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Crime and Courts Bill [Lords]

Volume 561: debated on Monday 22 April 2013

Consideration of Lords message

With this it will be convenient to discuss the following:

Lords amendment 17B.

Government amendments (a) and (b) in lieu of Lords amendment 131A.

Hon. Members will recall that on Report on 18 March the House agreed to a number of new clauses which, together with an amendment to the Enterprise and Regulatory Reform Bill, implement the legislative parts of the cross-party agreement on Leveson. They will also remember that the published clauses, along with the royal charter, enabled the Government to bring forward a cross-party agreement based on a system of incentivisation rather than compulsion. There will be a tough system of self-regulation that avoids full statutory regulation—the Rubicon that the Prime Minister and I refuse to cross. The clauses will put in place the incentive-based, self-regulatory system for the press envisaged by Lord Justice Leveson.

The other place agreed, by and large, with the Commons amendments, but there is one substantive issue that we need to resolve: namely, the position within the new framework of small-scale bloggers. Government amendments (a) and (b) in lieu of Lords amendment 131A address that issue.

It might assist the House if I put the amendments in context by explaining our approach to the definition of “relevant publisher”. At present, four interlocking tests define who is and who is not a relevant publisher for the purposes of these provisions. A relevant publisher must meet all of those. They must publish news-related material, be written by different authors, be subject to editorial control and be published in the course of business, whether or not that is with a view to profit.

We want to ensure that the new approach acts as the incentive that Lord Justice Leveson intended, but we have to be clear and careful about which publishers are covered. He said of the new regulatory body:

“Ideally the body would attract membership from all news and periodical publishers, including news publishers online. It is important for the credibility of the system, as well as for the promotion of high standards of journalism and the protection of individual rights, that the body should have the widest possible membership among news providers.”

However, he was also clear that:

“This is not meant to be prescriptive at the very small end of the market: I would not necessarily expect very small publishers to join the body”.

We have therefore provided a definition of “relevant publisher” that captures national newspapers and their online editions, local and regional newspapers and their online editions, and online-only edited, press-like content providers.

My local newspapers are concerned about why regional and local newspapers are caught in the new legislation, when they were not found to have had a hand in the scandal that brought us to where we are. Will my right hon. Friend reiterate why they are included?

My hon. Friend is right that that point has exercised many individuals both within the Chamber and outside. It was clear from Lord Justice Leveson’s report that it was his intention for the local press to be part of the new self-regulatory regime. Equally, he understood that there are clear financial pressures on the local press, as there have been for many years, and that provisions might be needed within the self-regulatory regime that treat them differently. That is something for the press to deal with and I understand that they are looking at it. It is important, however, that the local press are part of the opportunity to have self-regulation. I reiterate to my hon. Friend that it is exactly that—self-regulation—and that there is no compulsion. I hope that that provides the reassurance that he is seeking.

Exemplary damages and costs are designed to cover what might be termed more sophisticated news publishers, and will act as a key incentive to join the new press regulator. It is therefore essential that the definition of “relevant publisher” equates to the publications that we expect to be part of the regulator.

Equally, the definition is not intended to capture a host of activities, including small-scale activity online. It is not intended to capture the news aggregation services of operators such as Yahoo! or MSN, or social networking sites. Nor is it aimed at sites that simply moderate the comments of others or aggregate a series of blogs without any active consideration of the content. By that I mean blog hosting services such as WordPress or Tumblr.

I want to be really clear about the matter, because I know that many hon. Members have examined it in detail. To the extent that a website such as Mumsnet runs an online blog forum, that activity is clearly not covered by the definition of “relevant publisher”, as forums are not covered. The provisions may be relevant to a site such as Mumsnet only if it is in the business of commissioning articles and publishing news stories. Such businesses undertake different activities, one of which may well be publishing news, which would bring them into the scope of self-regulation. However, forums such as the one run by Mumsnet would not be covered.

I also wish to clarify again the effects of the definition of “relevant publisher” on news aggregators. It is not our intention that the provisions should capture news aggregators such as Yahoo!, MSN or Google. News and content aggregators who license or otherwise acquire news-related content from third parties control that content only in as far as they decide how to present it in its totality, and to that extent they are not subjecting the material to editorial control. It is therefore not intended that services providing a platform for bloggers to post content are captured. Again, the control exercised by aggregators is limited to the high-level presentation of content, so news aggregators are not captured by our definition.

We have, however, acknowledged the need for clarity, particularly with regard to small-scale blogs. When the provisions were last discussed in the other place, we undertook to have a period of reflection to assess whether any further clarity would be helpful and could be provided. My officials have since held a number of round-table discussions with small-scale blog sites to understand their concerns further. The amendments that we have tabled, with cross-party agreement, seek to provide that further clarification.

Amendment (a) will add to the list of exemptions micro-businesses where they are a blog or where their publications are merely incidental to their other business. For organisations that publish news-related material incidentally to their main activity, that exemption will cover both online and traditional print. We use a definition of a micro-business commonly used by the Department for Business, Innovation and Skills, which captures any business with fewer than 10 employees and a turnover of less than £2 million. The amendment will ensure that a micro-business that is either a small-scale blog or a website whose publication of news-related material is only incidental to its wider business is not included. That should place many blogs and other small web publishers squarely outside the incentives framework.

Amendment (b) will allow those not captured to get the benefit of the costs incentives if they choose to join the recognised regulator, even though they are not a relevant publisher. That means that those exempted by virtue of the fact that they are a micro-business can choose to gain the benefits of the costs clauses by joining the regulator, providing an incentive for them to join if they so wish and a choice to small organisations, perhaps before they grow in size and inevitably become a relevant publisher. That is an important addition that will help support that part of the market.

I can deal briefly with Lords amendments 17A and 17B. In short, the objective of the new costs regime is to incentivise publishers financially to join the regulator. The intention behind subsection (2)(a) of the new clause “Awards of costs”, originally inserted in the Commons, is to allow costs to be awarded against a regulated publisher only if the claim before the courts is not capable of being resolved through the self-regulator’s arbitration scheme. However, to achieve that effect, the word “not” needs to be inserted into that subsection to avoid the opposite being the case. That was a simple drafting error that is corrected by Lords amendment 17A.

Lords amendment 17B removes subsection (4) of the new clause “Awards of costs”, which we have concluded after further discussion is unnecessary and unduly restrictive.

The clauses to which the Lords amendments relate have been carefully constructed to enable a system of incentivisation, which will form the basis of a new, tough self-regulator for the press in line with Leveson principles. The amendments are far removed from those that the noble Lords Skidelsky and Puttnam, among others, proposed for consideration in this House. Let us be clear that had we not successfully negotiated a cross-party royal charter, the House could well be debating a system of full statutory regulation that would have undermined the freedom of this country’s press.

I am grateful to the Secretary of State for trying to give us greater clarity. Does she intend that websites run by political parties and MPs that comment on news and current affairs will not be included in the system?

As always, my right hon. Friend cuts to the quick with a question that is important to many of us. If he examines the detail of our provisions and exemptions, and the Leveson report, he will see that the intention behind everything that we are doing is to focus self-regulation on those who publish news. I do not believe that any political party or MP intends primarily to publish news. That will be secondary, so it is not our intention that such websites should be the primary focus of the provisions. Obviously, there will be areas in the margins that need further clarification, and the courts will be able to provide that over time.

I am pleased that we are able to examine these details, because there has been much concern. I would be grateful for guidance on a few specific issues about how the provisions should be interpreted. For example, a lot of multi-author blogs involve people who are self-employed or who work on a voluntary basis. How should the number of employees be dealt with? Will the Secretary of State provide guidance on that, and on what the definition of a blog is?

It will be full-time employees who are included in the employment measure, which is why it is important that not just employment but turnover is considered. Many organisations utilise a number of self-employed people, hence the twin-track approach.

We have set out what we anticipate being considered a blog, which is about individual opinion being set forth through electronic media. That is relatively straightforward, although as I said to my right hon. Friend the Member for Wokingham (Mr Redwood), there will always be more difficult matters to consider at the margins and the courts will be able to provide further information. We will also provide guidance in the usual way.

The amendments address concerns raised by small-scale bloggers and other small businesses and will ensure that the definition of “relevant publisher” captures the news publishers that were the focus of Lord Justice Leveson’s inquiry. They have the full support of all three major parties in the House, and on that basis I commend them to the House.

I am pleased to be able to take part in this debate, which nails down the final details of the recommendations that Lord Justice Leveson made about setting up a new self-regulatory system for the press. When the Bill was introduced into the House a year ago, Lord Justice Leveson had not even reported, so we were fortunate to be able to thumb a lift with the Bill.

On 18 March, on Third Reading, the House agreed to insert new clauses providing for new rules on exemplary damages and costs. They are an essential part of the cross-party agreement on a royal charter, which is part of the new framework of independent self-regulation guaranteed by law.

As the Secretary of State said, the Bill aims to provide publishers with incentives to sign up to the new system of self-regulation that should meet the criteria set out in the royal charter. Publishers that join the recognised regulator will receive protection from the award of exemplary damages in media disputes, the opportunity to use an arbitration service, and cost benefits from having access to the arbitration service—that is one reason why it would benefit local as well as national newspapers. If a complainant chooses not to use the arbitration service, they can still be liable for costs even if they win.

Lord Justice Leveson’s report was about the press, but the original drafting had the unintended effect of catching blogs in the net—a point noted in this House by my hon. Friend the indefatigable Member for West Bromwich East (Mr Watson). That said, Lord Justice Leveson expressed the hope in recommendation 73 of his report that online publishers would also join a regulator. The Bill therefore needed to be amended to ensure that exemplary damages did not apply to blogs, but that they could receive the benefits of joining a recognised regulator. The Lords agreed a number of amendments, including a placeholder amendment, on 25 March.

The Government’s decision to hold a “mini-consultation”—as I think the Secretary of State called it—to pause for reflection and consider the blogosphere was sensible. With the best will in the world, middle-aged Members of Parliament in both Houses are perhaps not absolutely up to speed with the way in which the blogosphere operates among the next generation, but I think we have now got it right. The Labour party agrees with the policy objectives that the Government are seeking to address: to exempt micro-businesses from the definition of “relevant publisher” where they are a blog or their publications are merely incidental to their other business; and to enable such micro-businesses to receive the benefits and cost incentives if they join a recognised regulator. The amendments use the micro-business definition for a small blog as one whose turnover is below £2 million and has up to 10 employees. It exempts such businesses from exemplary damages and enables them to benefit from the cost advantages of an arbitration service if they join a regulator—that last point will be particularly welcome in that community.

Labour supports Lords amendments 17A and 17B and amendments (a) and (b) in lieu of amendment 131, and we will not divide the House in this debate. However, there is a thicket of double negatives, and for those outside the House who are following proceedings closely I ask the Secretary of State to provide assurances and clarity on a couple of points. Will she tell the House whether this approach minimises the risk of gaming, in particular by groups of companies? What is the position of campaigning groups’ newsletters—the right hon. Member for Wokingham (Mr Redwood) raised that point? I thought that Mumsnet would be excluded because its primary purpose is not to publish news—it is clear that motherhood is not a hobby, so it is not excluded on those grounds—or, indeed, UK Feminista. Neither of those is a charity and it might help if the Secretary of State said a little more about the newsletters of campaigning groups.

Will she confirm that access to the arbitration system for those outside the regulatory body is limited to small-scale blogs, and say why she chose that approach? The hon. Member for Cambridge (Dr Huppert) asked about the definition of “blog”, and I assume that the Secretary of State has received legal advice that the word will be properly interpreted. She has already explained why she is addressing only the number of employees, and not those who are self-employed, but if she could elucidate a little on those points it would be helpful and we will be happy to support her this evening.

I do not wish to detain the House long but I am pleased that we have finally reached this point and that important details of Leveson are agreed. If I had been asked when I first looked at the Crime and Courts Bill which part I thought would keep us in ping-pong, it would not have been this provision or anything to do with blogs. I do not know whether the hon. Member for Bishop Auckland (Helen Goodman) was referring to me as a middle-aged man. I am the proud holder of a Liberal Democrat Voice “blogger of the year” award, but even I would have struggled desperately to write this provision or make all the definitions. I hope that the Secretary of State has been able to be clear. There will be people who try to game this, but that is true of all legislation. I hope that the Bill has been made as game-proof as possible, while preserving the pleasure of the games that people play on blogs. I am delighted that we are at this point and I will not take up any more of the House’s time. I look forward to the Bill being enacted and I hope that the Secretary of State will clarify those few remaining points.

I thank the hon. Member for Bishop Auckland (Helen Goodman) for her helpful support as we try to resolve the final details of the Bill. Hon. Members have raised a number of issues in the short period that we have to debate the Bill, and hopefully I can resolve them to everybody’s satisfaction.

I think that by “gaming” the hon. Lady meant the ability of companies to try to buck the system we have set up. It is always difficult to give a categorical assurance on that, but I think our approach minimises the risk of organisations taking such an approach. We have minimised the risk by using the definition of a micro-business, which does not just consider one element—staff—but staff and turnover. Therefore, if an organisation decided to ensure that all its staff were freelancers, it could not then play with its turnover in a way that would make it a micro-business. Equally, individual businesses will find it difficult to disaggregate their businesses in a way that would leave them registered as micro-businesses, and then duck the system without compromising the way in which they operate on a day-to-day basis. Furthermore, a court will be capable of looking at the facts of a case to see whether an organisation has attempted to get around the rules, and that would be a material consideration. If an organisation was trying to circumvent the rules in the way it structured itself, the usual sanctions would be available.

We are interested in many different organisations, but particularly campaigning groups. A number of other exemptions already exist in the definition of “relevant publisher” that deal with campaigning newsletters—a point that the right hon. and learned Member for Camberwell and Peckham (Ms Harman) and I have discussed on a number of occasions. A public body or charity that publishes news-related material in connection with carrying out its functions, or a person who publishes a newsletter, circular or other document relating to their business that contains news-related material only incidentally, will not be caught by the self-regulatory approach. Such things will be exempt from these measures, which is important. News, and the delivery and publication of news, is not central to a company’s business, and I underline that point for all questions raised by hon. Members. Hopefully, that will provide some certainty on campaigning groups.

The fourth point raised by the hon. Member for Bishop Auckland was access to arbitration for those that may not be termed as “relevant publishers”, other than those that are micro-businesses—excuse me, Mr Deputy Speaker, for getting into the weeds with this, but it is necessary to answer the hon. Lady’s questions. Our consideration of micro-businesses in connection with blogging was to ensure that we did not unintentionally capture those businesses within the self-regulatory system, and also to ensure that those businesses were able—should they choose—to opt in to the self-regulatory part of the framework if they felt that was beneficial. It was never our intention more broadly to allow people to become a “relevant publisher”, not least because that would be outside the scope of today’s discussions. It is not our intention to allow people who are not relevant publishers in that way to have access to that status over and above the exemption we have outlined. Anything to do with the running of the self-regulatory regime is for the press to consider in more detail. We did not intend to cover that in our proposals today—the hon. Member for Bishop Auckland has raised that matter with me.

The hon. Member for Cambridge (Dr Huppert), speaking for the Liberal Democrats, raised the final issue of the definition of “blog”. We are comfortable that there is a clear articulation of “blog” and “news”. Blogs are to do with the expression of the point of view of an individual or group of individuals. That is pretty straightforward, although, as with everything else, it will be subject to the courts’ deliberations at the appropriate time.

Finally, the hon. Member for Bishop Auckland implied that the Government believed an error had been made on micro-blogs, which therefore required an amendment. I should gently tell her that we feel that the measure was reasonably clear to start with, but that the amendment adds extra clarity. In that spirit, I thank you, Mr Deputy Speaker, for allowing me to explain the amendments. I also thank the hon. Lady for her support, and the hon. Gentleman who spoke for the Liberal Democrats for his support.

Lords amendment 17A agreed to.

Lords amendment 17B agreed to.

Government amendments (a) and (b) made in lieu of Lords amendment 131A.