On October 11^th, amendments were tabled by Baronesses Hollins and O’Neil of Bengarve and Lords Wallace of Tankerness and Falconer of Thoroton to the Investigatory Powers Bill with the intention of encouraging the Government to commence section 40 of the Crime and Courts Act 2013 – or, if they are voted onto the statute book, to provide some extent of s40 protection in the meantime.This was after the House became frustrated by the Government’s failure to commence s40, which is already a year overdue, and was part of the cross party agreement. Section 40 is a costs-shifting provision, which guarantees access to justice for claimants with arguable media cases, while also providing new free speech protections to newspapers independently regulated. IPSO-regulated publishers do not qualify for the free speech protections, because at present they are not independent.

The amendments

Baroness Hollins’ amendments introduced the following new clause 9 into the bill:“Interception without lawful authority - Awards of costs1)This section applies where–a) a claim is made under section 8 (Civil liability for certain unlawful interceptions) against a person (“the defendant”), [or a claim is made for misuse of private information in relation to an interception carried out before the date on which section 8 comes into force,]b) the defendant was a relevant publisher at the material time, andc) 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, orb)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), orb)it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.4) This section is not to be read as limiting any power to make rules of court.5) This section does not apply until such time as a body is first recognised as an approved regulator.6) Subsections (2) and (3) shall apply to any claim issued after this section comes into force.7) For the purposes of this section “approved regulator” shall have the same meaning as in section 42 of the Crime and Courts Act 2013, and “relevant publisher” shall have the same meaning as in section 41 of that Act.”The sub-clause in square brackets is pending a further amendment to the clause.Baroness Hollins’ other amendments:

1. Adjusted the provisions of clause 8, as described below.
2. Added provision to ensure clauses 8 and 9 would be commenced automatically upon Royal Assent.

The amendments to clause 8 made the statutory tort for interception of communications, previously available under RIPA section 1(3), applicable for victims of phone-hacking by third parties (such as newspapers).The purpose of clause 9 is to provide costs protection for claimants and for Leveson regulated news publishers in these claims, equivalent to that which would exist for such claimants had the Government commenced section 40 of the Crime and Act 2013 (which would apply to all media claims, not just phone-hacking) and which should have been “commenced” by the Government by now.Further amendments ensured that clauses 8 and 9 will automatically commence immediately after Royal Assent for this Bill in order to prevent the Government once again frustrating the will of Parliament by the anti-democratic procedural executive “device” of non-commencement.The intention of the amendments is to ensure that the Government does now commence section 40 of the Crime and Courts Act 2013 and does so without delay (which would result in repeal of the amendments at Third Reading or in the Commons).

Background

After the Leveson Public Inquiry, Sir Brian Leveson found that voluntary newspaper self-regulation had failed once again. He recommended that from now on Parliament and the Government must ensure that any new regulator set up by the press should be accredited as independent and effective by a “recognition panel” which would be wholly separate from both Parliament and the industry. His recommendations also dealt with how to provide incentives for newspapers to join an accredited self-regulator.The Government accepted those recommendations.Section 40 of the Crime and Courts Act was part of a package – called the cross-party agreement. This agreement was reached in March 2013 to avoid the Government being defeated in both Houses over delays in implementing Leveson or attempts to dilute his recommendations. It was a formal agreement (including the Royal Charter) which was signed by the PM and the leaders of the Labour and Liberal Democrat parties.Section 40 needs to be commenced, in the usual way provided in Bills, “on a day appointed by the Secretary of State”.During the debates in both houses on the cross-party agreement, on the Enterprise and Regulatory Reform Bill and on the Crime and Courts Bill, there was never any question that the Government would renege on the cross-party agreement by the procedural executive “device” of non-commencement or would delay commencement in the way that it has. Indeed, the cross-party agreement was framed such that section 40 would be commenced before the exemplary damages provision (which came into force automatically last November).The Government made multiple explicit commitments on the floor of both Houses to bring in the costs incentive (section 40) and the exemplary damages provisions. No less than 25 (twenty five) of those commitments are listed here.On October 19th 2015, the then Culture Secretary suddenly announced at a meeting of newspaper editors that he was “not minded to commence” section 40. That represents a change of Government policy which both breaks the cross-party agreement and betrays promises made to both Houses and to press abuse victims.The use of non-commencement to defy the legislative will of Parliament is anti-democratic and unprecedented. This is more outrageous when it serves only the commercial interests of a few media companies and their proprietors, and is even worse when it is part of the pattern of behaviour that Sir Brian Leveson explicitly stated had to end: successive governments conspiring with, or being seen to conspire with, powerful newspaper editors and proprietors acting purely in their own commercial self-interest.

Lords debate

The debate is here.Baroness Hollins was supported in the chamber by co-sponsors Lord Wallace and Baroness O’Neill, Lord Prescott, Lord Oates, Lord Paddick, Lord Rosser, Lord Rooker.Baroness Hollins said,“There has been no explanation to Parliament as to why the former Culture Secretary announced last October at a meeting of newspaper editors that he was not minded to commence Section 40. That represents a change of government policy, which both breaks the cross-party agreement and betrays promises made to both Houses and to press abuse victims.”The Conservative Peer Lord Mackay of Clashfern called for section 40 to be commenced, saying:“I sincerely hope that the new Secretary of State and the new Prime Minister will see the obligation that rests on them to carry out what had been undertaken by their predecessors. Indeed, the Prime Minister was a party to that agreement at the time as the Home Secretary of a Government who consented to the operation.”In the vote, the amendments were carried by 282 votes to 180.This was the first government defeat under Prime Minister Theresa May.

Next steps

The bill will receive Third Reading in the Lords on October 31^st.On November 1^st, the Lords amendments (including these) will be debated in the Commons.