Dodgy Fax Only Source of Media Regulation Laws Voted on by MPs


Tuesday, March 19th, 2013. 3:25am

Dodgy Fax Screenshot

Image of the dodgy fax – the only route via which proposed new media regulation laws debated and voted on by MPs leaked out to the public on Monday 18 March 2013.


There was a massive failure of transparency in the way the House of Commons operated on Monday the 18th of March 2013 in relation to the debates on proposed new press regulation laws.

Two key documents which were debated were not publicly available online from an official source prior to the debate. They are:

The Amendments

A scanned fax version of amendments debated were published by Guy Fawkes’ Blog at 15.18 and at 15.25 by Index on Censorship. The fax was timed 14.44 and was to: 902072190107 (reformatted this becomes 9 for an outside line followed by 0207 2190 107). Given the House of Commons switchboard is 0207 2190 3000 that looks like an internal House of Commons number.

At the time of writing, around twelve hours on, the usual official source of amendment papers; the Bill documents — Crime and Courts Bill [HL] 2012-13 page on Parliament’s website is still not providing them. I would expect them to be present under the “Amendment papers” heading. Though confusingly there is an amendment paper dated with the day of the debate, it does not contain the actual amendments debated. In order to check the current amendments had not been appended to the published material I had to go through the crazy process of clicking “continue”, scrolling down a page of text, and clicking continue, a number of times during the day and again before publishing this article. For those who’ve not used Parliament’s website much this is a core element of their unique user experience across the site.

A scanned fax emerging on various websites is not the way this information ought to have been published. It’s important documents like this are available from an official, trusted, source, so they can be easily found and so there is an assurance they are authentic.

It’s not clear if the fax is was a leaked document. If it was an official communication it raises the question of why the Parliament website is not used as the primary means of communication and why our Parliament is still operating in a world where a Fax is even used, never mind, considered the best way to disseminate information to the public.

The Charter

Until after the emergency debate had concluded the only version of the draft charter available was the superceeded version from the previous week it was only after the Prime Minster during his concluding remarks revealed the existence of a new version, agreed by all party leaders, that it was marked superseded online and the new one published. (I used the Gov.UK per-page feedback system to note the document had been superseded and urge this be noted as it later was).

Failure Raised in Parliament


Chris Bryant MP raised the matter in the House of Commons before the debate:

On a point of order, Mr Speaker. I am sorry to do this, but it is all very well to talk about the publication of the draft charter, but it is not available in the Vote Office or in the Library. The Clerk has a copy of it but hon. Members do not have copies of it. It is an odd way of doing business for us to debate something that we have never had an opportunity to see.

The Speaker dismissed Mr Bryant’s complaint:

I say to the hon. Gentleman, whom I thank for his point of order, that my copy and that held by the Clerk came from the Vote Office. Therefore, my understanding is that copies of the document are lodged in the Vote Office, and I say that only on the basis of my experience. If copies are not so lodged, they most certainly should be. I can deal only with the exigencies of the situation as they arise.

My view is that in the modern world if material of this nature is not available online then in practice it has not been published irrespective of it it has been “lodged” in an an office or not. This being Parliament who knows what “lodged” means or even if the “Vote Office” is an office (it appears to be the “document supply” department).

Mr Bryant’s complaint only extended to the draft charter, and not the failure to publish the amendment papers online.

Confusion

The failure to publish the current versions of the documents caused confusion among many people commenting on proceedings throughout the day. Even those producing BBC’s Newsnight which went out late in the evening quoted from the outdated versions of the amendments rather than those which were actually debated. (Update 19/03/12 this isn’t quite right- see my update in the comments).

An article on Politics Home by it’s Editor Paul Waugh also linked to the outdated documents.

These errors are understandable as Parliament’s official website wasn’t carrying the up to date material.

If professionals, and even our well funded state broadcaster which almost all of us are compelled to fund, don’t know what our MPs are debating, what hope have the public at large who might want to lobby their MPs in advance of the debate and any possible vote?

There are legions of publicly funded staff in the BBC and in Parliament who really ought be getting this sort of thing right. It really is the basics of what they ought be doing, right at the core of the functioning of our democracy.

Does It Matter?

The charter is in draft form, and the amendments are still to go through the House of Lords. It appears the charter also goes further than the government intended in relation to regulation of material online; so we’re in the middle of a process; not having access to the latest version of the documents would be more important had these been final versions.

There was a vote in the Commons on the reading for the second time of clause 21A . Clause 21A is one of those which is in the unofficially published fax but was not on Parliament’s website. It’s really critical that we can easily find out exactly what our MPs have been voting on.

Is how significant the differences between the versions of the charter and the amendments available to the public, and those actually being debated important? (ie does it not matter if the changes are considered “manuscript amendments”?) I’d suggest you have to have the latest version at least just to check how significant any changes are. (See the comments below where I have placed both versions of the clause actually voted on are presented – they are in my view significantly different).

4 comments/updates on “Dodgy Fax Only Source of Media Regulation Laws Voted on by MPs

  1. Richard Taylor Article author

    So does New Clause 21 (NC21) Differ from NC21A?

    New Clause 21
    Source – Official Amendment Sheet Published by Parliament

    • (1) This section applies where—
      • (a) a relevant claim is made against a person (“the defendant”),
      • (b) the defendant was a relevant publisher at the material time,
      • (c) the claim is related to the publication of news-related material, and
      • (d) the defendant is found liable in respect of the claim.
    • (2) Exemplary damages may not be awarded against the defendant in respect of the
      claim if the defendant was a member of an approved regulator at the material
      time.
    • (3) Where the court is not prevented from making an award of exemplary damages
      by subsection (2), the court—
      • (a) may make an award of exemplary damages if it considers it appropriate
        to do so in all the circumstances of the case, but
      • (b) may do so only under this section.
    • (4) Exemplary damages may be awarded under this section only if they are claimed.
    • (5) Exemplary damages may be awarded under this section only if the court is
      satisfied that—
      • (a) the defendant’s conduct has shown a deliberate or reckless disregard of
        an outrageous nature for the claimant’s rights,
      • (b) the conduct is such that the court should punish the defendant for it, and
      • (c) other remedies would not be adequate to punish that conduct.
    • (6) Exemplary damages may be awarded under this section whether or not another
      remedy is granted.
    • (7) The decision on the question of—
      • (a) whether exemplary damages are to be awarded under this section, or
      • (b) the amount of such damages,must not be left to a jury.’

    New Clause 21A
    (Source Hansard / Today’s Commons Debates, no permanent link available yet)

    Awards of exemplary damages‘

    • (1) This section applies where—
      • (a) a relevant claim is made against a person (“the defendant”),

      • (b) the defendant was a relevant publisher at the material time,
      • (c) the claim is related to the publication of news-related material, and
      • (d) the defendant is found liable in respect of the claim.
    • (2) Exemplary damages may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.
    • (3) But the court may disregard subsection (2) if—
      • (a) the approved regulator imposed a penalty on the defendant in respect of the defendant’s conduct or decided not to do so,

      • (b) the court considers, in light of the information available to the approved regulator when imposing the penalty or deciding not to impose one, that the regulator was manifestly irrational in imposing the penalty or deciding not to impose one, and
      • (c) the court is satisfied that, but for subsection (2), it would have made an award of exemplary damages under this section against the defendant.
    • (4) Where the court is not prevented from making an award of exemplary damages by subsection (2) (whether because that subsection does not apply or the court is permitted to disregard that subsection as a result of subsection (3)), the court—
      • (a) may make an award of exemplary damages if it considers it appropriate to do so in all the circumstances of the case, but

      • (b) may do so only under this section.
    • (5) Exemplary damages may be awarded under this section only if they are claimed.
    • (6) Exemplary damages may be awarded under this section only if the court is

      satisfied that—

      • (a) the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights,

      • (b) the conduct is such that the court should punish the defendant for it, and
      • (c) other remedies would not be adequate to punish that conduct.
    • (7) Exemplary damages may be awarded under this section whether or not another remedy is granted.
    • (8) The decision on the question of—
      • (a) whether exemplary damages are to be awarded under this section, or

      • (b) the amount of such damages, must not be left to a jury.’.—

    There is a substantial difference there; the version MPs actually voted on (21A) contains, in the additional section 3, a whole additional section which appears to me to have the effect of saying that membership of a regulator does not actually prevent an award of exemplary damages after all ie. the carrot that’s supposed to tempt publishers to sign up to regulators isn’t actually there.

    The “dodgy fax” amendment sheet describes amendments with an A in them as being “manuscript amendments”; as I’ve noted above the difference between “21″ and “21A” looks substantive to me.

    1. Richard Taylor Article author

      I’ve checked and the added section 3 doesn’t appear at all in the amendments published on the Parliament website. It’s not a drafting correction/edit where something has been moved.

      Even if it was something merely being moved; its crucial to have the accurate detail easily and consistently available about exactly what MPs are, and have, voted on. In this case the full clause appears to be going to appear in Hansard so the issue isn’t with working out what MPs did historically isn’t a problem. The issue know what they were considering before hand, and at, and in the hours after, the vote.

  2. Richard Taylor Article author

    My view on the substance of the legislation and charter is that I’d rather not have it.

    Our existing criminal law is sufficient to deal with criminality by journalists; hopefully we’ll move towards having an effective and accessible libel law soon too.

    On a more flippant point – if MPs really want to regulate some aspect of the press – perhaps they could encourage the use of block capitals for acronyms again?

    One element of the wording which the majority of voting MPs supported which I do quite like is:

    reckless disregard of an outrageous nature

    I think it’s a shame that is only being considered in relation to exemplary damages awarded against publishers; I’d like to see that kind of threshold applied more generally. Take cycling offences (which the police are running a crackdown on where I live) I’d much prefer it if action was only taken in cases of “reckless disregard of an outrageous nature”.

  3. Richard Taylor Article author

    Now the Newsnight film is available on the BBC website I can see the Newsnight slides featured NC29 and NS5

    NC29 and NS5 are on the officially published amendment sheet and mentioned on the dodgy fax; and no updated version is given in the fax.

    NC29 headed Meaning of “relevant publisher” and Goverment new Schedule 5 were among those elements of the proposed new law recorded in Hansard has having been debated with the text of NC29 given in full.

    So while Newsnight didn’t quote from the element of the proposed new law which went to a vote, or any other of the changed amendments present only on the fax, what they quoted was debated by MPs. I’ve transparently updated my article in light of this.

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