Crime and Courts Bill [HL]

Lord Allan of Hallam Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Inglewood]

My Lords, I should like to address a few remarks to my noble friend Lord McNally about the general scheme behind the provisions in the Bill on which he has to some extent helpfully elaborated already. In so doing, I shall go on from where the noble Lord, Lord Soley, left off when talking about changes in the digital world. At the start I declare an interest as chairman of the Cumbrian Newspaper Group, but I am not going to talk about any of those interests at all. However, noble Lords may know that I am also chairman of the Communications Committee of this House. I do not want to breach any confidence, but at one o’clock in the morning this coming Wednesday, the committee will publish a report on digital convergence. A substantial part of that report deals with issues around the topic we are discussing today.

I think I am allowed to say in public that one of the things the committee was very interested in is the phenomenon known as television-like material as defined in the European Union audiovisual media services directive. This is material which can be viewed through an internet protocol television set but it is not broadcast and it is not a website. Your Lordships will be aware of this service because my noble friend Lord Dobbs has just had a great hit on Netflix, which is an example of one of these businesses. It is a fast-growing and significant part of the media landscape. In the committee’s view, because of the way that regulation is being proposed for broadcasting, the press and websites, TV-like material falls completely outwith the various definitions and so is not going to be caught. The committee does not think that that is the right way to proceed.

I turn first to the specific provisions of the Crime and Courts Bill and the amendments we are discussing. In addition, looking at the structure of the draft royal charter, it seems that embracing TV-like material of the kind I have described is only going to be possible, in the words of the noble Baroness, Lady Kennedy, if the entrenched law can be amended. Is it wise to start off with a big lacuna in the scheme; that is, before the draft charter has even got on to the statute book?

I am not here to make any further point than to draw the attention of the House to what the committee considers to be a potential problem with the overall scheme of regulation in this area. If the provisions as currently drafted go forward, they will leave a hole through which people may be able to drive and coach and six.

[Lord Allan of Hallam]

My Lords, I want to make some similar points to those just made by the noble Lord, Lord Inglewood, and in doing so I should like to declare an interest. I work for Facebook, which is a website operator. The points around definition have been made effectively in the scope of the amendments and in the comments of my noble friend Lord Lucas. They exemplify how hard it is to define anything in this area. As the noble Lord, Lord Inglewood, and his committee have found in trying to draw out these definitions, the more one goes into it, the more one finds that in many cases it is an imprecise science. It is hard to define precisely what it is one intends to regulate and does not intend to regulate.

The comments of my noble friend Lord McNally were extremely helpful in clarifying the Government’s intention not to include a wide range of services or individual activities within scope and I picked up on two particular phrases that he used. The first was “press-like” and the clear intention to regulate such services, and the second was “future-proof”, in that these provisions should be future-proofed. Subsection (7) of the proposed new clause set out in Amendment 19 refers to the concept of “News-related material”, but nowhere does it talk about the format of that material. Referring to the point made by the noble Lord, Lord Inglewood, it seems on first reading that “TV-like” and “radio-like” services would be covered. The new schedule set out in Amendment 131 provides an exemption for those who are licensed under the Broadcasting Acts, but again what we see increasingly is the ability to launch services over the internet that are TV-like and radio-like, but where no licence is required. If the legislation is to be future-proofed, it is important to understand whether it is the Government’s intention to restrict this to services that we would regard as being press-like today—most people in common parlance would understand that as being primarily the printed word—or if in the future someone launches a video or audio channel that consists primarily of news-related material—the new online TV-type and radio-type services—it is intended that it should be included in the scheme we are debating today. This is an important clarification for the increasing number of businesses and individuals who would like to move into this field of activity and for the increasing number of consumers who would like to receive their news through these new channels rather than the traditional ones.

[Lord Stevenson of Balmacara]

My Lords, I am grateful to all noble Lords for participating in this debate, which has echoed a number of occasions on which we have been able to touch on these topics in the context of several Bills over recent months. We have not always stood opposite the noble Lord, Lord McNally, although he has been quite strong, particularly as we saw his cherished Defamation Bill begin to slip away from him. However, I think I see it looming in the background, and the noble Lord has cheered up again, which is nice. We also touched on them in the Enterprise and Regulatory Reform Bill, where we did a great deal of work with the excellent amendments tabled by the noble Lord, Lord Skidelsky. They were not moved, but they certainly raised the issues that we are considering today. Of course, we now have the Crime and Courts Bill before us, so there is endless flexibility, and long may that last. I should like particularly to thank the noble Lord, Lord Skidelsky, who has been tireless in tabling amendments that give effect to the detail of the Leveson recommendations and reinforce the fact that the royal charter and its statutory underpinning have been agreed by all three parties in an historic agreement.

We need to recognise that the debate on Leveson has moved on. The most important thing now is to be clear on what the government amendments intend to do and avoid any unnecessary scaremongering. I shall focus on a number of the amendments before us and, like the noble Lord, Lord Skidelsky, I should like the Minister to comment on how he intends to respond to them.

My first strand is on exemplary damages, but I have been sufficiently warned off by the noble Lord, Lord Phillips, even to go down this route. However, there are a couple of points that I would like the Minister to respond to. I understand that a considerable amount of time was spent in the all-party talks on the question of what happens to damages when it transpires that the facts of a case have changed in that the court has facts which were not available to the regulator. Can the Minister help us on this issue as it has happened in recent months? Can he confirm that this is a matter which will be returned to?

Amendment 11C clarifies that the common law gateway for exemplary damages will not apply. Can the Minister confirm that the “for profit” test is not required if the “outrageous” test is met? Amendment 11D makes it clear that a relevant publisher will be vicariously liable for wrongdoing by an employee or a person contracted to work for a publisher which results in liability for exemplary damages in accordance with the ordinary common law tests. Can the Minister confirm that further work will be done on this question? It is a key issue that is dealt with succinctly in the amendment tabled by the noble Lord, Lord Skidelsky. Vicarious liability bears on the morality and culture of the press. It is important that the Government should put on the record today that they agree with the noble Lord, Lord Skidelsky, and that they intend to return to this issue in the Commons to the extent that this may be required. The recent history, after all, shows that it matters. We do not want a situation where publishers literally have a get-out-of-jail-free card, and it would be strange if the media were to be in a privileged position in relation to vicarious liability compared with all other interests in this country. Lastly in this group, Amendment 13A is intended to reassure small publishers that, in deciding the amount of exemplary damages, the court will have regard to the means of the defendant. Can the Minister confirm that the Government will return to this issue when it is considered again in the Commons?

The second group of amendments that I would like to look at contains those amendments that are intended to make it clear that to benefit from cost protection the publisher would have to participate in the self-regulator’s arbitral scheme. With regard to Amendment 17E, the Government’s intention is that in order to benefit from cost protection the publisher would not only have to be a member of an approved regulator but would also have to participate in the scheme. There are those who have argued differently. Surely it makes no sense to provide benefits to publishers simply on the basis that they recognise that an arbitration scheme exists. The point here should be that it is the active participation by publishers in the scheme that entitles them to get cost benefits. In any case, as Lord Justice Leveson pointed out, an incentive to join an arbitration scheme is good for all publishers and will help them and the claimants. Can the Minister confirm that this is his understanding of the situation and that the Government stand ready to confirm this position in the other place?

Amendment 17J asks for clarification, as raised by the noble Lord, Lord Skidelsky, about the commencement of Sections 44 and 46 of the LASPO Act 2012, which was taken through the House by the noble Lord, Lord McNally, so he should know his stuff on this. I should be grateful for some confirmation about the issues that arise from that question. Amendment 19B would require that the recognition panel, which approves the self-regulator, is subject to freedom of information. This is an important matter which surely should be brought forward at this stage. After all, it is something that can be dealt with by secondary legislation. No one would surely expect that the recognition body wishes the power to act in secret. This really is important, so will the Minister give us an assurance that the relevant statutory instrument will be brought forward in good time before the regulator starts its work? Amendment 131A concerns relevant publishers which hold broadcasting licences. The drafting here is a little opaque. We seek an assurance from the Minister that a person who holds a broadcasting licence is excluded only in so far as they publish news-related material in the course of their broadcasting activities. Can the Minister confirm that this is not intended to cover the whole publishing activity of such licence-holders but only their broadcasting activity?

My Amendment 131F, which was put down earlier and is part of this group, has, I think, been overtaken by events. I refer to the extensive introduction which the Minister gave to Amendment 131BA, which provides for:

“A person who publishes a small-scale blog”.

I think it is meant to be a peg to allow for further discussion and debate for this event to happen in the House of Commons. On the basis of that understanding, for which I am grateful to the Minister, I will not press that amendment when the time comes.

Finally, there has been some talk about dates and the time that all this comes into effect. I should be grateful if the Minister could be very clear about what he understands the implementation date to be.