telecom companies are also enablers. Either they can take part in a compensation scheme along the lines of the banks or they can, as paragraph 522 of this report suggests, be part of a

“regulatory strategy equivalent to the Online Safety Bill that is directly applicable to telecoms platforms and services”.

In their response to the report, the Government said that, despite progress being made by the industry, more could be done to protect the customers. Instead of supporting a duty to prevent fraud, they suggest that the operators join the voluntary telecoms fraud sector charter. The Government have spent much time ensuring that online platforms are mandated to protect users against fraud. In a world in which fraud is now being delivered increasingly through direct messaging and SMS, why is one sector being mandated to take action while another is allowed to take part in counterfraud action voluntarily?

Security Threat to UK-based Journalists

Viscount Colville of Culross Excerpts

Tuesday 21st February 2023 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer of a made-for-television series about the war in Ukraine. Like other noble Lords, I am appalled to hear about the many kidnap and death threats against journalists in this country for holding the Iranian regime to account. I gather that there were many more than 15. They include journalists in the BBC Persian service, as the noble Baroness, Lady Bonham-Carter, said, who have also been sanctioned and their families in Iran threatened. What plans do the British Government have to continue to raise the issue at the United Nations Human Rights Council in order to bring together an international coalition to put pressure on the Iranian regime to stop these attacks?

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord’s question is really more for the Foreign, Commonwealth and Development Office, but I will make sure that it is reflected back to my colleagues in that department. I would imagine that extensive conversations and negotiations are ongoing on this subject.

Public Order Bill

Viscount Colville of Culross Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, if I had to choose between the two amendments, I would choose Amendment 127A. It is quite important to understand why it is the better version. It is because, as the noble Baroness, Lady Chakrabarti, said, it not only covers the way the police exercise their powers, which is the main target of Amendment 117, but extends to people who are observing the protest itself. That is a very important and significant extension. The way the protest is proceeding is all part of the background against which the other part of the amendment has to be judged, so the broadening in Amendment 127A is rather important.

Another point worth noting is that neither of these amendments uses the word “journalist” in the main text. That is important too: protection is extended to allow other people, for whatever reason, to carry out the exercises referred to. To narrow this down to journalists, which neither amendment seeks to do, would be a mistake. It has to broadened out in the way that both do.

As I have said, however, my main reason for intervening was to explain why I would choose Amendment 127A if I had to choose between the two amendments.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer making a television series on Ukraine.

I was very moved by the speech of my noble friend Lady Boycott and the dedication to journalism that she has shown. I support both Amendment 117 and Amendment 127A. As a television journalist who has reported on protests across the country and the world, I have experienced protesters being suspicious of journalists for fear that their footage would be used by the police to identify and arrest people at a later date. As a result, I have been attacked by protesters and my cameramen have had their cameras grabbed and attempts made to take the tapes or cards.

In many of these cases, particularly in this country, the police have been there to protect us journalists and allow us to do our work reporting on demonstrations, so I am appalled and surprised to hear from my noble friend Lady Boycott that, in recent years, the police in this country have been arresting journalists for doing their job: filming protests. I thought that ECHR Article 10 on the right to freedom of speech would be incentive enough for the police to leave them alone, but clearly not.

This amendment therefore seems necessary to protect journalists going about their business, reporting on protests and the disruptions that they may cause. The problem is that the powers in Clause 2 on locking on seem to be so broadly drawn. It is one thing to arrest people for locking on, but to arrest someone for carrying an object

“with the intention that it may be used”

in connection with that offence seems to give the police power that cannot be right in a democracy. I fear that the words will give them leeway to stop a journalist who is carrying a camera to film the lock-on. Surely even the threat of this happening cannot be allowed. It will have a chilling effect on free speech.

I understand that the police want to be able to arrest protesters who are locking on and filming themselves while doing it, but the wording in this amendment, that

“A constable may not exercise any police power for the principal purpose of preventing … reporting”,


may be an important protection for camera people and journalists covering protests. It protects bona fide journalists.

Clause 11, allowing

“stop and search without suspicion”

in an area near a protest seems to stand against everything I thought Conservatives represented. I always thought it was a driving force behind Conservatism that they wanted to take the state off the backs of individuals. This clause does the opposite. When I talk to people about the possibility of their being stopped without suspicion just because they unwittingly wandered near to a protest, they are aghast. When this possibility is extended to journalists being stopped for going about their business, the threat against free speech posed by this Bill is compounded.

The Government are usually eager to protect journalists and journalism. I suggest to the Minister that, by accepting this amendment he will be striking an important blow for freedom of speech, which is so sorely missing in much of the Bill.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, I had no intention of speaking on this amendment, but I feel I must, because my late husband, Philip Bassett, was an industrial journalist who covered many strikes, most significantly, I suppose, given what we are discussing, the miners’ strike, which the whole team of industrial journalists on the Financial Times covered. If this legislation stands the way the Government have drafted it, people like my late husband, and indeed the team with whom he worked, which included the very eminent journalist, John Lloyd, would have been open to prosecution. As it is, for their coverage of the miners’ strike they won journalist of the year.

Queen’s Speech

Viscount Colville of Culross Excerpts

Thursday 12th May 2022 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I rise to point out the essential contradiction in the Government’s media and digital legislation.

I welcome the Online Safety Bill and look forward to its arrival in this Chamber in the autumn. I am a great supporter of its emphasis on the duty of care to be placed on digital platforms to ensure that they dramatically reduce the dissemination of hate and disinformation online. This will help combat the polarisation and fracturing across our society that has been facilitated, and even generated, for a decade and a half by the platforms’ “attention economy” business model, which is designed to engage and enrage users.

However, the Government need to complement this legislation with massive support for the great institutions that not only combat polarisation with their universality of content but refute disinformation with a mandate to tell the truth: British public service broadcasters. Much of the media Bill and the Government’s Up Next broadcasting White Paper, however, will weaken these bulwarks of the battle for an open society in the digital age.

Like the authors of the Online Safety Bill, I hope it will be a world-beating piece of legislation—a model for other countries to follow. The Government’s acceptance of so many recommendations from the Joint Committee has improved it yet further. However, I fear it still holds a threat to free speech with the vague terms of the clause on

“priority content that … presents a material risk of significant harm to an appreciable number of adults”.

It allows the Secretary of State, in consultation with Ofcom, to use regulations to update the definition of harmful content. As the noble Lord, Lord Stevenson, said, this gives the Minister enormous power to control content that many people would see as offensive but may be part of the debate in a lively democracy. In the aggressive culture wars that divide the western world, it is important not to close down content just because it is offensive. Likewise, the carve-out for journalism is welcome, but it includes content

“generated for the purposes of journalism”.

This might need to be refined or it will allow all users to claim exemption as journalists. Perhaps a public interest defence could be included, as in the Defamation Act.

This legislation needs to go hand in hand with the rapid granting of statutory powers to the new Digital Markets Unit, so I am glad to read the Government’s response to A New Pro-Competition Regime for Digital Markets and the draft digital markets, competition and consumer Bill. The DMU was set up over a year ago after an excoriating report by the Digital Markets Taskforce, which found that the dominance of the big platforms had led to an appalling lack of competition in many digital markets.

The new draft legislation has excellent proposals to enforce binding codes of conduct on large platforms to prevent them crowding out competition. This will be crucial in breaking open the shocking monopolies in the digital advertising market, uncovered by the Digital Markets Taskforce, and will allow news publishers to be paid for their content, giving a much-needed boost to our national and regional legacy media. However, it is only draft legislation. The DMU needs to be empowered to fight for competition online as soon as possible. Every week delayed means that another digital start-up is stifled. Can the Minister tell the House when the Government intend to go beyond the draft Bill and introduce legislation?

These two pieces of legislation on the digital economy will go far in controlling polarisation and disinformation on the internet, but I fear that they are not reinforced by the Government’s media agenda. The Government claim that the reforms suggested for the BBC and Channel 4 in the Up Next White Paper and the media Bill will help make them fit for the digital age. Many of the reforms are welcome. The new prominence regime will ensure that PSB content is easy to find on designated platforms; it has long been called for by the industry. Equally welcome is the regulatory level playing field set out in the Bill for video-on-demand platforms. I look forward to supporting the Government in these important updates to the media regime.

However, I fear that many of the other reforms will damage the power and importance of publicly owned PSBs. The media Bill’s prime purpose is to privatise Channel 4. The central issue is its remit for programming content. The Minister for Digital Infrastructure, Julia Lopez, has promised that the channel’s programming under private owners will remain experimental and innovative and provide news and current affairs, which are central to the role of PSBs in the internet age.

Investigative journalism, however, is risky and expensive to produce. Programmes such as Channel 4’s “Dispatches” and “Unreported World”, as well as the hour-long news in prime time, must be preserved by the new owners. Noble Lords have only to look at the schedules of the commercial PSBs to see that shareholders’ demands mean that content is safe and guaranteed to reach a big audience. In the interest of universality, it is important that the core programming remit includes news and current affairs, shown on the main channel. I worry that, in offering

“our public service broadcasters more flexibility in terms of how they deliver their obligations”,

the White Paper will allow them to hive off public service programmes to obscure digital channels.

The Up Next White Paper will require the new owners to commission a minimal volume of programming from independent producers, especially in the regions and nations. As pointed out by the noble Baroness, Lady Bonham-Carter, there is a big danger that that remit will be reduced to make the channel more attractive to new buyers. As the noble Baroness also said, there has to be a remit for spending on training in the industry, which is crying out for skilled workers. How does this fit in with the Government’s levelling-up agenda?

Likewise, the Government say they are supporting the BBC, the essential mission of which is to provide universal, available and reliable information; yet, after 30% cuts over the last 10 years and a 2% freeze in the licence fee, this measure can only further damage the corporation’s core mission. The BBC is at a tipping point, where it just does not have the money to provide an eclectic enough range of content to be universal. I urge the Government to ensure that the BBC is put on the firmest financial footing, so that it remains a British beacon of reliable content in the rough seas of the internet. This country deserves an internet bound by a duty of care to its users and complemented by the PSB sector, which should be dedicated to giving reliable information and education to all the people of Britain and of the world.

Police, Crime, Sentencing and Courts Bill

Viscount Colville of Culross Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Coaker (Lab)]

Whatever: they will have been on various demonstrations. Whether they were on behalf of the Countryside Alliance or not, the principle would have been the same and noise would have been a part of them. Has democracy collapsed in the face of noisy protests over the last couple of centuries? It has not. At some of the protests that I have been on—and, I am sure, at those that many noble Lords have been on—the noise has been phenomenal. It has been part of the object of them. Never have any Government of any colour sought to ban protests on the basis of noise or to put conditions on the basis of noise.

Protests are noisy—whether it is local families protesting the closure of a leisure centre or a march in front of this Parliament, protests make noise. The more well attended a protest is, the more popular support an issue has, in general, the noisier it will be. These clauses do not restrict protests for being violent or out of control or for causing damage; these are peaceful protests, but they can be restricted because somebody, in someone’s mind, is too noisy. The clause provides that a protest can trigger these conditions if the noise generated might cause

“serious unease, alarm or distress”.

It is an exceptionally low and vague threshold, as many noble Lords pointed out in Committee.

The Government have sought to do something about that. They have recognised it and thought, “This is a bit of a problem; they are quite right about some of the vagueness of this and about some of the definitions”, so the Government have brought forward a series of amendments, which are in this group. Without reading this to noble Lords—because they can read it for themselves—we can look at proposed new subsection (2ZC) in government Amendment 116, I will just leave this open and hanging in the air. If that clarifies what “noisy” means in the context of a protest, when it talks about people connected to organisations in the vicinity,

“not being reasonably able, for a prolonged period of time, to carry on”

their activities, the courts are going to have a field day. That is the clarification; that is the way in which the Government seek to do something about it. Even the Government recognise that vagueness is a problem. They are trying to do something about vagueness with a clarification that is equally vague, but which allows them to say that they have tried to address the problems raised in Committee.

Of course, the Government always have to balance protests with the rights of people to go about their lawful business. Balance is always important, but the right to protest in this country has never, ever had to have a condition placed upon it that is about noise. It never has. The noise generated at protests that I have been on has been immense, but never have the Government turned round or panicked and said that they needed to impose conditions on that in some way in order to do something about the protests. These are very serious amendments that we have put forward. These are very serious debates that will take place from now on, on the existing clauses and then on the new clauses. They involve the fundamental right of people to protest. Making noise is a fundamental part of the freedom to protest properly in a democracy.

[Viscount Colville of Culross (CB)]

My Lords, I also put my name to Amendments 115 and 123, because I am still concerned about the Minister’s assurance in Committee on Clauses 56 and 57 that the threshold for the police to impose these conditions on noise would be very high. However, the threshold in Clause 56(3) that the noise caused by protesters could cause reasonably firm people to suffer serious unease seems subjective, and a low threshold. I fear that it will put the police in an invidious position.

I refer the House to the JCHR report recommendations on these clauses. It says:

“Using multiple terms that are open to wide interpretation, such as ‘intensity’ and ‘serious unease’, leaves an excessive degree of judgment in the hands of a police officer … It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.”


I urge your Lordships to support Amendments 115 and 123.

--- Later in debate ---

Moved by

[Viscount Colville of Culross]

133A: Clause 59, page 54, line 12, at end insert “unless permission for such obstruction has been given by the relevant person”

[Viscount Colville of Culross (CB)]

My Lords, I hope we are all refreshed after that break, particularly the Minister. I thank her for giving the time and energy to meet me last week to consider my objections to Clause 59.

I have brought Amendments 133A and 133B before the House because Clause 59 has been too tightly drawn. It will prohibit large, peaceful and well-organised demonstrations taking place in Parliament Square at any time, even at the weekend, if there was any danger that the weight of numbers would obstruct a vehicle going into Parliament or even, in the words of the clause, make

“the passage of a vehicle more difficult”.

Parliament Square is the temple of protest. It is where the people of this country have gathered for centuries to voice their opposition to government policies, hoping their concerns will penetrate the walls of Parliament. In 2002, more than 400,000 people attended the countryside march. In 2018 and 2019, millions came to the People’s Vote and Brexit day celebration marches, and the women’s march drew thousands to support women’s rights. All ended with massed but organised protests in Parliament Square, all of which, by dint of huge numbers, will have obstructed the vehicle entrances to Parliament. I ask your Lordships to imagine the fury on all sides of the country if these were banned in future.

This is the mother of parliaments, outside which voters should gather to speak truth to power and where we, the parliamentarians who make the law, should hear them loud and clear. At this time, when politicians are seen to be out of touch with the feelings of the people, it is unconscionable that the House should pass a law shielding us from hearing what they have to say. A new poll shows that 79% of people disapprove of a ban, and 75% of them are Conservative voters.

The problem is that Clause 59, as with so much of Part 3 on public order, has been drafted to deal with the headlines about Extinction Rebellion and Insulate Britain deliberately blocking roads and bridges across the country and deliberately obstructing access to Parliament. The drafters have not considered the effect of the clause on large, peaceful protests outside Parliament.

I feel sure that many noble Lords have held protests outside Parliament and understand that permission first needs to be obtained from the GLA and the police. As it stands, the clause will make it impossible for the GLA, which controls the garden at the centre of Parliament Square, to give permission for any protest to take place if there is a danger of obstruction to Parliament by large numbers of protesters. The clause expands the controlled area beyond the garden to the roads and pavements of Parliament Square and half way up Whitehall, to the entrance of Downing Street. When granting permission, the GLA will now have to consider whether numbers of protesters will spill off the garden on to the road. The GLA considers 5,000 people to be the capacity of the garden. Any more will block the roads around Parliament Square.

These amendments are aimed purely at the permissions process between the GLA, other responsible bodies and the organisers of a protest. They are based on the existing wording granting the use of amplifying equipment in the square. They will ensure that large, peaceful protests continue to take place outside Parliament. I know that noble Lords will be worried that the wording of my amendments appears to give permission to protesters to obstruct vehicles; this is not the case. The police will still be involved in the consent process, requiring protesters to move on if they are deliberately blocking entrances to Parliament. Proposed new subsection (6) in Amendment 133B reinforces this by allowing the responsible person to withdraw an authorisation for a protest if the conditions are not being observed.

The Government and the Joint Committee on Human Rights are concerned that the police do not have powers to move on demonstrators who deliberately block access to Parliament. Even if these amendments are accepted, the powers granted in Clause 59 will still be available for the police to exercise. I urge the Minister to accept my amendments to ensure that Clause 59 does not cause an unintended ban on protests in Parliament Square. I know from talking to her that she does not want to become the Minister who bans protests outside Parliament. I beg to move.

[Lord Paddick (LD)]

My Lords, we support all the non-government amendments in this group. In particular, we agree that, just as protesters can be given permission to use amplification equipment in the vicinity of Parliament under existing legislation, large demonstrations should be able to block roads temporarily, given the necessary permission. We will vote for Amendments 133A and 133B should the noble Viscount, Lord Colville of Culross, divide the House.

In Committee, I spoke at length on why we oppose this clause and support Amendment 137A. I refer noble Lords to the Official Report.

--- Later in debate ---

This House plays a vital role as a revising Chamber, but Amendments 134, 135 and 140 adopt rather a blunderbuss approach to these clauses, simply seeking to strike them wholesale from the Bill. Were these amendments to be agreed by noble Lords, the effect would be to send a signal that it was acceptable to prevent noble Lords accessing this place and that your Lordships’ House did not support well-argued recommendations from the Law Commission to simplify and clarify the law. I invite noble Lords to reject Amendments 134, 135 and 140 and support the government amendments. On Amendments 133A and 133B, I hope that I have been able to persuade the noble Viscount, Lord Colville, that it will still very much be possible for protests to take place in the vicinity of Parliament—as it should be—and that he will withdraw his amendment.

[Viscount Colville of Culross (CB)]

I thank those from all over the House who have supported this amendment. I hope the Minister will listen very carefully to the concerns of the noble Baroness, Lady Altmann, about the sort of example we are setting to the refugees from Hong Kong, for instance.

I have listened very carefully to the words of the Minister who claims that this clause will not cause any problems for giving permission for large protests on Parliament Square. The lawyers I have talked to have said that the GLA will, under the by-law, particularly since it is now having to look at this extended area around the garden, have to take into account the sheer numbers and the effect of those numbers on obstructing vehicles. If there are half a million people taking part in a protest, inevitably they are going to obstruct vehicles, whether they mean to or not—of course they are. The GLA, I suppose, could cordon off the whole garden so that protesters could not go on to it, but it would make a bit of a nonsense and I do not think that is what the people of this country would want. Therefore, I would still like this amendment to be part of the Bill and I therefore want to test the opinion of the House.

--- Later in debate ---

Moved by

[Viscount Colville of Culross]

133B: Clause 59, page 54, line 32, at end insert—
“(3A) After section 143 insert—“143A Authorisation (1) The responsible person for any land in the Palace of Westminster controlled area may authorise a person to carry out in accordance with this section an activity that will obstruct the passage of a vehicle of any description into or from the Parliamentary Estate while on or adjoining the Palace of Westminster controlled area.(2) An application for the authorisation must be made by or on behalf of the person (or persons) seeking the authorisation.(3) The responsible person may— (a) determine the form in which and the manner in which an application is to be made; (b) specify the information to be provided in connection with an application;(c) require a fee to be paid for determining the application.(4) If an application is made to a responsible person, the person must—(a) determine the application, and(b) give notice in writing to the applicant of the person’s decision within the period of 21 days beginning with the day the person receives the application.(5) The notice must specify—(a) the person or persons authorised (whether by name or description),(b) the nature of the activity that is to be permitted,(c) the period to which the authorisation applies, and(d) any conditions to which the authorisation is subject.(6) The responsible person may at any time withdraw an authorisation if the conditions to which it is subject are not being observed by giving notice in writing to the applicant.””

Police, Crime, Sentencing and Courts Bill

Viscount Colville of Culross Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I may be able to tone down some of the hyperbole. Let’s go back to first principles on what this Bill is about. I think we are all united in this country in support of our right to protest. That is a very precious right that we all feel strongly about. Nobody wants to put that at risk and nobody is trying to put that at risk.

In a world which is becoming more divided, with people having very strong, trenchant positions in the views they adopt, we are trying to ensure that it is possible for people to express their views in a way which does not undermine some of the other social norms in our society which allow us to disagree but be united at the same time. Over the last few years, we have seen a new fashion of protest which is carried out in a way that is unacceptable to other people in its disruption; whether they agree with the matter in question or not is almost irrelevant. We need to try—I believe this is what the Government are trying to do through this Bill—to make it possible for protests to continue in a way which does not divide society further.

I do not support the amendments, but I agree with one point, made earlier by the noble Lord, Lord Dubs. We have to be very careful on the issue of noise. It is impossible for people to protest silently and I will look to the Government for reassurance on that matter when the Minister comes to respond.

Let’s not forget what we are trying to do here: allow people to disagree in a way which does not divide us further. I worry that some of these amendments will perpetuate a division which we do not want to see happen in this country.

[Viscount Colville of Culross (CB)]

I rise to support Amendments 294 and 298 because I believe that Clauses 55 and 56, which introduce noise triggers for public demonstrations and assemblies, are fundamentally undemocratic and will have a detrimental effect on free speech in England and Wales. I apologise that I was not able to speak at Second Reading, but I was unable to attend the House on that day.

I have always thought of the Conservative Party as supporters of free speech, so I am disappointed that this Government seek to take that right away through these clauses. I repeat the quote from Jules Carey that the noble Lord, Lord Dubs, gave that this is

“an existential threat to the right to protest.”

Of course, these clauses are a response to the outrage at BLM, Extinction Rebellion and Insulate Britain protests which have been incredibly disruptive to the lives of thousands of people across the country and especially in London. But the blocking of highways was always illegal under the Highways Act and the existing triggers in the Public Order Act 1986 can be harnessed by the police to control the other protests. The House will debate the new draconian measures the Government plan to introduce later which, as was mentioned at the beginning of today’s Committee debate, seems to be a poor way to treat the House.

The introduction of noise as a criterion for the police limiting or stopping protests and assemblies seems to me an unnecessary and damaging extension of police powers. The factsheet for the Bill promises that the police will use the noise trigger only

“where it is deemed necessary and proportionate.”

But “proportionate” must be subjective as a threshold for the trigger.

Data Protection Bill [HL]

Viscount Colville of Culross Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I am going to deal with my concerns about how the Bill might affect journalism and free speech. I declare my interest as a series producer at ITN Productions.

In the fast-changing world of the digital revolution, it is beholden on noble Lords to be vigilant about the way in which our personal data is now so readily available to so many people to be processed in so many ways, more than many of us ever conceived. I am glad that the GDPR has been brought forward and that this Bill protects further the availability and use of personal information. However, I am concerned that these new privacy rights will be balanced with further limitations on the freedom of the press and the ability of journalists to carry out investigative journalism in the public interest, which I believe was one of the original aims of the Data Protection Act 1998.

At the moment, data protection legislation is being used to control unwelcome exposure of incriminating personal information by journalists. We have seen cases such as that of Prince Moulay v Elaph Publishing, in which the original case for defamation was thrown out as not libellous, only for the Prince to instigate proceedings for the incriminating information against him to be removed from the public sphere using data protection law, despite the intention of the original Act being that there should be an exemption for journalism.

I understand the sentiment behind the “right to be forgotten” clause. Of course, many people want their youthful indiscretions to be forgotten and, for most, it is important that they should be. This concept is based on the Costeja v Google Spain case, which stopped links being made to personal information in search results. However, the courts are now being tested to see whether the original information itself can be suppressed.

In the age of fake news, it has never been more important to be able to go back to source material to check original data against more recent updates and deletions. Noble Lords will have heard of click bait, where sites are specifically set up to shock with false information to attract eyeballs—as they call them in the industry—and make money from the resultant advertising. Noble Lords must not suppress the means to refute such fake news and ascertain the truth.

So I am very pleased that GDPR article 17 has an exemption for publication of data for free speech and the holding of archives in the public interest, further safeguarded in article 89. However, Clause 18, which indeed provides welcome protection for many archives held in the public interest—for instance, those for historical, scientific and statistical purposes—does give protection to cover media archives.

My concern is that past media articles are an important source for verifying information. They might hold reports of criminal convictions of the person or information about a politician’s past which, years later, when they are trying to stand for office, might prove embarrassing but informative for voters. Surely business people, voters and many others should have full access to the information in those archives, whether it is embarrassing or not. This information helps them to shape a fuller profile of the person whose reputation they are trying to assess.

In the digital age, there are millions of opinions, but refuting falsehoods or discovering the truth has never been more difficult. The only way to do that is through source material on trusted websites or archives, where the information has been mediated and checked. I suggest that websites holding archives of trusted media organisations should be protected by and covered in the Bill. The inherent public interest in such archives should be explicitly recognised, as provided in the GDPR.

I am pleased that there is an exemption for data processing for journalism in Schedule 2, part 5, paragraph 24. However, in sub-paragraph (2), there is concern that the exemption applies only when the processing of data is used for journalism. If this information, once it has been gathered for journalism, is subsequently used by the regulators or the police, the use of the word “only” will negate that exemption. I ask the Minister to look at that again.

I am also concerned about the extension of the powers of the ICO prior to publication to examine whether information is exempt from data protection provisions because it is being processed for journalism. GDPR article 6 contains an obligation to consult the Information Commissioner, but Clause 164 goes much further. It enhances the power of the ICO to examine the application of the exemptions for journalism prior to publication and unilaterally second-guess editorial decisions made in respect of the provisions in the Bill.

This means that if a journalist is investigating, for instance, people smugglers, involving undercover filming or subterfuge which is deemed to create a high risk to data subjects, the ICO can intervene prior to publication. The commissioner has the power to apply their objective view to the claim, which might overwrite and disregard the reasonable view of an editor. The ICO might, for example, call for the individual being investigated to be notified in advance that their data is being used, or that they should be given access to additional data being held about them as part of the journalistic investigation.

In my view, this is not even consistent with the terms of journalistic exemption. It would result in investigative journalism being delayed or even stopped until the ICO has examined it for compliance with part of the Act prior to publication. The provision could act as a form of censorship. The existing right of the editor to decide whether the story should go ahead in the public interest will therefore be eroded. I suggest that Clause 164 should be amended to ensure that investigative journalism is not chilled by the extension of powers of intervention by the ICO prior to publication.

Finally, I am concerned that there is no time limit on the right to sue in respect of information processed for special purposes, which continues to be retained or published in the media archive. Under the Defamation Act, that limitation was one year from the date of publication. Under this Bill, there is no limitation. Surely, if information is inaccurate, the complainant should sue within a specific period. The longer the case is delayed from the original publication date, the more difficult it is to refute the allegations. The journalist could move on, contact with the original source material might be lost, memories blurred and notes, even those held digitally, mislaid. Complainants must have the right to complain, but there must be a balance with the time period when that can be done. A failure to have a period of limitation will surely be a chilling effect on the publication of information.

I welcome this Bill as an important advance in protecting privacy in the digital age, but I am concerned that some of its provisions do not yet strike the right balance between privacy and free speech. I ask the Minister to take my concerns seriously.

Investigatory Powers Bill

Viscount Colville of Culross Excerpts

Monday 27th June 2016 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a producer at the BBC. I congratulate the Government on bringing this Bill before the House. Like most noble Lords I recognise that the security services need up-to-date powers in their technological battle against terrorism and criminality, and I am pleased that these extraordinary powers of surveillance will now have judicial control. I am sure that the interception of digital communications will help prevent much terrorism and that many criminals will be convicted using the evidence collected.

However, there is a whole area of information gathering which must be safeguarded by privilege. Noble Lords have spoken about the importance of privileged information between lawyers and their clients and between MPs and their constituents, so it is not surprising that as a journalist I want to put the case for extending the privilege of safeguarding journalists’ sources of information. I look forward very much to the debate in this House on defining what is serious journalism, and who and what information should come under journalistic privilege.

I appreciate that the Government inserted an amendment into the Bill in the other place requiring the judicial commissioner to have regard to the public interest consideration for requests to investigate communications data for a source of journalistic information, but I fear that this privilege is far too specific. It applies only to requests to search directly for “journalistic sources” and from only one power in this Bill: that of communications data. But there are many other powers in the Bill which could directly or indirectly identify a source. I should like the Bill to extend the public interest consideration for any request to access journalists’ data to cover other methods of surveillance, including the accessing of internet connection records and equipment interference, both of which could identify whistleblowers.

I very much appreciate the powers in the Police and Criminal Evidence Act 1984 which allowed notification to journalists and media organisations of requests to access journalists’ notebooks so that they can respond to those requests. I would like the Bill to mirror those powers in some way and to extend that notification to cover some warrants to access journalists’ data so that they and the media organisations can make representations to protect their sources. I know only too well from my own experience and that of colleagues how important it is to guarantee protection for sources when uncovering cases of wrongdoing. I am certain that in many cases we would not have the information unless the sources were convinced that they were safe from having their identity revealed to their bosses or other authorities when reporting cases of wrongdoing.

I have been speaking to a number of my colleagues who have been involved in extraordinary investigations whose publication has shocked the nation and led to changes in the law and policy, and huge reforms to the institutions that have been investigated. Two stand out for me: the “Panorama” investigations by my colleagues at the BBC into Winterbourne View care home and the Medway Secure Training Centre, both of which have been mentioned many time in your Lordships’ House.

Winterbourne View was a care home, commissioned by the NHS and managed by private providers, to care for adults with learning difficulties. The “Panorama” investigation revealed that a lack of leadership led to a regime of barbarity against the patients. I fear that, unless the programme had been broadcast, nothing would have happened to address this abuse. Margaret Flynn in her report on the home said:

“There is no evidence that the written complaints of patients were addressed … managers did not deal with unprofessional practices at Winterbourne View Hospital. Absconding patients, the concerns of their relatives, requests to be removed and escalating self-injurious behaviour were not perceived as evidence of failing service. The documented concerns of whistleblowers made no difference in an unnoticing environment”.

There were 29 contacts with the police and eight incidents of staff violence on patients were reported, with only one prosecution. The police now admit to over reliance on information from hospital management. For years, nothing was done to deal with the underlying abuse. In desperation, whistleblowers went to my colleagues at the BBC. One was later named, but others have not been to this day. Their determination to remain anonymous is not surprising, as they know that they would never work again in the industry if their names were released—but the information they gave meant that, finally, something was done to change the regime and safeguard the patients. During the “Panorama” investigation, whistleblowers were able to build up a relationship of trust with the journalists. That trust was predicated on the conviction that the authorities would not be able to identify who they were.

Likewise, whistleblowers were essential to uncovering the abuse of young men jailed at the Medway Secure Training Centre, run by a private company for the Ministry of Justice. An independent panel to investigate the centre has revealed that over seven years 35 written warnings about the regime at the centre were not acted on by the National Youth Justice Board. Once again, in desperation whistleblowers contacted my colleagues on “Panorama”. Some had previously gone to the authorities to complain and no action had been taken; others contacted the journalists directly. For most of them, and certainly the main whistleblower, whose name is still not known, the only basis on which they went to the journalist was the promise that nobody would ever be able to identify them. Their testimony and the subsequent secret filming revealed a regime of extreme barbarity against the young men at the centre, which brutalised them—the very opposite of what the centre was supposed to do. The mother of one inmate, Billy, said, “My boy is no angel, he is difficult, but this is going to make it worse”.

As a result of the Winterbourne View investigation and others into care and disability units across the country, the Care Quality Commission was reconfigured and the charge of corporate neglect entered our statutes. Safeguards for people in these units have been established across the country. As a result of the Medway exposures there have been parliamentary debates, at least 10 arrests, guards have been suspended and the unit director has resigned. G4S has announced that it is selling off its children’s services and the centre has been nationalised. These cases are proof of the extraordinary role that whistleblowers can play in revealing wrongdoing and changing our country’s landscape. As my colleague Joe Plomin, the journalist behind these stories, told me:

“We threaten the confidence with which whistleblowers contact me at our peril—how will we as journalists prevent the abuse of children or disabled people or others in future where all authorities including the police have allegedly failed, if whistleblowers feel unable to safely, securely contact us? Our democracy, all of our safety depends on people being able to speak to us where all else has failed”.

I ask your Lordships’ House to do everything possible to ensure that this Bill guarantees their secrecy and allows journalists to explain to the judge the public interest reason for that secrecy to be continued. This need is reinforced by the many occasions when the authorities, and especially the police, secretly obtained journalists’ records. The report of the Interception of Communications Commissioner’s Office in 2015 into the use of Chapter II of Part 1 of the Regulation of Investigatory Powers Act to identify journalistic sources showed that police had secretly obtained the phone records of 82 journalists over a three-year period to find confidential sources. It said:

“Generally speaking the police forces did not give the question of necessity, proportionality and collateral intrusion sufficient consideration. They focused on privacy considerations … and did not give due consideration to freedom of speech … The current Home Office Code of Practice (and the recently revised draft Code said to provide protection for sensitive professions) do not provide adequate safeguards to protect journalistic sources or prevent unnecessary or disproportionate intrusions”.

I, like all noble Lords, have the highest regard for our forces of law and order. I am sure that they will think that they have compelling reasons for investigating a journalist’s records, but I would like a judge to decide whether the reasons are in the public interest. It is important that the judge, deciding on a warrant for journalists’ data, should have to notify them so that they can at least put their case for the need for the absolute confidentiality of sources to be maintained.