My Lords, I have Amendment 147 and the consequential Amendments 148 and 216 in this group. It may be convenient if I suggest to the House the choreography of how this group might work. The noble Baroness, Lady Hollins, has moved her amendment, which is what we are debating now and will decide on. I will speak to my amendments only once now, and other noble Lords can contribute to all the amendments being debated. I expect that the Minister will reply, the noble Baroness, Lady Hollins, will respond, and we will then deal with her amendment. After the formalities with other amendments, I will formally move my Amendment 147 and deal with any points arising from this debate in respect of it. I believe it is in order for noble Lords to make a substantive contribution after I move my amendment, at that time, but it may be more convenient for the House for noble Lords to do so now, during this current debate.
It goes without saying that I fully support the noble Baroness, Lady Hollins, in her Amendment 127A. We must get to the bottom of what has been going on. My amendments would incentivise media operators to sign up to an independent press regulator in respect of data protection claims. This is achieved in the same way as the yet-to-be-commenced Section 40 of the Crime and Courts Act 2013. My consequential Amendment 216 ensures that Amendments 147 and 148 come into effect on Royal Assent, and deny Ministers the discretion not to implement what Parliament might agree to, as has been done with Section 40.
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I remind the House that I have never been abused by the media; I do not know any celebrities who are not, or have not been, parliamentarians. Post the Leveson report, the Crime and Courts Act has been passed. A royal charter is in place that is exceptionally difficult to change, but I expect my noble friend Lord Black might have some comments on that. The Press Recognition Panel is in operation. Its principal function is to determine if an applicant press regulator meets, and continues to meet, all 29 criteria for recognition laid out in the royal charter. The PRP has recognised the press regulator, Impress, which covers a readership of 4.5 million people, but other regulators could be approved.
In Committee, my noble friend Lord Black suggested that IPSO could be made compliant. To meet one of the criteria of recognition, future self-regulators of the press must offer a compulsory and low-cost arbitration service. Newspapers that joined a regulator that had obtained recognition would therefore be bound to be offering low-cost compulsory arbitration for media claims, provided they were not vexatious or frivolous. Arbitration is cheaper and quicker than court for both sides—defendant publishers and claimant members of the public.
The costs-shifting measures in Section 40 of the CCA and my amendments provide that if a claimant brought a data protection claim against a newspaper that was signed up to a recognised regulator but the complainant refused to use the arbitration service on offer, the claimant would have to meet all his own legal costs in the case, win or lose. This is because the only motive for a claimant insisting on going to court is to “chill” the publishers’ reporting—think Robert Maxwell.
By requiring the claimant to meet their own costs, publications are protected. They are protected from the risk of paying ruinous costs, should they lose. It seems a bit odd that investigative journalists do not welcome this with open arms, although I know of some very high-profile and experienced journalists who do so.
As media advertising has pointed out, these costs-shifting provisions can work in the other way if an operator does not sign up to a recognised regulator and thus deprive claimants of access to the compulsory arbitration system that Leveson recommended. They would, indeed, have to meet the costs of any claim against them, win or lose. This was in response to a practice exposed at Leveson of some newspapers avoiding legal claims by using their expensive lawyers to frighten off claimants, of which more in a moment.
There is a further protection for the media as the judge may make a different costs award if appropriate—for example, if the claimant does not behave reasonably. Data protection claims were not covered by Section 40 in 2013. They were left out as a concession to the press. This amendment would fix that anomaly by adding data protection claims for which Section 40 is applicable.
The noble Baroness, Lady Hollins, referred to the experience of Edward Bowles and the tragic loss of his son. I have been in communication with Juliet Shaw who has emailed many of your Lordships with her experience of not being able to secure justice. By doing so, she has saved much of the House’s precious time. The “Sex and the Country” article was a clear libel, and had hugely damaging effects on Juliet’s life and the perceptions her friends and family had of her. In preparing her claim, she was threatened by a lawyer acting for the Daily Mail in a phone call that, given the severe costs involved, she should drop her claim lest the Mail—I quote what was put to the Leveson inquiry, “be in the unfortunate position of having to make you homeless”.
Associated Newspapers applied to have Juliet’s claim thrown out on the basis that it had no prospect of success but, following the hearing at the Royal Courts of Justice, the claim was given leave to proceed. Associated
Newspapers subsequently offered a clarification or a modest settlement to prevent a full trial. Therefore, she was forced to accept a modest settlement, given the risks involved in taking the matter further.
Your Lordships will be aware of some counter- arguments, and it would be foolish of me not to address them. The first claim is that this is state regulation of the media. The House is fortunate to have the services of my noble friend Lord Black of Brentwood, who has great experience in the print media. Without his help, we could so easily make some ghastly mistakes with the Bill, and the Minister has already taken on board some of his suggestions.
However, in Committee, no matter how hard I pushed my noble friend, he could not successfully explain how Ministers or the state could interfere in the new system of independent press regulation. Furthermore, neither could any other Member of the Committee, not even the noble Lord, Lord Lester of Herne Hill, nor the noble Lord, Lord Pannick. Insinuations were made that the £3 million of public money to pump-prime the Press Recognition Panel represents some form of state influence, but the model provided that in future, fees from recognised regulators would provide the necessary income stream. I remind the House that the courts are funded by and rely on the state, but no one suggests that they are not independent.
The second claim is that Impress is a creation of, and controlled by, Max Mosley. He indeed supplied the finance, which was necessary because Section 40 does not apply if there is not at least one recognised regulator in operation, for obvious reasons. However, the money went through a family trust and then, I think, another trust, so that he could not interfere with the independence of Impress. The News Media Association took this and other matters relating to the recognition system to the courts by judicial review and lost on all counts. We can be confident that the courts properly considered this matter, as counsel for the NMA was none other than the noble Lord, Lord Pannick.