Investigatory Powers Bill

Baroness Hollins Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

Moved by

[Baroness Hollins]

15: Clause 8, page 7, line 10, leave out “D” and insert “C”

[Baroness Hollins (CB)]

My Lords, I will speak to all the amendments in my name in this group. The main one, Amendment 18, which inserts a new clause, is slightly revised from the version that was debated in Committee on 11 July. The feeling of the House then was that this should be brought back on Report and it was clear that I would seek to test the opinion of the House if there had been no progress by this stage. I am grateful to the Minister for meeting me and other noble Lords, including some of those engaged in 2013 with the Enterprise and Regulatory Reform Bill, the Defamation Bill and the Crime and Courts Bill, to discuss this matter,

The amendments have two functions. First, Amendments 15 to 17 amend the statutory tort in Clause 8 for interception of communications previously available under Section 1(3) of RIPA by making it applicable for use by victims of phone hacking or email hacking undertaken by third parties such as newspapers. The primary purpose of Amendment 18 is to provide costs protection in court cases for claimants as well as for Leveson-regulated news publishers with respect to these claims. The protection intended is equivalent to that which would exist for such claims had the Government commenced Section 40 of the Crime and Courts Act 2013. There has been no explanation to Parliament as to why the former Culture Secretary announced last October at a meeting of newspaper editors that he was not minded to commence Section 40. That represents a change of government policy, which both breaks the cross-party agreement and betrays promises made to both Houses and to press abuse victims.

As very brief background, I remind noble Lords that after the Leveson inquiry, to which my family and I gave evidence, Sir Brian Leveson recommended that any new regulator set up by the press should be accredited as independent and effective by an independent recognition panel, which would be wholly separate from Parliament and the industry. This panel was to be set up by royal charter rather than by statute, essentially as a concession to the press. His recommendations also dealt with how to provide incentives for newspapers to join an accredited self-regulator, since it was clear that press owners would not volunteer for effective and independent regulation, and how to provide access to the courts for press victims facing a deep-pocketed defendant. The Government accepted those recommendations but have failed to implement them.

Section 40 of the Crime and Courts Act would deliver those incentives and that access to justice. It should have been commenced before the exemplary damages sections, which were commenced automatically a year ago. The intention of the signatories to this amendment is to persuade the Government to commence Section 40 of the 2013 Act and to do so without delay. Naturally, if the Minister can reassure the House that Section 40 will be commenced before Third Reading, the amendment will not be pressed. I beg to move.

[Baroness O'Neill of Bengarve (CB)]

My Lords, earlier this afternoon in Amendment 10, the House accepted the principle of protection for journalistic sources. That seems very important, for reasons which I will not spell out but are well known. My noble friend’s amendments, in particular Amendment 18, propose a modest measure to balance Amendment 10 and I will try to explain why I think some balancing is necessary.

Noble Lords will note, as my noble friend has set out, that Parliament has already agreed a more extensive way of balancing this privilege for journalists with a comparable restriction. It was in Section 40 of the Crime and Courts Act 2013 but that section—we must remember that the principle has received cross-party support—has not been commenced. I do not comment on the reasons. The amendment cannot entirely remedy that oversight but it can go some way to balance the additional powers and protection given to journalistic activity, in the clause that we agreed earlier this afternoon, by limiting the costs against their misuse—by the media, that is, which refuse to be audited by an approved regulator.

The point is fundamentally simple: protecting journalistic sources is a profoundly important liberal purpose but the misuse of those sources, whether by invention, illegal interception of private communication or forms of blackmail and the like is not a good liberal cause. I believe that we need to balance this additional protection for journalistic sources with additional protection for those who are abused by journalists—or those posing as journalists—and then claim that the source was only invented or misrepresented, or that the information was obtained by criminal means. Those positions need to be not protected but audited. The new clause would achieve most of that purpose. It cannot achieve it all but, like my noble friend, I look forward very much to hearing what the Minister can tell us about progress on the possible implementation of Section 40 of the Crime and Courts Act, which would render this move redundant.

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[Baroness Hollins]

My Lords, I thank noble Lords for their support and understanding. I am, frankly, unconvinced by the Minister’s words. The Public Bill Office agreed the amendment as within the scope of the Bill. I am not just frustrated at the delay to commence Section 40; I am somewhat dismayed that Ministers are not yet up to speed on this issue. Perhaps I can help by briefly reviewing some of the past assurances and agreements.

Section 40 of the Crime and Courts Act was part of a package. This agreement was reached in March 2013, to avoid the Government being defeated in both Houses over delays in implementing the Leveson recommendations. We are being asked to consider a further delay. As the noble and learned Lord, Lord Wallace, reminded us, several other Bills were not then amended. I will not go through them again because I appreciate that time is short in this House. The amendment does nothing to weaken this Bill or affect security measures in any way. All the Government need to do is honour their commitment and commence Section 40. So many times over the past three years we have heard assurances that have come to nothing. It would be an injustice to victims if I passed up this chance to progress the intentions previously enshrined in the Crime and Courts Bill. Peers would not need to use this Bill to do the job if the Government had not used the device of non-commencement.

I assure noble Lords that I strongly support a free press, but freedom comes with responsibilities and claimants have rights, too. I would like to test the opinion of the House.

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Moved by

[Baroness Hollins]

16: Clause 8, page 7, line 18, leave out subsection (4)

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Moved by

[Baroness Hollins]

18: After Clause 8, insert the following new Clause—
“Interception without lawful authority: award of costs
(1) This section applies where—(a) a claim is made under section 8 (civil liability for certain unlawful interceptions) against a person (“the defendant”),(b) the defendant was a relevant publisher at the material time, and(c) the claim is related to the publication of news-related material.(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.(4) This section is not to be read as limiting any power to make rules of court.(5) This section does not apply until such time as a body is first recognised as an approved regulator.(6) Subsections (2) and (3) shall apply to any claim issued after this section comes into force. (7) For the purposes of this section “approved regulator” shall have the same meaning as in section 42 of the Crime and Courts Act 2013, and “relevant publisher” shall have the same meaning as in section 41 of that Act.”