Investigatory Powers Bill - Commons Reasons

– in the House of Lords at 3:37 pm on 2nd November 2016.

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Motion A

Moved by Earl Howe

That this House do not insist on its Amendment 11, to which the Commons have disagreed for their Reason 11A.

Commons Reason

11A: Because it is consequential on Lords Amendment No. 13 to which the Commons disagree.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

My Lords, we return to the regulation of the press and the outcome of the Leveson inquiry. Yesterday my right honourable friend the Secretary of State for Culture, Media and Sport launched a 10-week public consultation relating to Leveson part 2 and the commencement of Section 40 of the Crime and Courts Act. The consultation will give everyone with an interest in these matters an opportunity to have their say on this vital issue, which affects each and every one of us in this country. I hope noble Lords will welcome this announcement, which shows the Government’s commitment to addressing the issues and recommendations set out in the Leveson report in the most appropriate way.

Before we consider the ins and outs of press self-regulation, it is important that we all remember the context in which we are having this debate: the Investigatory Powers Bill. The Bill’s passage has been a long one, from its inception after three independent reviews, through pre-legislative scrutiny by three parliamentary committees to the thorough scrutiny subsequently applied by both Houses. The Government have recognised the need for consensus on legislation of this significance. They have listened and substantially changed the Bill in light of the scrutiny it has received. Both Houses have improved the Bill.

There is consensus on the need for the Bill. It is one of the most important pieces of legislation this Government will take forward. The Bill will provide a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. It will strengthen the safeguards for the use of those powers and it will create a powerful new body responsible for oversight of those powers.

I remind the House that the Bill replaces provisions in the Data Retention and Investigatory Powers Act 2014 that will sunset at the end of this year. The loss of those powers would pose a significant threat to the ability of law enforcement and the security and intelligence agencies to protect the public. I must therefore be clear: the Bill is important for our national security. The Government believe that there should be no delay in the passage of this important legislation.

Yesterday, the House of Commons considered the amendments put forward by this House which strengthened the safeguards in this important legislation and added clarity. It unanimously accepted them all. However, the Commons decisively rejected the amendments put forward in relation to regulation of the media—the press.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

The noble Earl has made the point that we should have no delay in the passage of the Bill. If your Lordships’ House should in fact support the amendments tabled today in the name of the noble Baroness, Lady Hollins, and the Bill goes back to the other place, when would the other place intend to debate these amendments and when would we get the opportunity to debate them again? Will it be tonight or tomorrow?

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

My Lords, it will not be that soon. My understanding is that it will not be until after the mini-Recess that we would come to debate these matters again, should the House support the noble Baroness.

Many honourable and right honourable Members in the other place spoke of how this vital Bill was not the place to consider the important, but unrelated, matter of the regulation of the press. They were right to do so. I say to the noble Baroness, Lady Hollins, that the issues she has raised are of critical importance. She herself was treated terribly by rogue elements of the media. As the Secretary of State for Culture, Media and Sport acknowledged yesterday in the other place, we know that in the past some elements of the press abused their position and ignored not only their own code of practice but the law. It was clear to all that there needed to be change.

However, a free press is also an essential component of a fully functioning democracy. The press should be able to tell the truth without fear or favour and to hold the powerful to account. A number of those who spoke in the debate in the other place yesterday made the point that the press self-regulatory landscape has changed significantly over the past four years, since the Leveson inquiry reported. It is therefore surely right that the Government now take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established in the first place can never happen again. I hope that noble Lords who have spoken so passionately on this issue will take the opportunity to contribute to the consultation in order that we get a broad range of evidence on which to make decisions.

I am the first to acknowledge that the issue of press regulation is a vitally important one. It deserves the fullest consideration, consultation and debate, but the Bill is vitally important as well. It will provide our law enforcement and security and intelligence agencies with the powers that they need to keep us all safe. I contend strongly that this Bill is simply not the place to try to regulate the press. Given the events of yesterday and the new consultation, which is the right way to approach the issue of press self-regulation, I invite noble Lords not to insist on the amendments that have been tabled and not to delay further the passage of this vital and world-leading legislation, which is essential to the safety and security of us all. I beg to move.

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, it is with regret that I return to my initiative one more time. I suggest that we do have time to consider it and I will speak to my Amendments E1, F1 and G1.

The issue at the heart of these debates remains simple: there was a widespread criminal conspiracy involving, it now turns out, more than one newspaper group. It lasted, and was covered up, for many years. It was combined with unexplained failures in police and prosecution action and allegations of political involvement in a cover-up. As a result, there was a public inquiry—the Leveson inquiry—and in 2013 a cross-party agreement was signed, committing Her Majesty’s Government to implementing its recommendations. As a result of that agreement, this House withdrew cross-party amendments to the Enterprise Bill and the Defamation Bill.

The Government have reneged on that agreement by not commencing Section 40 of the Crime and Courts Act 2013. When my amendments went to the other place yesterday, I was heartened to see several Conservative MPs speak in favour of the commencement of Section 40 and of these amendments. That gives me reason to hope that if noble Lords ask the House of Commons to think again—which is our right, our role and, on this occasion, I suggest, our duty—it will do so.

Having listened to criticism of the drafting and the effects of the earlier amendments, I am proposing a slightly different approach in Lords Amendments 15B, 15C, 338B, 339B and 339C. The amendments I am asking noble Lords to send back today are improved, I suggest, for the benefit of the Government in three ways.

First, the amendments can no longer be accused of impinging in any way on other provisions in the Bill, and I am assured that they are in scope. This was a concern of the noble and learned Lord, Lord Keen, on Monday. The compromise proposed is a new version of the Clause 8 statutory tort to follow Clause 8 which is directed to phone and email hacking alone.

There was also a criticism that the amendments did not in practice apply to new phone hacking claims because the cost rules applied only to actions under the new statutory tort. That led some to question whether it was proportionate to seek to amend the Bill at all. That has now been corrected with the extra words in paragraph (a) of subsection (1) of the second new clause.

In the commencement clause, in Amendment 339C there is a sunset clause of six years. It has been nearly six years since the hacking scandal broke, five and a half years since the Leveson inquiry was set up and four years since it reported, so six years should be enough time for the Government to implement the inquiry report and that of part 2, which I am certain must proceed and, indeed, to complete their consideration of the consultation announced yesterday.

I would like to say something about that new consultation. I would like to give the Government the benefit of the doubt, but my worry is that the consultation proposal amounts to Ministers saying that they will rerun the Leveson public inquiry with politicians sitting in the judge’s chair in private, perhaps asking questions that they alone have chosen and considering the responses in private. My fear is that Her Majesty’s Government will eventually respond to those responses, back the responses that have come from the industry, as in the past, and conclude that Lord Justice Leveson got it wrong.

We must remember that all sides at Leveson and the report agreed that politicians must not take sides in press regulation, because they tend to side with the press, and should not be involved in press regulation because it creates unhealthy links between the press and those it should be holding to account. Cross-party agreement provided for that separation. The consultation may have been designed to calm the waters, and perhaps big media are cheering, but for victims it is having the opposite effect because this is the one area where any government initiative, however well intended, is anti-policy and counterproductive.

These amendments say to Her Majesty’s Government, “If you are going to risk a consultation that will expose you to extraordinary pressure from big media, while you do so please at least protect some small measure of access to justice for victims”. That is what these very limited amendments do. I hope noble Lords will support them.

Photo of Lord Lipsey Lord Lipsey Labour 3:45 pm, 2nd November 2016

My Lords, I have some sympathy with the Minister’s position that this is not a brilliant place in which to legislate on press matters, but we need to put this in a bit of perspective. In the previous Parliament, there was total agreement in both Houses, among the Government and the Opposition, about what needed to be done to bring Leveson into effect. What happened after the election? Absolutely nothing. It was left to go sour outside the fridge.

The only reason we now have a lively debate on Leveson starting up again is because of the noble Baroness’s amendment and the decision of this House, which I was part of, to pass it by an enormous majority. That is the only reason we are talking about Leveson now. We would not have had a Green Paper yesterday without this debate. We would have been stuck in the Whittingdale position of not yet being convinced that the time was right.

It was quite staggering, reading the Commons debate yesterday, to see the number of Conservative MPs in particular who stood up and said, “Well, Leveson’s passed; it’s a long way behind us now and is not relevant any more. Press regulation has moved on”. Why has such a time passed by? Because the Government have done absolutely nothing to further Leveson. Meanwhile, the divides over Leveson have visibly grown.

I feel a deep sense of disappointment that Sir Alan Moses, who as chair of IPSO started off appearing to want to change it, has now become yet another of the press natives, totally defending everything IPSO does. I was disappointed in the IPSO-funded Pilling report, which seemed to me to give meaning to the word whitewash. I am disappointed by the arguments being used by the local press, claiming that the Hollins amendment in some way threatens it. The Hollins amendment is confined to phone hacking, and one thing local papers certainly never do is phone hack. It is completely irrelevant to them, yet they are doing this. This is not a way of moving things forward.

Having said those things quite strongly, I want to make it clear that, from a wholly personal point of view, I am in favour of looking for a compromise on these matters. I am an ex-journalist and know how strongly journalists feel about state interference in the press. I happen to think that these fears are exaggerated in the case of the royal charter disposition, but they do exist. I would be prepared to give some weight to that, if only the press would give some weight to the case against IPSO as it is constituted, which is set out at great length in a good document by Martin Moore, which many noble Lords will have read. Essentially, the proprietors and newspaper companies have IPSO in an iron grip called finance: they decide what finance it gets and what code is followed. They have IPSO under their control.

Some may feel IPSO is a brilliant regulator as things stand. Some, having read the recent decision in the Kelvin MacKenzie case about the newsreader who read out the news in a Muslim outfit—I will not go into it—may be less convinced that IPSO, as we now have it, is effective. The truth is that the moment it is accepted that IPSO is right, everything is settled and the Government are going to do nothing by bringing in Section 40, IPSO will start to slide back, as press regulators have on every occasion once Parliament’s eye is off them.

I would like to see the Government in an active search for a compromise and using the threat of Section 40—it is a threat—to advance that. I think they will do so with a stronger hand if, in the meantime, this House insists on the amendment being made to the Bill, so that the press representatives can see that the time has come to compromise and not insist that they must have their whole way without any concessions of any kind whatever. If we politicians do not stand up to the press, the press will walk all over us. I hope everybody in the House will therefore support the noble Baroness, Lady Hollins, in her attempt to prevent this happening.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I support whole- heartedly what the noble Baroness, Lady Hollins, and the noble Lord, Lord Lipsey, have said, and will address the comments of the Minister. He talked about a 10-week public consultation on Section 40 of the Crime and Courts Act 2013 together with Leveson 2 showing government commitment to the issues. My understanding is that Cabinet Office guidelines on consultation say that it should be for a minimum of 12 weeks and should not be over a holiday period, which this only 10-week consultation is. I wonder whether that calls into question the Government’s commitment.

The noble Earl talked about the context of the Bill and its long passage. If the Government are concerned about the sunset clause, which the Bill addresses, why, if the House passes the amendment this afternoon, is no further consideration to be given to it until 15 November—when it could be further considered either this evening or tomorrow, as my noble and learned friend pointed out?

The noble Earl also said that the Bill is not the place to consider this issue. The Public Bill Office clearly disagrees with the Government because, yet again, it has allowed this amendment to the Bill to be considered.

Yes, we must ensure a free press, but that does not mean a press able to do whatever it wants. We need a press that is also accountable, and that is what the amendment is about.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I cannot support the amendments of the noble Baroness, Lady Hollins. I declare an interest: I have given advice to a number of newspapers on press regulation issues.

There are different views on the wisdom or otherwise of Section 40 and of Leveson part 2, but the merits or dangers of press regulation should not be allowed to determine the issue before the House today. It is very simple. There are two reasons. First, the Bill is vital to national security. This House has spent hours in Committee and on Report improving the Bill’s contents in a non-partisan spirit. Whatever views noble Lords may have on Section 40 and on the failure yet to implement it, that is no justification for the passage of this important Bill to be held hostage by those who wish to further the cause of Section 40. I say to the noble Lord, Lord Paddick, that this is not about whether the amendments are within scope—plainly they are—the point is whether it is justified to hold up a Bill of this nature, a Bill about security, to advance a point of view on press regulation.

The second reason why I cannot support the amendments of the noble Baroness, Lady Hollins, is because whether or not to implement Section 40 is now the subject of a 10-week consultation. I simply cannot understand the objections to the Government having a 10-week consultation. The noble Lord, Lord Paddick, says that it should be 12 weeks; perhaps it should and perhaps it should not, but that is not a substantial point. The noble Baroness, Lady Hollins, and those who agree with her can argue their case about Section 40 and Leveson during the consultation. It is quite indefensible to hold up this vital Bill when the issue about which the noble Baroness is concerned—perhaps rightly—is the subject of active consultation.

Photo of Lord Rooker Lord Rooker Labour

My Lords, yesterday, I watched the Secretary of State when she delivered the Statement—the first time I have seen her at the Dispatch Box. I did not see the debate later, but I watched the Statement and all the questions on it. I got the impression that she was really threatening the press about Section 40. The noble Baroness, Lady Hollins, referred to this in another context. I was struck by the number of Conservative Members of Parliament who I would say are people of substance—they were there when I was there; they have been there a long time—who basically threatened IPSO. They made the point that there has to be a different, cheap system of adjudication before going to court. That is what I felt they were pushing for. They will not vote for that today or tomorrow; they will wait for the end of the consultation. I have supported both the noble Baroness and Leveson on more than one occasion, but I think that we should stick to the main issue today, which is Royal Assent for this Bill. I personally do not intend to vote to stop Royal Assent.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 4:00 pm, 2nd November 2016

My Lords, I have been second to none in this House in supporting the importance of this legislation. I have taken part at various stages and have contributed in a minor way to its improvement. The powers it replaces do not expire until the end of the year. If the House of Commons again rejects —as I expect it will—the amendments that are being passed today and they come back to this House, I will not then support them, because I do not want to see the Bill delayed. However, this is an opportunity to show that this House believes strongly that the Government mean what they say about a proper consultation on the pursuit of Leveson.

I do not think I am alone in suspecting that the Statement made by the Government yesterday was a diversionary tactic. I hope it was not, but we have an opportunity today to show that this House really believes that this must be pursued seriously and that action must be taken—perhaps on a compromise basis—to achieve the objectives of the Leveson report.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

To follow the point made by the noble Lord, Lord Butler of Brockwell, I think it important that the other place be given another chance to think about the Bill. To date, it has had only one opportunity to consider it, based on the amendments your Lordships’ House passed when the Bill was in this House. There will be another opportunity.

As has been pointed out by the noble Lord, Lord Rooker and noble Baroness, Lady Hollins, a number of Conservative Members yesterday during the questions following the Statement by the Secretary of State at the Department for Culture, Media and Sport indicated that they were not persuaded by the Government’s case for not yet implementing Section 40. Dr Andrew Murrison asked whether the Secretary of State agreed,

“that it would be reasonable to accept Baroness Hollins’ amendments”, and Sir Gerald Howarth—not someone I am usually given to quoting with approval—asked:

“Does she not agree that a great virtue of the Leveson inquiry was that it took this whole contentious issue out of the hands of politicians; that by going for this consultation, which she will respond to, she is in danger of embroiling politicians in the issue again; and that low-cost arbitration has to be part of the solution?”.—[Official Report, Commons, 1/11/16; col.806.]

So there is some indication that even on the Government Benches in the Commons, there are Members who are not persuaded of the Government’s position. I hope that one might describe it as a consultation of convenience that it came along when it did.

I will come back to that point but, on the point made by the noble Lord, Lord Pannick—which has been addressed by the noble Lord, Lord Butler—we know that the legislation which this Bill as a whole seeks to replace has a sunset clause. That clause is just under two months away; we have heard from the Minister that even if your Lordships vote for the Motion of the noble Baroness, Lady Hollins, today, it will be another two weeks until the House has the chance to consider it again. There is no urgency on the Government’s part to get Royal Assent this week.

It is also clear that the content of the Bill is in no way threatened by the amendments proposed by the noble Baroness. They are supplementary and do not detract in any way from the security issues which have been a matter of considerable debate on the part of your Lordships and, indeed, the House of Commons. They seek to address the very specific reasons that were put forward by Ministers and in the other place as to why this was not a suitable amendment. She has sought to, as it were, uncouple these amendments from the other parts of the Bill. They are supplementary and in no way detract from the security issues in the Bill.

As I indicated when we debated this matter on Report, for me what is important is that commitments were made to Parliament—to both the House of Commons and your Lordships’ House—back in March 2003, when various amendments were withdrawn: amendments to the Defamation Bill that your Lordships’ House had passed and amendments that had been tabled, I believe, to the Enterprise Bill and, in the other place, to the Crime and Courts Bill. They were withdrawn on a clear understanding that certain amendments going forward to the then Crime and Courts Bill would be implemented. I was part of the group who worked on the cross-party agreement, although I was not present when it was reached. Subsequently I also did much on a royal charter so that press regulation would be taken as far away from politicians as possible. The commitments made to Parliament are in jeopardy through the Government not implementing Section 40. More importantly, commitments were made to some of the victims of hacking. We should remember that the amendment we are discussing does not go as far as Section 40: it relates only to phone hacking. Along with the then Deputy Prime Minister, my right honourable friend Nick Clegg, I met the parents of Milly Dowler. Two things that struck me were their great dignity but also the great pain they had suffered. The Prime Minister gave commitments to them and other victims that there would be an inquiry, which took place, and that efforts would be made to ensure that such things did not happen again. These commitments trump any consultation. That is why I support the amendment in the name of the noble Baroness, Lady Hollins.

Photo of Lord Prescott Lord Prescott Labour

My Lords, this measure is not only diversionary, it is an attempt to finish off everything that Leveson proposed after an inquiry that lasted years. Everybody agreed that the hacking which occurred was terrible, particularly me as I was one of those who were hacked. I complained to the police, who did not believe me, to the Press Complaints Commission, which did not believe me, and then to all the bodies concerned with the issue, even the Crown Prosecution Office. They did not believe me. Eventually, I had to go to court to find justice on a human rights matter. Only then did all these bodies admit that they were aware of the evidence but did not declare it to me. I do not think the situation has changed. If the Government are saying that something will be different, will they please spell out what that difference is? What would happen if that situation were to occur now? I might add that the Investigatory Powers Bill will allow an awful lot more hacking than we have at present, as that is what it is designed to do. We talk about terrorism but what is to stop the police pursuing the matter, given their new technology, and perhaps not do so properly? Those affected by that action should then have a right to complain. If abuse occurs through the use of the technology, what do you do then? To whom do you complain?

The consultation went on for years under Leveson and those who played a part in it. We do not need any more consultation to work this out. I listened to the debate in the House of Commons and to all those people who agreed to this legislation and to the royal charter, every one of whom is now saying that we should start consultation. What happened? This started when Mr Whittingdale told the press that he was not minded to implement Section 40. He did not tell Parliament as by then he had moved on from the office of Secretary of State. This is a step-by-step process to get rid of Leveson’s recommendations. That is what it is really about. The next stage is to quash what he said about having a second inquiry into the relations between the police and the press. That is still ongoing. If anybody does not believe that, they can read it in the press every day of the week. The new IPSO, or whatever it is called, not only makes a judgment but also complains in the press. It made a judgment about me a few months ago when I made a complaint. That situation has not changed. Recommendations were made regarding having a new authority, but we have done nothing about it. We are locked in dispute on this. Therefore, to that extent I do not think anything has changed. When the Prime Minister met Murdoch in New York, they might have just thrown it into the conversation whether we should make these changes. It happened before with the previous Prime Minister—meeting secretly and then doing a deal. That is not acceptable. What I find most offensive of all is that we all agreed in this Chamber, and in the other Chamber when I was there, to take action. Admittedly, they wrapped it up in the royal charter. I did not agree with that royal charter argument. I always thought we wanted to keep the Queen out of politics. She is right in the middle of it now, is she not, with the royal charter?

There is a dispute among politicians about what is to be implemented. That is the reason I resigned. I was the only one to resign, apparently, from being a privy counsellor—that is, one who had not been to jail or got caught in some scandalous situation. That was a view of mine about the charter. That was the first weakening of the case for implementing Leveson. That was the first mistake we made.

We now appear to be discussing what we have already passed. We have already agreed it. I listened to the debate yesterday, in which it was said, “This is the wrong Bill”. We said it was the wrong Bill in this House; we recognised that. But it is the wrong Bill because the Government did not carry out what is already in legislation. It is there, we discussed it and we voted on it in both Houses. Nobody, as I understand it, voted against it. Then, we were told that the Minister, like all her MPs yesterday, is saying, “This isn’t the Bill. This is a serious matter”. I understand what they mean by that, but it came about only because they refused to carry out what they had voted for. That is what we are dealing with today. Now we are questioning what we in Parliament are supposed to have made a decision about, and saying that we are going to have a consultation. But it is a consultation to get out of the obligations that this House and the other place agreed to. That is unacceptable.

We have started the battle again about the reality of the press. We talk about freedom of the press, but does anybody complain about the freedom of the victims? No. They have a lot to say but I do not hear their voice. I did not hear them mentioned much in the House of Commons yesterday.

Photo of Lord Prescott Lord Prescott Labour

I am here; I am in the other part of Parliament. They did not mention the victims, who were promised justice by every one of us. What do you think those victims feel, reading in the paper now that we are preparing to consult? They were involved in the consultation following incidents in which they suffered press intrusion. I do not believe the situation has changed, and we will have to have a debate about the independence of the complaints system. But I am quite shocked that we are now about to back out of what appeared to be an overwhelming commitment from Prime Ministers and party leaders.

Consultation? It is not consultation. It is leaving via the back door because we do not have the guts to implement a charter that was first agreed to some years ago, and which we all agreed to for good political reasons some months ago. Everybody felt under pressure. Now they feel free to get out of their obligations. That is terrible. It is the start of Parliament reducing its powers. This is a terrible step towards getting rid of the obligation to the individual in our society, who has the right to privacy.

There has been lots of talk about security and about terrorism, but the ordinary person, for whom we all have to be responsible and accountable to, should be protected from such abuse. Frankly, even this Bill is giving more powers to the police. We have seen with the police and the press that it did not stop with Leveson. It is still going on. We have seen what has happened with the police at Hillsborough and Orgreave. All this is a massive way of ignoring our responsibilities in this matter, which we are not carrying out. I agree that it is a diversion, but it is bigger than that: it is a move to get rid of any recommendation to ensure the rights of the individual against the press, in the name of the freedom of the press. I disagree with that, as we all should.

I will support the amendment. If your Lordships really want to settle it, tell the Minister to implement the law and Section 40. That was the will of this House. Let the Government now do what they were supposed to do in agreeing that legislation and carry it out in the name of the freedom of the individual.

Photo of Lord West of Spithead Lord West of Spithead Labour

My Lords, all my experience from three years as Chief of Defence Intelligence and three years as the Minister for Security and Counterterrorism makes me realise how crucial the Bill is for the security of our nation. The Bill has been worked through now over a long period. It has had amazing input, it has amazing cross-party consensus and it is really very important. We have just had 37 minutes of emotive discussion, most of which has nothing to do with the security of our nation. I am very concerned that this amendment might well have an impact against the Bill that none of us intends. I have heard people saying, “There won’t be any difficulty”, but I am worried. If it does, that will be a problem for us. The Bill is too important for it to be delayed to a state where it is not implemented in time. I hear people saying, “That’s not a problem”, but all my experience of government and of life is that things suddenly crop up. I will be much happier knowing that the Bill has been put to bed, because our nation will then be much safer.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 4:15 pm, 2nd November 2016

The noble Baroness, Lady Hollins, has already reminded us of the cross-party agreement that committed the Government to implementing the recommendations of the Leveson inquiry. Unfortunately, the Government have not seen fit to commence Section 40 of the Crime and Courts Act 2013, even though, crucially, alongside the royal charter, Section 40 was designed to incentivise newspapers to join a recognised self-regulator. Yesterday the Government announced a public consultation on Section 40, despite the clear terms of the cross-party agreement.

There will of course be those who are suspicious of the Government’s reasons behind this consultation. Some may even feel that it is designed to give a cloak of respectability to a later decision to go back on the undertakings given and the cross-party agreement reached on Section 40. I do not intend to pursue that line. It is simply very odd for the Government now to commence consultation on whether in effect they should implement their own recent legislation, which was the subject of cross-party agreement, was passed by Parliament, and which still represents the will of Parliament. Is this to be a precedent and to become a feature, with the Government holding regular public consultations on whether they should implement legislation passed by Parliament? Where will it all end?

By the way, I do not share the view that there is not still time to resolve this matter and still ensure the very necessary and vital passage of the Bill within the required time limit. My party, with others, has played a major role in improving it considerably during its passage through Parliament. We will support the amendment moved by the noble Baroness, Lady Hollins, if it is put to a vote. There is no reason not to honour undertakings given and cross-party agreements reached on Section 40.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

My Lords, I first say to those who have supported the amendments in the name of the noble Baroness that I acknowledge the strength of feeling in the House on this emotive issue. As I said in my opening remarks, the Government know how important these matters are to everybody. We need a robust and workable system for media self-regulation, and resolving that is in everybody’s interest. However, I am afraid that I remain of the opinion that the Bill is not the means to achieve that. Of course I agree with the noble Lord, Lord Paddick, that the noble Baroness’s amendments are procedurally in order; that has never been in question. However, first, the scope of the Bill means it cannot do this subject justice. The amendments we are considering today concern only interception of communications and would not necessarily sit well with whatever broader solution is to follow. Secondly, and more importantly, the public consultation which the Secretary of State for Culture, Media and Sport announced yesterday provides a means for a reasoned, informed and considered public debate—

Photo of Lord Strasburger Lord Strasburger Liberal Democrat

I thank the noble Earl for giving way. I would like to share with him a direct quotation from one of the six members of the Leveson inquiry—someone with whom I spoke this morning. He said, “The consultation announced this week is just a shabby stunt, probably concocted by Paul Dacre, to defer the betrayal of the victims of press abuse—past and future—until this Bill has been safely put to bed”. I would like to offer the noble Earl an opportunity to refute that charge.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

My Lords, I repudiate it completely. The Government have been clear about the timescale of the consultation and have committed to respond in a timely manner. We are taking this matter with proper seriousness. It is important that everyone has an opportunity to take on board and reflect on the changes that have occurred in the years since Lord Justice Leveson made his recommendations. I say again to the noble Lord, Lord Paddick

Photo of Lord Beith Lord Beith Liberal Democrat

Just to clarify this matter, can the Minister tell us when he was told that the Government were launching a consultation on Section 40?

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

I was made aware of it at the beginning of the week, but I am also aware that it was in gestation long before that.

I say to the noble Lord, Lord Paddick, that there is no mandatory period for a public consultation. The Cabinet Office guidelines say that there must be a proportionate amount of time, and I think 10 weeks gives everybody time to look properly at the issues and to submit their views to government. In that light, and for all the reasons I rehearsed earlier, I respectfully ask your Lordships to allow the Bill to pass without these amendments.

Motion A agreed.

Motion B

Moved by Earl Howe

That this House do not insist on its Amendment 12, to which the Commons have disagreed for their Reason 12A.

Commons Reason

12A: Because it is inappropriate to extend civil liability under clause 8.

Motion C

Moved by Earl Howe

That this House do not insist on its Amendment 13, to which the Commons have disagreed for their Reason 13A.

Commons Reason

13A: Because it is inappropriate to extend civil liability under clause 8.

Motion D

Moved by Earl Howe

That this House do not insist on its Amendment 14, to which the Commons have disagreed for their Reason 14A.

Commons Reason

14A: Because it is consequential on Lords Amendment No. 13 to which the Commons disagree.

Motion E

Moved by Earl Howe

That this House do not insist on its Amendment 15, to which the Commons have disagreed for their Reason 15A.

Commons Reason

15A: Because it would not be appropriate to make such provision in relation to claims under clause 8 while consideration is being given to commencing section 40 of the Crime and Courts Act 2013.

Motion E1 (as an amendment to Motion E)

Moved by Baroness Hollins

At end insert “, and do propose Amendments 15B and 15C in lieu—

15B: Insert the following new Clause—“Civil liability for certain other unlawful interceptions(1) An interception of a communication is actionable at the suit or instance of—(a) the sender of the communication, or(b) the recipient, or intended recipient, of the communication, if conditions A to C are met.(2) Condition A is that the interception is carried out in the United Kingdom. (3) Condition B is that the communication is intercepted in the course of its transmission, by means of a public telecommunications system.(4) Condition C is that the interception is carried out without lawful authority.(5) For the meaning of “interception” and other key expressions used in this section, see sections 4 to 6.”

15C: Insert the following new Clause—“Interception without lawful authority: awards of costs(1) This section applies where—(a) a claim is made under section (Civil liability for certain other unlawful interceptions) against a person (“the defendant“), or a claim is made for misuse of private information arising from an interception of a communication carried out before the date on which section (Civil liability for certain other unlawful interceptions) comes into force,(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 (1) to (3) shall only apply to a claim issued after this section comes into force.(7) For the purposes of this section “approved regulator”, “material time” and “news-related material” 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.””

Photo of Baroness Hollins Baroness Hollins Crossbench

I beg to move.

Ayes 271, Noes 242.

Division number 1

See full list of votes (From The Public Whip)

Content

Not-content

Motion E1 agreed.

Motion F

Moved by Earl Howe

That this House do not insist on its Amendment 338, to which the Commons have disagreed for their Reason 338A.

Commons Reason

338A: Because it is consequential on Lords Amendment No. 339 to which the Commons disagree.

Motion F1 (as an amendment to Motion F)

Moved by Baroness Hollins

At end insert “, and do propose Amendment 338B in lieu—

338B: Page 191, line 38, after “(2)” insert “, (2A)”

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, I beg to move.

Motion F1 agreed.

Motion G

Moved by Earl Howe

That this House do not insist on its Amendment 339, to which the Commons have disagreed for their Reason 339A.

Commons Reason

339A: Because it is inappropriate for clauses 8 and 9 to come into force before the other provisions of the Bill relating to interception.

Motion G1 (as an amendment to Motion G)

Moved by Baroness Hollins

At end insert “, and do propose Amendments 339B and 339C in lieu—

339B: Page 192, line 2, at end insert—“(2A) Sections (Civil liability for certain other unlawful interceptions) and (Interception without lawful authority: awards of costs) come into force on the day following that on which this Act is passed.

339C: Page 192, line 4, at end insert—“(3A) Sections (Civil liability for certain other unlawful interceptions) and (Interception without lawful authority: awards of costs) are repealed at the end of the period of six years starting with the day on which they come into force.”

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, I beg to move.

Motion G1 agreed.