Abstract
Contrary to some reports, there's no Sword of Damocles hanging over the press, argues a leading Hacked Off campaigner
Let us look at some of the things that Lord Justice Leveson did not propose in his report that we were told, in the frenzied weeks before publication, he was likely to propose.
He did not impose statutory regulation, still less state regulation. Last November a newspaper-backed organisation took out full-page advertisements in friendly papers warning that Leveson was likely to impose regulation of the press of the kind practised in North Korea, Zimbabwe and Syria. Another series of advertisements asserted that critical reporting of politics, or investigation of politicians, would become impossible. In fact, not a single witness at the inquiry had suggested anything of the kind, and Leveson never considered it.
He did not wave a Sword of Damocles to intimidate the press. Some previous inquiries into press standards issued warnings that if there was no change there would have to be statutory regulation. Leveson looked back on the repeated failures to deliver on such threats and refused to play the same game. His report discussed options for what might happen if his proposals can't be put into effect, but he made no recommendation on the subject.
He did not propose the licensing of newspapers. A case was made that if participation in a regulatory regime was made compulsory, publications that refused to join could face closure, which would amount to the reintroduction of newspaper licensing. At least one editor, in advance of publication of the inquiry report, declared his willingness to be the first Leveson martyr, so strongly did he feel on this point. Leveson's press regulation proposals did not involve compulsion. A publication that stayed outside his scheme might face inconveniences and additional costs, but there is no question of it being closed or its editor going to jail.
He did not name and shame editors. Having examined newspaper conduct in some detail the judge had it in his power to criticise particular titles and editors, and goodness knows he had grounds. Some papers invested great effort in shielding themselves from his wrath but, in keeping with a general policy of avoiding who-did-what judgments, Leveson kept his comments general, and conscientiously reminded his readers that most newspaper journalism is good.
Nor did he propose pre-publication regulation, or place the press under the control of Ofcom, or introduce a statutory right of reply, or create something outlandishly expensive, or set up a taste and decency police, or any other of the apparently alarming things that British newspaper readers had been so urgently warned he was preparing to do. What he did instead was this: he painted a dark picture of decades of press wrongdoing that cruelly affected thousands of innocent people and then he offered the editors and proprietors a deal so generous that, if something similar were offered to bankers or NHS administrators, many newspapers would probably denounce it as an insult to victims.
Voluntary self-regulation is enjoyed by few
Lord Justice Leveson said the industry should be given another chance to create and run its own independent self-regulator. Membership, as we have seen, would be voluntary, though there would be some disadvantages to failing to join in terms of things such as court costs. Voluntary self-regulation is a privilege enjoyed by few who serve the public. Doctors and lawyers, water suppliers and taxi drivers, art therapists and social workers, politicians and police officers, supermarket retailers and builders – they are all subject to external regulation. But Lord Justice Leveson wants the press left to regulate itself.
It must be obvious to everyone, however, that the judge could not stop there, since the inevitable consequence of simply letting them get on with it would be a rapid return to the status quo ante, with abuses rife and a remade Press Complaints Commission busy putting the interests of the papers before those of the public. Even if editors and proprietors had shown appropriate remorse at the inquiry – and they did not – history tells us that, over time, they can't be trusted to regulate their own conduct. So the judge took some cautious additional steps to protect the public. He proposed a recognition body.
This would be set up under statute to be totally and demonstrably independent of both the press and politicians, and it would have a crystal-clear remit to ensure that the press self-regulator met the basic standards needed to protect the public and provide adequate redress. Importantly, it would have no engagement in regulation or complaints handling. At the beginning and thereafter once every two or three years it would simply inspect the self-regulator and ensure that it met the criteria that have been set out by the judge. If the self-regulator did not meet the criteria it would have a chance to get itself in shape, but if there were a sustained failure then recognition would be denied and errant member publications would lose the benefits of membership.
So under the Leveson plan the press would be allowed to self-regulate, with the one proviso that, to prevent a return of the PCC, there must be an effective, independent inspection regime with a clear remit. Given the history, and given the wrongs of which important parts of the industry stood convicted, this would surely be seen by most people as a modest proposal, and they could reasonably expect journalists and editors to welcome it. This wasn't Draconian, after all, and it offered an opportunity to build a new relationship of trust with the public. Journalists should have nothing to fear from effective self-regulation. If they have high standards and if they respect the public they serve – and all papers say they do – they should welcome being held to a good code of practice. Many in the public might think that journalists would want the world to know they were subject to an effective, independent regulator and so would not be likely to inflict needless pain on grieving families or to steal personal information without justification.
National papers, however, did not welcome the proposals. Their reaction, as Sir Harold Evans remarked in his recent Cudlipp Lecture, was marked by “cynicism and arrogance”. He went on: “… the misrepresentation of Leveson's main proposal is staggering. To portray his careful construct for statutory underpinning as state control is a gross distortion.” In truth, however, the public fulminations of editors and the distortions of their reporters probably matter very little now. The opinion polls show such a consistently high level of public contempt for the arguments of the press, going back long before the report was published, that it is clear most people no longer believe what they read in the press when it concerns the press. Much more important is the reaction of the politicians to whom Lord Justice Leveson reported.
It is worth pausing here to recall that the conduct of politicians was almost as important in the Leveson inquiry as the conduct of the press, indeed the two were, at times, difficult to separate. As he was with the press, the judge was critical of politicians only in general terms in his report, but he made clear that political leaders had been too close to newspaper executives over a long period and that this had been damaging to the public interest. Politicians, he said, now had an obligation to show the utmost transparency in these matters, and there would be an “immediate need” for maximum openness around the publication and consideration of his report.
The response of Conservative leaders, and to a lesser degree other politicians, has been almost a parody of what Leveson called for. First, David Cameron, the prime minister, who had previously stated that “we will have to be guided by what the inquiry finds”, declared immediately the report was published that he was reluctant to underpin the recognition body with statute – which the report declared to be “essential” – on the grounds that it would “mean for the first time we have crossed the Rubicon of writing elements of press regulation into the law of the land”. This was a scruple he had never before revealed, either in parliament or under oath at the inquiry, or for that matter in three meetings with Hacked Off. It is also, as has been very widely pointed out, a groundless scruple, since “elements of press regulation” have been part of the law of the land for many years: for example, the Data Protection Act 1998 applies directly to the press.
Ministers did what Leveson said would be damaging
Under cover of Cameron's scruple, ministers proceeded to do almost everything that Leveson in his report had told them would be most damaging to the prospects of success. They inaugurated a series of cross-party meetings which were not usually announced, and from which agendas and minutes were never made public. They entered private negotiations with editors and proprietors and their employees in a way that Leveson had said would definitely undermine public trust. They publicly waved a Sword of Damocles, promising statutory regulation in just the way that Leveson had carefully avoided, if things went wrong. Cameron talked to Rebekah Brooks (who was awaiting trial, no less) at a party, while three senior ministers dined with Rupert Murdoch. And behind the scenes, ministers embarked on a peculiar plan to introduce Leveson recommendations by royal charter.
Hacked Off was founded to campaign for a public inquiry into hacking and press standards, and went on to give voice to the views of victims of press abuses and many other supporters who care about the state of the press. We greeted the Leveson recommendations with two cheers. As Gerry McCann, the father of Madeleine, said at the time, it was the “minimum acceptable compromise” for us – a generous deal for the press, but one we were prepared to support in the hope that it would deliver higher ethical standards and better protection for the public without threatening freedom of expression. The prime minister's stance we found bizarre and suspicious, given his past promises that the voice of the victims was paramount, and that he would implement Leveson if it was not (his word) “bonkers”.
Since November we have lobbied ministers and other political leaders relentlessly to be more open about what they are doing, and also to proceed by straightforward means to putting the Leveson regulatory proposals into action. We drafted a Leveson Bill that follows as closely as possible the judge's recommendations, including a landmark clause guaranteeing press freedom, and we have made it public and sought opinions on it (www.hackinginquiry.org). We have met ministers and others – and made those meetings public.
When, after a long ministerial silence, the royal charter proposal was finally made public, we were shocked. Instead of delivering “the whole of Leveson”, as ministers and even the prime minister had assured us it would, it was drastically watered down and compromised. The charter itself would be open to meddling by ministers – all chartered bodies are the playthings of the Privy Council. The press, inexplicably, would have a role in choosing members of the inspecting body. And the detailed inspection criteria set out by Leveson were altered wholesale to suit press interests. Indeed, ministers made no attempt to conceal that they had done favour after favour to press representatives, and were unable to point to any aspect of the charter that reflected the wishes of any other party. It seemed that they had rolled over.
Why does this matter? Because, to repeat the point, the Leveson recommendations are already a compromise. The judge heard all parties and all of the issues and he tried to balance their views in a fair solution. He treated the press generously. It makes no sense, once he has reported, to treat his recommendations as something to be renegotiated, and especially with only one party. Moreover, the editors and proprietors were found guilty in Leveson, and they were given another chance at self-regulation only on condition that there would be an effective and rigorous inspection body to carry out checks in the interests of the public. It would defeat the object to give the press any influence over that body. The combined effect of the changes proposed in the Conservative draft royal charter would take us closer to the old world of the PCC than to the new world envisaged by Leveson.
That step backwards must not happen and it need not happen. Three-quarters of the public want Leveson implemented, statute and all. The victims of press abuse are all but unanimous in their view that Leveson is the least that should be done. The Labour and Liberal Democrat parties want Leveson's regulation recommendations implemented without dilution. So do many Conservatives, on the backbenches and the front. A recent vote in the House of Lords on amendments to introduce just part of the Leveson package was carried by a two-to-one majority. There is simply too little political weight behind this Conservative royal charter for it to be adopted in the teeth of such opposition, but the next move in the political game is not clear at the time of writing. Hacked Off, for its part, will continue to press in every way it can for the implementation of the full Leveson regulatory package, because we believe that is the best way to uphold journalistic standards while protecting citizens from abuse by the press. It is not statutory regulation, nor is it even regulation underpinned by statute. Instead it is independent self-regulation, with the self-regulator facing three-yearly inspections by another independent body that (charter or no) needs to be underpinned by statute. Given what has happened in recent years, that is a very good deal for press journalism.