Leveson Inquiry Update

Lord McNally Excerpts

Thursday 1st March 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I am very grateful to the noble and learned Lord for repeating the Statement made by his right honourable friend the Secretary of State for—is it D2CMS? I forget how you pronounce it these days, with “digital” being added to the department name.

We need to consider three main issues addressed in the Statement. First, this announcement of the Government’s formal decision, albeit it was prefigured in their manifesto, terminates the Leveson inquiry established under the Inquiries Act 2005. It also gives notice that the Government will repeal Section 40 of the Crime and Courts Act 2013. But we gather from the Statement that Sir Brian Leveson, who has rightly been consulted about this, agrees that his inquiry should not proceed but believes that it should continue in an amended form.

But is that what is happening? Could it be, as was patently clear from the huge response to the consultation carried out by the Government, that Sir Brian believes that there are still many unanswered questions? Do they include which editors and other senior newspaper executives were commissioned or otherwise responsible for data theft, phone hacking and other illegal conduct by journalists and investigators? Does it cover the full extent of hacking and data protection breaches at certain national newspapers, the extent of alleged corruption between some politicians, media representatives and the Metropolitan Police, and the nature of the relationships between the police and the press, in particular the long-term cover-up of police responsibility for the Hillsborough disaster?

The Statement gives the impression that this has all been sorted. It says that,

“the terms of reference for a part 2 of the inquiry have largely been met”.

Well, I do not think that Sir Brian agrees with that—or that the victims will agree with it. I certainly do not. It would be very helpful for your Lordships’ House if the noble and learned Lord could explain what precisely the words used by Sir Brian meant in that enigmatic phrase that he believes that the inquiry should continue in “an amended form”. Will he put copies of the correspondence in the Library so that we can all see it?

Secondly, on Report on the Data Protection Bill your Lordships’ House voted by 238 to 209 to add Amendment 127A in the name of the noble Baroness, Lady Hollins. This new clause effectively requires the Government to proceed with a second part of the Leveson inquiry. The House also agreed amendments in the name of the noble Earl, Lord Attlee, which replicate Section 40 of the Crime and Courts Act for data protection claims only.

It is possible that the Government will find the arguments—I have every confidence that we will listen to them with great interest—that will persuade the other place to remove these two amendments, but the parliamentary arithmetic being what it is, I am not sure that that is certain. In any case, if the amendments are reversed, they will come back here on ping-pong under considerable time pressure. After all, the Bill has to have Royal Assent by 25 May. Could the noble and learned Lord speculate about what might happen on the assumption that the Bill remains unamended? Perhaps we should explore the common ground here, because there is potential for working together on this. I look forward to discussions that were started prior to discussions on the Data Protection Act.

Will the noble and learned Lord also explain what the timetable is for the repeal of Section 40 of the Crime and Courts Act? The Statement says that it will not be commenced—again, that was in the Conservative manifesto—but the Statement adds that the Government will seek repeal “at the earliest opportunity”. When is that? “Soon” and “before Christmas”, which are the usual words in the lexicon used by the noble and learned Lord, will not be sufficient on this occasion. I look forward to more detail.

Thirdly, the saddest thing about this Statement is that it makes it clear that the all-party consensus that informed the Leveson report and oversaw the parliamentary process immediately after its publication has been destroyed. The Conservatives have reneged on the promises made by successive Prime Ministers not to let down the victims of press intrusion, and they are clearly setting their face against ensuring that we learn the lessons of the past. It is a disgrace that the Government are betraying the trust placed in them by the victims. Who now will stand up for them and make sure that their pain and suffering will not be repeated?

I believe that there is a willingness in Parliament to encourage an independent system of press regulation, as recommended by Sir Brian Leveson. I will go further: I am sympathetic, and I think others are, to the idea that if IPSO would clearly meet the standard for recognition establish by the PRP, it might be sensible for Parliament to revisit the complex set of interrelated measures of inducements and penalties set up under the rather baroque arrangements of the Privy Council.

Alongside this, we need to take into account the parallel developments mentioned in the Statement. Mainly because of loss of sales and the collapse in advertising revenues, the traditional press is in serious decline. The new, unregulated electronic sources of news and information are growing rapidly and the internet is constantly innovating and expanding news, fake news and other services. I agree with the Secretary of State that one result of these trends is that we may be witnessing the end of a fine tradition of serious journalism and the elimination of space for independent opinion which has always underpinned our democracy and polity in the UK. I agree with him that this is really important.

I welcome the proposal for a review of the sustainability of high-quality journalism and suggest to the noble and learned Lord that there may be considerable advantage in making the review cross-party and ensuring that its evidence and proceedings are open to the public. Perhaps he could comment on that—and if he cannot do so now, will he be ready to respond to an Oral Question on this later in the month, of which I have given him some notice?

If this marks the end of Leveson—and I echo the thanks expressed by the Secretary of State to Sir Brian for his considerable efforts—I am left with the following thoughts. The key question raised by Leveson is how in a democratic society we enshrine the press’s freedom to publish in the public interest while ensuring a proportionate balance so that individuals retain their rights to privacy and the security of their personal data. We have not got this right yet, but I do not think that we are far away from coming to a proper solution.

We must learn the lessons from the culture of abuse, illegality and criminality that has flourished for too long in our newspapers. There is no point in trying to cover over that and not look at it. We need to examine all these things and come up with reports—and we have to make sure that the victims of press intrusion can get effective redress when such abuse happens.

As I have said, there is more that unites us on this than divides us. Now would be a good time to reach out to all parties and attempt to re-establish the cross-party agreement that led to the original Leveson report and ensure that its good work is carried on.

[Lord McNally (LD)]

My Lords, it is never a pretty sight to watch a Government capitulating to vested interests. At such a time, it is always useful to look around and see who is smiling. Certainly, Mr Rupert Murdoch will be smiling, as will Lord Rothermere, Mr Paul Dacre and the Barclay Brothers—owners or editors of the Times, the Sun, the Mail and the Telegraph respectively.

It was nearly 30 years ago, in 1990, that the Calcutt commission recommended the setting up of a Press Complaints Commission. The Government of the day welcomed that report and set up the Press Complaints Commission, but warned that it was a “final chance” for self-regulation, or, as the then Secretary of State, David Mellor, put it, the press were,

“drinking in the last-chance saloon”.

The trouble is, what has happened since? There was no learning of lessons or improvement of behaviour, with the addition of corruption and criminality to the cocktail of press failings under the stones that Lord Justice Leveson turned over.

This Statement is littered with high-minded declarations, such as,

“free to … investigate without fear or favour … underpin our democracy … integral to the freedom of our nation”,

and,

“safeguard the lifeblood of our democratic discourse”,

but the truth is that none of those high-minded aspirations would be put at risk either by implementing Section 40 or by continuing with part 2 of Leveson. They are put at risk by behaviour that undermines public trust and diminishes confidence in our democracy.

Will the Minister clarify a number of points? First, will he put in the Library of the House the precise terms on which Sir Brian Leveson believes his inquiry should have continued? Secondly, when will the terms of reference and chair for the new review into the sustainability of the press be announced? Will it be that review or Ofcom that looks at the increasing overlap between print journalism, online journalism and broadcast news, which now sits with the various oversight bodies that regulate them?

The sentence in the Statement with which I agree entirely states that challenges that were only in their infancy in 2011 have now to be faced. Issues such as misinformation, fake news, malicious disinformation and online abuse all threaten both the quality of journalism and the fundamental rights of our citizens.

But this Statement is not a response equal to that challenge. For all the crocodile tears, it will do nothing to preserve local newspapers. It leaves the victims of press abuse with their hurt still raw and unassuaged by any sense of justice done. It was very interesting that a few hours after the Manchester bombing, journalists were knocking on the doors of victims, intruding into the private grief of people who had lost their children that night. So much for conscience and regret.

It leaves a self-serving regulator, IPSO, which is as ineffectual and compromised as its predecessor, the PCC. As the noble Lord, Lord Stevenson, said, it is open to IPSO to come within the Leveson recommendations, and if there were any sense of trying to meet the all-party approach that the noble Lord, Lord Stevenson, advocated, that is what IPSO would do. It leaves our media landscape not, as it should be, a balance of quality, diversity and choice, but again simply an accident waiting to happen, as those guilty of past abuse remain in power, with no sense of contrition or shame, and there is still no effective means of holding the perpetrators of that abuse to account.

It is not even an outcome of the consultation. It is the fulfilment of a squalid political deal between the press barons and the Conservative Party which the Secretary of State will live to regret. What is certain is that the name of Leveson will rank higher in the list of defenders of freedom of the press than any member of this Government.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their responses.

Sky-Fox Update

Lord McNally Excerpts

Tuesday 23rd January 2018 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the noble and learned Lord for repeating the Statement made by the Secretary of State in another place. I take this opportunity to congratulate Mr Matt Hancock on his appointment and pay tribute to the fact that, on this issue, he says he intends to continue his predecessor’s practice of being as open as possible while respecting the quasi-judicial nature of the decision. In this regard, I respectfully request that the Minister suggests to the new Secretary of State that he might wish to continue the informal all-party meetings with Members of your Lordships’ House, which were very helpful in previous rounds of this and related issues. We would welcome that.

As we have heard, the provisional findings of the CMA are that if the Fox-Sky merger went ahead as proposed, it could be against the public interest. It would result in the Murdoch family having too much control over news providers in the UK and too much influence over public opinion and the political agenda. I do not think that there can be much dispute about that. We now move on to a public consultation of possible remedies, which I am sure will attract a great deal of attention, as did the original investigation, with some 16,000 responses.

The Statement that we have just heard did not, for obvious reasons explained by the noble and learned Lord, go into the detail of the possible remedies, but I think it is worth commenting that, even at this stage, it is fairly clear that the CMA largely discounts what are called “behavioural remedies”, which are largely firewalls aimed at keeping entities and their information separate within a merged group. We agree that that would not be a preferred solution. Secondly, the CMA is unenthusiastic about structural remedies; namely to either spin off Sky News into a new company, or recommend the divestiture of Sky News, as this may threaten the viability of Sky News. This is something that has already been threatened: indeed, it is interesting to note that the CMA warns parties that the closure of Sky News while the investigation is ongoing would not be permitted. We are left, therefore, with the third recommendation which is out for consultation, which is the prohibition of the transaction. We think that that is the right solution.

Clearly, a lot of this is dependent on whether and when the sale of Fox to Disney goes ahead. It is subject to considerable regulatory issues in the United States and we do not know enough about what the final structures will be; we therefore have to wait. It is a complicated issue on its own without these other factors intervening, and it is good that the CMA seems to be on top of this, keeping a watchful eye on it and making sensible proposals in the eventuality of this coming through within the timescale of its review. The most surprising issue in the Statement is that the CMA says it is not concerned about the proposed merger on broadcasting standards grounds. I make two points here.

We have argued consistently that the fit and proper person test of individuals who seek to acquire and operate a broadcasting licence is central to having a fair and plural press in this country. However, the test itself is flawed and outdated and needs to be revised. I refer the noble and learned Lord to amendments to the Digital Economy Act which we debated in the last Parliament and which we withdrew on the basis that the Government were considering amending the current provisions and would be looking at this in the near future. I do not think it would be difficult to find a way of bringing into the 21st century a system which, after all, is similar in many respects to the one routinely operated in the financial sector. Will the Government consider this? If so, will they tell us when they will bring forward some recommendations?

Secondly, we have consistently said that if we are to reach a proper assessment of the broadcasting standards question as it affects the Murdoch Family Trust and others, we need to get to the bottom of the corporate governance issues that gave rise to the original Leveson report and should be looked at again as part of part 2 of the Leveson inquiry. I am trying to be helpful here to the noble and learned Lord—I hope he will not need to be reminded that, as a result of amendments in the name of the noble Baroness, Lady Hollins, which were agreed by this House to the Data Protection Bill, the Government are likely to be required to carry out a review of this type one way or the other. Once Sir Brian has reviewed the recent consultation responses on this issue, I urge the Government to simply get on with it.

[Lord McNally (LD)]

My Lords, I associate myself with the points made by the noble Lord, Lord Stevenson, about the second stage of Leveson and also the remedies that have already been put forward on media regulation. I welcome this Statement and the ongoing commitment of the Secretary of State to keep both Houses informed. I also appreciate the continuing interest of the Minister in this House, the noble and learned Lord, Lord Keen, in the matter. Like the noble Lord, Lord Stevenson, I would welcome a continuation of that informal dialogue. We welcome the interim findings concerning the public interest not being served in terms either of diversity or the influence of the Murdoch Family Trust.

On the commitment to broadcasting standards, I share the concern and puzzlement of the noble Lord, Lord Stevenson. I find it odd that in terms of commitment to broadcasting standards, the proposed merger does not operate against the public interest, echoing an earlier and very disappointing finding by Ofcom. In three continents over 60 years—in Australia, the UK and the USA—Mr Murdoch has been a major factor in lowering standards in both print and broadcast media. I am pleased that the Secretary of State is taking his time to think and consider. Frankly, he has been a little too eager to shoot from the hip in his first few days in office, so this more considered response is welcome.

I still believe that a healthy media ecology rests on a mantra of quality, diversity and choice. All three are threatened by an extension of Murdoch power. It is important to defend the integrity of Sky News, where the lack of 100% control has mitigated against the Murdoch effect. But the Secretary of State needs to go further and consider carefully how we protect our public service broadcast news on the BBC, ITV and Sky News. We need to review the protection of news sources in the light of the impact of new technologies. Here again, Ofcom needs to be proactive in reviewing and bringing advice on these matters.

We must also keep an eye on the implications of the Disney takeover of Fox. Does the Minister have a timetable or guesstimate about how soon the US authorities will come to their conclusions? For we must make sure that any remedies to protect the public interest are real and effective, not simply fig leaves to cover up a surrender to big media power. This is a welcome Statement but it is not the end of the matter. We need a robust Secretary of State to defend the public interest but, on that, I am afraid the jury is still out.

[Lord Keen of Elie]

I am obliged to the noble Lords for their observations. I note that the noble Lords, Lord Stevenson and Lord McNally, would both like to see a continuation of the informal all-party meetings that have taken place. I will of course pass that to the new Secretary of State for his consideration.

I cannot comment upon the terms of the provisional report and I know that Members of this House would not expect me to do so. The final decision will be a quasi-judicial decision for the Secretary of State, one which he will make in the light of the final report and in respect of which he will give reasons. With regard to the Fox-Disney transaction, both Disney and 21st Century Fox have stated clearly that the intention is for 21st Century Fox to continue with its bid of December 2016 before the Disney acquisition is completed. But I am not in a position, any more than any other of your Lordships, to determine when that final process will be completed. It will be subject to procedural issues in the United States of America, quite apart from anything else.

Probation Service

Lord McNally Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, we are not satisfied with the telephone form of probation but, as I said, contact with offenders has to be proportionate to the risk they present.

[Lord McNally (LD)]

My Lords, I assure the Minister that when these proposals were put through by the coalition Government they were ideologically driven, and some of the flaws that have emerged reveal the kind of compromises that were created in the probation service. Before these reforms, the probation service had an excellent report; we now have this disastrous report. If the Minister is approaching this ideologically, I put it to him that there is now a strong case for handing probation over wholly to the National Probation Service.

[Lord Keen of Elie]

My Lords, I am not approaching this matter as an ideologue. I am approaching it as a Minister with responsibility for the implementation of the existing system of probation, in which we continue to have faith.

Data Protection Bill [HL]

Lord McNally Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Skidelsky]

The noble Lord, Lord Black, paints an incredibly rosy picture of the state of press regulation in the last 20 years. What he ignores is the background to the Leveson inquiry itself and the statutory system—the royal charter and so on—which followed it. There were years in which many newspapers grossly abused their freedom of speech. That is why this interlocking set of propositions, as he calls them, got going and produced a system which all the parties in Parliament accepted in 2013. He says that no other country in the world has a system like ours. No other country has had such an abusive press in parts, though not all the press by any means. These amendments seek to create a balance between freedom of speech and the right of privacy by setting up an auditor to determine how that balance is kept. It is an independent auditor, not part of the Government or the state. The noble Lord, Lord Black, seems to confuse the role of the state with that of an independent auditor, so the argument falls to the ground.

[Lord McNally (LD)]

My Lords, so that my noble friend Lord Lester can come in in due order, I will speak to Amendment 88. I also draw the Minister’s attention to Amendment 91, which relates to the City. It is clear from the ICO guidance that journalistic exemption was intended to apply to non-media companies, but this is not made explicit in the Bill. In addition, the Bill does not address whether material can be considered published if it is behind a paywall, or mainly addressed to corporate subscribers. That is the thinking behind Amendment 91. We were discussing earlier the concerns of some in financial services and companies such as Thomson Reuters about how the Bill affected them, and that is my probing for them.

I would like to speak to Amendment 88. I was one of the four privy counsellors who signed off the royal charter. I was in government when this went on. It was not an attempt by government to regulate the press. In fact, the coalition Government twisted and turned to try to find ways of taking this forward, as far away from state regulation as we possibly could.

--- Later in debate ---

[Lord Lester of Herne Hill]

I was not discussing personalities, but what happened in the case in Strasbourg. I was about to say that, ironically, the Strasbourg court of human rights had regard to the editors’ code in the course of giving its judgment, so it certainly regarded the old editors’ code as relevant for that purpose.

The Explanatory Notes to the Bill state:

“Article 85 of the GDPR requires Member States to provide exemptions or derogations from certain rights and obligations in the context of processing personal data for journalistic purposes or the purpose of academic, artistic or literary expression”.


The notes go on to explain how that works. Article 10 is engaged, as there is an inherent tension between data protection and the right to freedom of expression. The Government were right to recognise those inherent tensions, which are not new. Personal data is about private information. I am reliably told that those public figures who wish to keep their private information away from inquiry now, as a matter of course, use data laws to protect publication in newspapers. If the correct balance is not struck, the ability of the press to act as a watchdog will be impaired to the detriment of democracy. Investigations, such as those into sex grooming, will become more difficult to publish.

The exemptions in Part 5 of Schedule 2 to the Bill are not new. They carry forward similar provisions in the Data Protection Act 1998. There is no good reason to amend them to the detriment of IPSO titles. It would be punitive to do so. Article 88 treats the majority of the print media, regulated by IPSO, less favourably than the BBC, broadcasters regulated by Ofcom and, if the amendment of the noble Lord, Lord Skidelsky, is accepted, members of Impress. That would mean that members of IPSO would be unable to rely on their compliance with the editors’ code—to which they are bound by contract—in their defence. It is difficult to understand the justification for this form of discrimination against editors and journalists working for our national and regional newspapers.

[Lord McNally]

I do not know how many more pages my noble friend has of this. Somewhere in it must be the recognition that IPSO has not applied for recognition, which would have given it all the protections he is calling for. He does not do himself a service. One of the reasons why people get irritated by the lawyers in this House is that they think that if they make a long enough speech it must be so and only the wicked would disagree. The reason why IPSO would be under threat is that it has not sought recognition. He gave a long list of IPSO’s supposed strengths. It is a sweetheart organisation. It is run by the newspaper owners. That is what we are trying to move away from.

I have now found something on the independent overseas press regulation. David Wolfe QC has said that it is disappointing that there continue to be attempts to prevent the recognition system working and that it is frustrating that Section 40 of the Crime and Courts Act has not been commenced. I would be a lot more impressed with my noble friend if he got behind that, or at least gave his friends in IPSO some really good advice and asked them to try to find a way forward with press regulation, instead of giving them an absolute veto on seeking a solution to this matter. I have finished—for the time being.

Update on Proposed Fox-Sky Merger Process

Lord McNally Excerpts

Tuesday 12th September 2017 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I welcome the Statement that the Secretary of State is minded to refer the bid to the CMA on broadcasting standards grounds as well as those of media plurality. In its first report, Ofcom said there were no broadcasting standards concerned that may justify a reference. It has now admitted that there are “non-fanciful” concerns. On that basis, the Secretary of State had to refer the bid, she has done so, and we on these Benches certainly welcome that.

The Murdochs have a long history of regulatory non-compliance and corporate governance failure, at both 21st Century Fox and News Corporation. Just last week, News Group settled in 17 cases relating to allegations of criminality at the Sun, ensuring that James Murdoch will not have to appear in court later this year.

The Secretary of State has done her job and now, as the noble and learned Lord, Lord Keen, said, the CMA must do its job. However, we need to be assured that it will be a comprehensive look at the corporate governance issues. The Secretary of State has said—and the noble and learned Lord repeated this—that the issue is a matter of evidence. One way to gather that properly, and to inform the CMA, would be to commence the second part of the Leveson inquiry. I hope the noble and learned Lord will be able to reassure the House on that matter.

When previous Statements have been made to the House on this issue, I have sought reassurance from the noble and learned Lord in relation to data. How data are mined, used and abused in terms of media plurality is particularly an issue in relation to Fox News. I would be grateful if the noble and learned Lord could repeat what he said to us before—that the issues of,

“data-scraping or data accumulation … are matters that the Competition and Markets Authority will take into account in arriving at any decision”.—[Official Report, 20/7/17; col. 1749.]

I hope the noble and learned Lord can reassure us on that.

[Lord McNally (LD)]

My Lords, like the noble Lord, Lord Collins, I welcome this Statement and I am grateful to the Minister and the Secretary of State for the thorough way that she has kept those of us interested briefed as she has come to these decisions. I also welcome the revised advice from Ofcom. I was part of the committee that created Ofcom and have always been proud of the way it has developed as a regulator. I have to say that its first advice on these matters came close to being equivalent to what the Premiership seems to think of as fit and proper to run a football club. The revised advice gives some credibility back to Ofcom in these matters, and it should be grateful to the Secretary of State.

I am a little worried about the sudden appearance of the term, “non-fanciful”. I am not sure that the Minister, with his long and distinguished legal career, would be able to tell me how “non-fanciful” is weighed in matters of judgment. As the noble Lord, Lord Collins, asked, would worries about data mining and abuse of data be dismissed as “fanciful”? When we bandy terms such as non-fanciful about, we should remember that most of the accusations made about News International in the past 10 years were initially dismissed as fanciful—as being made up by enemies of the Murdochs—but then turned out to be true. I am not so sure that “fanciful” and “non-fanciful” should be used in the work ahead.

In taking its decisions, the review should look at the threat to the UK media industry. Our media in all their aspects are among the least protected of national media from predatory attack. As the value of the pound falls, there is good reason for being careful about the message that we send out about our determination to defend the integrity of our media.

I associate myself also with the call made by the noble Lord, Lord Collins, for the second part of Leveson to go ahead.

As a Fox subscriber, I was interested to learn that Sky thought that Fox News was so little to the taste of the British viewer that it has taken it off its platform, whereas it has left on it the Iranian and Russian news channels.

[Lord Keen of Elie]

My Lords, I begin by responding to the point raised by the noble Lord, Lord McNally, on what is “fanciful” or not, because it goes to the heart of the decision-making process addressed by the Secretary of State. It is a term with a legal basis that is linked to the statutory test for a phase 2 referral in public interest cases. I mention in passing the Court of Appeal decision in the case of the Office of Fair Trading v IBA Health. I shall not elaborate on the dicta in that decision, save to mention that there is a legal basis.

The Secretary of State must believe that the merger operates, or may be expected to operate, against the public interest. In her coming to her view that the evidence meets the test of “non-fanciful”, it should be noticed that that is a relatively low threshold. It is not necessary that the Secretary of State should be satisfied on the balance of probabilities or beyond reasonable doubt; the belief must be reasonably and objectively justified by the facts. In other words, there must be an evidential basis for the Secretary of State’s concern, but the concern itself does not need to be proven. That is essentially the approach that underpins the Secretary of State’s decision-making process here.

On broadcasting standards, I emphasise to the noble Lord, Lord Collins, that we are dealing at this stage with the Secretary of State’s “minded to” decision. It is not a final decision. There is now a 10-day process, pursuant to Section 104 of the Act, whereby the parties can respond and make submissions before any final decision is arrived at.

As regards evidence and data in the context of media plurality, it is premature for me to elaborate on what has already been said on these matters because a final decision has not been made on the second ground of broadcasting standards. If and when such a decision is made, there will in any event be a reference to the CMA, and it will be for the CMA to discharge its statutory functions. It would not be appropriate for me at this stage to anticipate how the CMA should go about its own statutory task. That would be to intrude into its territory. With all due respect, I hope the noble Lord accepts that it would not be appropriate for us to tread on that lawn, as it were.

On the question of Leveson 2, we have clearly progressed a long way since the first part of the Leveson inquiry was set up over six years ago. We have witnessed the completion of three detailed police investigations, extensive reforms to practices involving the police and some significant changes to press regulation. We have put this matter out for consultation and are considering the responses to it. We will publish a response in due course.

Prisoners: Imprisonment for Public Protection Sentences

Lord McNally Excerpts

Thursday 20th July 2017 Lords Chamber

[Lord Keen of Elie]

IPP prisoners have access to the appropriate programmes and matters have improved considerably over the past few years so far as that is concerned, but it is not always necessary that an IPP prisoner should undergo a specific programme to satisfy the Parole Board as to their suitability for release. There are other means by which this can be achieved.

[Lord McNally (LD)]

My Lords, as the noble Lord, Lord Blunkett, acknowledged, both the Ministers who brought in this legislation and the coalition Government who abolished IPPs saw them as a mistake. Section 128 was put into the Bill particularly to deal with the present situation that the Minister faces. It is not true that he is dealing with this problem in a way that will get rid of it quickly. It will be with us well into the next decade. It is also not true, as he implies frequently, that what the noble and learned Lord, Lord Brown, I and others are doing is throwing open the gates for dangerous prisoners. There would still be a very hard, close process before these men were released but it would get rid of an obvious and glaring injustice. The Government should make use of Section 128 for the reason it was put there.

[Lord Keen of Elie]

We are of course conscious of the ability to move under Section 128. That remains under review. However, under the present regime we have seen an acceleration in the number of releases. Be that as it may, let us keep in mind the simple fact that where people achieve the present test, we have a breach of licence conditions rate of about 30%. We are dealing with very difficult and in each case dangerous individuals who must be managed in the community for its safety as a whole.

Fox-Sky Merger

Lord McNally Excerpts

Thursday 20th July 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Minister for repeating the Statement made in the other place. I am grateful to the Government for returning to the Houses of Parliament, both here and the other place, just before Recess to update us on progress.

We have been following the twists and turns of this saga closely. It is obvious, and absolutely right, that the Secretary of State is taking her quasi-judicial responsibilities very seriously. While we regret that she is minded not to refer the bid on grounds of broadcast standards, we support her decision, as I take it to be, to refer the bid to the CMA on the grounds of media plurality.

I have three main points that I hope the Minister will be able to respond to. The first is on the timing. Could I press the Minister on the possibility that the Secretary of State might announce her decision during the Summer Recess? Surely Parliament must have the opportunity to scrutinise any decision that she makes. It is not her job to operate to 21st Century Fox’s corporate timetable; in my view, the company would be better to abide by the rules as they currently are and respect the role of Parliament in this, and it should signal that very clearly. In my view, the Secretary of State should demonstrate to those at Fox that it is she, as an elected representative of the people, who is in charge, not them. I ask that the usual channels in this House also be kept abreast and that we be informed if there is to be a Statement so that we can respond to it.

Secondly, I want to press the Minister on the broadcasting standards investigation. I suggest it needs a bit more work before a decision is finally reached. Recently, compelling arguments for this have been made in the other place by my right honourable friend the Member for Doncaster North and the right honourable Members for Twickenham and for Rushcliffe—noble Lords will be aware that that is a pretty distinguished cross-party alliance. The truth is that the Murdochs have a history of regulatory non-compliance and of corporate governance failure that calls their commitment to broadcasting standards into serious question. Ofcom says that there are,

“significant concerns about Fox’s approach to ensuring Fox News content complies with the Broadcasting Code”.

We saw in the phone hacking scandal that senior employees and executives at News International failed to comply with criminal law or with acceptable standards of journalistic conduct—and, frankly, acted with a flagrant disregard of basic human decency. We see from the ongoing sexual and racial harassment scandal at Fox News in the United States that there is ample evidence of what Ofcom calls “significant corporate failure”.

Does the noble and learned Lord agree that it is time to look again at the fit and proper person test applied in the case of broadcasting standards? I heard it said by a distinguished former member of Ofcom that that test could be satisfied only if the person concerned was caught in the act of murder, had been prosecuted and that the body was exhibited before any such decision could be taken. That is probably a test too far. The noble and learned Lord will recall that, in the Digital Economy Act, several noble Lords from around the House joined together to table an amendment that suggested that there were other models for the fit and proper person test that might be more appropriate—particularly those applying under the Financial Conduct Authority. At that stage, we were persuaded by Ministers that it would be inappropriate to press the amendment to a vote, which I now regret, because they promised an early opportunity in the legislative timetable to bring forward recommendations on it. Can the noble and learned Lord confirm that that is still the plan and share with us which legislative vehicle will be used for it?

Of course, the best way to get at a lot of these corporate failure issues would be to proceed with the inquiry that has already been promised, which is specifically to look into part 2 of the Leveson inquiry. Will the noble and learned Lord confirm that that could still be implemented, because that could be very germane to what we are discussing today?

There is a third issue that we need to look at. On one hand, a lot of the problems that have been caused here are to do with the way in which the corporate veil hides individual actions in a way that would be inappropriate in the broadcasting area. This issue is really about control of media organisations. This is not a battle for the control of a particular broadcasting entity called Sky News; it is really a battle between old media and new media. At the heart of that lies control of personal data, in which there is considerable interest and investment being made. It is about data power—the power to know who is watching what and what their interests are will be more important as competition increases. We are talking about battles between the organisations concerned in this merger and organisations such as Google and Facebook. Does the noble and learned Lord believe that the CMA has the powers to investigate this aspect of media plurality? Without knowing where the data sources and how they are being used, it will be difficult for it properly to assess the impact on media power going forward? I look forward to hearing from him.

[Lord McNally (LD)]

My Lords, like the noble Lord, I welcome the Statement and the courtesy and openness with which the Secretary of State has approached her responsibilities. That is why I find it extraordinary that, having emphasised and carried out her duties to Parliament so assiduously, it could even be suggested that she should make a decision during an eight-week gap between Parliament rising now and returning on an issue that has been before her, regulators and Parliament for years. That would be an absurd assault on parliamentary dignity and responsibility, and I strongly urge her not to follow that road.

Part of the problem is the siloed nature of the decision, when what is needed, as the noble Lord said, is a holistic judgment about the fitness of this takeover. But that is how it has been played. The problem is also the siloed nature of modern business structures. Various parts of the structures can clear part of the siloed questions when we all know, as I have said, what the web is and that the spider is at the centre of that web.

I also press the Minister on whether this could lead to the second stage of Leveson and on the point made right at the end. I remember a few years ago somebody buying a canal and everybody thought what an absurd price he had paid for a canal—the age of canals was over. Then it suddenly dawned on everybody that he had not bought a canal; he had bought miles and miles of land on either side of the canal and made a fortune as a property developer. The same is true now, as the noble Lord has said. I have often pondered what on earth niggles Murdoch that he has tried, year after year, to get 100% control of Sky. What act of vanity is this? He may be vain but he also knows where a quick buck is to be made. It occurs to me that there is ample evidence that what Sky has is a database of some 13 million people, which could become increasingly valuable in the data battles ahead. I wonder whether the Secretary of State has asked the Information Commissioner’s advice on this aspect of the takeover and on how it fits into other legislation that we are considering. This is a foreign bid for a British database, which should give concern about how it is being handled. I go back to the friendliest of warnings: the Secretary of State would be very wrong to consider making this decision while Parliament is in recess.

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their observations on this matter and I appreciate their acknowledgement that the Secretary of State is endeavouring to treat this matter in as open a way as possible. Given the quasi-judicial nature of the task that has been laid on her by statute—one that she cannot alter by her own whim, as it were—and bearing in mind the quasi-judicial process that we are in, it is implicit that the Secretary of State must act promptly, for the benefit of both the public and the parties interested in the proposed merger. It is in those circumstances that she has to consider the matter of timing. I appreciate the point made by the noble Lord, Lord McNally, about the dignity of this House, the other House and Parliament in general, but the Secretary of State is in a position where, because of the timing issues, the announcement is liable to be made during recess. As she has said, however, she is intent on assuring the House by way of intimation to the Speakers of both Houses when the decision is made and the nature of that decision.

The noble Lord, Lord Stevenson, referred to her decision. I reiterate that the Secretary of State has made no final decision on any matter. She has reached a preliminary view on the basis of the information before her at present.

So far as standards are concerned, further work will be done before a final decision is made. In particular, the Secretary of State will look at all the representations that have been submitted to her until Friday, which cover both media plurality and broadcasting standards. She will look at both issues before coming to a final decision. It is possible to reach an informed decision and verdict without a body. The circumstantial evidence may be compelling in itself, and all the circumstantial evidence will be taken into account.

As for the reference to the CMA, it would not be for the Secretary of State to constrain the scope of the CMA’s phase 2 investigation, and I would not suggest that any constraint should be placed on that investigation by the Secretary of State.

I hear what is said about data protection but we have to remember that personal data held by Sky, or indeed by Fox, are protected by the Data Protection Act. That applies not only to personal data but to more extensive caches of data held by Sky, so there is already a degree of protection in place.

Part 2 of Leveson was raised. No final decision has yet been made on that. Indeed, no final decision can be made until the chair of that inquiry has been consulted on the point. A statutory provision under the Inquiries Act dictates that the chair of an inquiry will be consulted before any final decision is made about the second phase of an inquiry programme, so that remains outstanding.

In these circumstances, I again commend the Secretary of State’s Statement to this House and reinforce the point that she has arrived at no final determination but will do so only after she has considered all the representations submitted to her.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, regulators do not have a role in scrutinising what data are held by companies involved in mergers, but if representations are made about the issue of data, such as data-scraping or data accumulation, those are matters that the Competition and Markets Authority will take into account in arriving at any decision that it makes in the context of a phase 2 inquiry.

[Lord McNally]

Has the Information Commissioner been consulted? I did ask that question, and the noble and learned Lord did not answer.

[Lord Keen of Elie]

I am not in a position to answer that question at this time, but I shall endeavour to make inquiries and write to the noble Lord to advise him on the positon on that point. I shall place a copy of any letter in the Library.

Sky and 21st Century Fox: Proposed Merger

Lord McNally Excerpts

Thursday 29th June 2017 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating the Statement made by the Secretary of State.

Media plurality is a key finding and irrespective of any final decision of the Secretary of State, the Labour Party over the next 12 months will review media ownership rules in the United Kingdom. However, I warn the Minister that the problem with Murdoch’s undertakings in lieu, even strengthened ones during this process, is that they will became as meaningless as those he has given in the past. Just look at what happened to the guarantees of editorial independence for the Times and the Sunday Times.

If the current rules mean that James Murdoch can pass a fit and proper test, given everything we know about his and his companies’ behaviour over phone hacking and about Fox’s behaviour over the ongoing sexual harassment scandal in the United States, that says much more about the rules than it does about Mr Murdoch. It is clear that the rules need to be reviewed. Even if this Government will not do it, the next Labour Government will.

It has been reported that a spokesperson from Fox has said that the company is “confident” the merger will be approved based on,

“an objective assessment of the facts”.

But does the Minister not recognise that without Leveson 2 we still do not know the facts, and therefore in order to have a proper objective assessment this merger should not be approved without the findings of the second part of the inquiry?

Added to this, later this year another civil case will be heard against News Group relating to phone hacking, for which the judge has requested thousands of invoices for private investigators linked to the Sun, and James Murdoch’s own laptop. Given that phone hacking is very far from resolved, James Murdoch’s own conduct before and after the scandal broke is not clear, and neither is the reason why millions of emails were deleted by the company, how can we possibly allow this takeover to go ahead while this is hanging over them?

Finally, as regards influence on the political process, I would like to ask the Minister a specific question: what provisions does he believe exist in either the Data Protection Act or within the powers of Ofcom under the Communications Act 2003 to prevent the owner of what is at present Sky Broadcasting misusing the data it holds concerning the lives and preferences of 11 million British and Irish households in a manner that furthers its influence over the political process in either the United Kingdom or the Republic of Ireland? If no such protections are available, what assurances would the Secretary of State seek in this regard? The days when citizens of other countries can dominate our media markets while paying their taxes overseas have to end.

[Lord McNally (LD)]

My Lords, one of the advantages of this place is that there is a certain continuity. I have been speaking on, and dealing with, media matters for the last 20 years. I recall that at some point in the mid-1990s the then Press Complaints Commission brought in another charter on good behaviour. I remember talking to a very senior Times executive and asking, “What about this new charter? If you checked a story against the responsibilities under the charter and decided that it would be wrong to publish that story but the next day the Daily Mail led on it, what would happen?”. He said, “That’s easy. Rupert would fire me”. I agree with the noble Lord, Lord Collins: one has to read the book as well as look into the crystal ball in these matters, and the ability of the Murdochs to give assurances and then ignore them is well documented.

One thing that sticks in my mind is Mr Murdoch’s appearance before the Select Committee, at which he said that it was the “most humble” day of his life—a curious choice of words—yet now, a few years later, he and most of the gang who were accused of the most heinous crimes are back in place and moving forward. The reality is that the Murdochs are an ever-incoming tide. I appreciate that the Secretary of State needs to follow a quasi-judicial role and, my goodness, she is going to need the advice of the Minister at the Bench as she now tiptoes through that minefield, because the Murdochs always have some very expensive lawyers at hand. However, I hope she does not get involved in a game of poker in which it is said, “We’ll give you these assurances”, to which the answer is, “No, they won’t do”, and that is followed by, “Well, what about these assurances?”. Let us stick with this referral.

I look forward to reading the Ofcom justification of the “fit and proper” finding. One can assume only that the narrow legal determination of “fit and proper” in the present legislation is far too low, and I hope the Government will now look at the whole question of whether we need to strengthen plurality, public interest and the fit and proper person test in the existing legislation.

I join the noble Lord, Lord Collins, in saying that Leveson 2 is now essential. The Government put it in their manifesto, despite the previous Conservative Government having committed to dropping Section 40. The electorate said no. We should now proceed with Leveson 2 with all speed. There is also now a need to look at the powers of Google and the internet providers.

Finally, I am a little worried about the deadline of 14 July. That is only six days before both Houses rise for the summer. There is an old habit of various decisions being rushed out on the last day before a Summer Recess. Can we be assured that any decisions on this matter will be taken only when Parliament is in session?

[Lord Grade of Yarmouth (Con)]

My Lords—