Leveson and Legality: Implementation of the Report would not be 'illegal'
by Hugh Tomlinson QC
According to the “Mail on Sunday” the Leveson assessor and Liberty Director Shami Chakrabarti has “delivered the bombshell verdict that his demand for compulsory press regulation would be illegal”. The BBC has, in turn, reported the story under the headline “Leveson report proposals ‘would be illegal‘”. This is distortion of Ms Chakrabarti’s views which, as is clear from the report, relate to matters which do not form part of its recommendations. In any event, Ms Chakrabarti’s analysis is wrong in law. The suggestions made in the report to which she refers are lawful and in no way inconsistent with the Human Rights Act 1998.
It is first necessary to look at what Ms Chakrabarti actually said. The “Mail on Sunday” quotes her as saying
In a democracy, regulation of the press and imposing standards on it must be voluntary. A compulsory statute to regulate media ethics in the way the report suggests would violate the Act, and I cannot support it. It would mean the press was being coerced in being held to higher standards than anyone else, and this would be unlawful.
This does not relate to the recommendations concerning “recognition” of an independent voluntary regulator by Ofcom or some other system established by statute. Ms Chakrabarti’s views on this are set out in the Report in a footnote to the recommendation that Ofcom be the recognition body:
Shami Chakrabarti has advised that she prefers this role to be fulfilled by the court but I do not see how the court, of its own motion, could adopt an adjudicative role in relation to certification or subsequent review. Somebody would have to be prepared to challenge either the extent to which the new body fulfilled the requirements of the legislation or the proposition that it should continue to do so. If that was Ofcom, and Ofcom raised no objection, there would be nothing upon which the court could adjudicate. Thus, the decision would become whether Ofcom was satisfied. A very similar role would be available to the court if there was an appeal from an adverse decision of Ofcom (which could allow a merits challenge rather than be limited to the more restrictive justification for intervention that is provided by judicial review (fn 56, p.1775)
In other words, Ms Chakrabarti does not suggest that the implementation of any Leveson recommendations would be illegal. Although she disagrees with the proposal for recognition by Ofcom, she does not argue that this would be in any way incompatible with the Human Rights Act 1998. And she is obviously right not to make such a claim. Any argument that the implementation of the modest proposals in the Leveson Report would be illegal is plain wrong.
So what was Ms Chakrabarti talking about? Her comments in the “Mail on Sunday” in fact relate to a different point which do not form part of the Leveson recommendations at all. They relate to the discussion in Part K, Chapter 8 of the Report – entitled “The Alternatives” – in which Lord Justice Leveson considers what would happen if the press
fails to deliver the independent regulation that is required and that the public have a right to demand. If, however, the industry were unwilling, or unable, to come forward with a credible proposal for independent regulation then it would have demonstrated sufficient disregard for the public interest to have established that self-organised regulation simply is not an effective option.
In this Chapter – which deliberately includes no recommendations – he sets out his views on what a “backstop regulator” would look like. Ms Chakrabarti’s views are made clear in the Report which, after recording that Elinor Goodman and George Jones advised that it was not necessary for him to make a recommendation about what should be done if the press did not accept the preferred option (advice which he appears to have accepted), states
I also record that Shami Chakrabarti advised against the contemplation of any element of compulsory backstop standards regulation of the press in the event of the inability or unwillingness of the press to implement the recommendations in this Chapter; she would prefer in that event to see a strengthening of the financial assistance available to those who feel their rights have been abused by the press in order to help them defend those rights in court (Fn44, p.1758.)
So, Ms Chakrabarti’s point appears to be a narrow one: that if the press failed to accept the report’s preferred option of an independent voluntary self regulatory body and compulsory regulation was imposed by statute this would be incompatible with the Human Rights Act 1998. The basis for this opinion is not explained and I believe that it is also wrong.
The report quotes my evidence to the Inquiry that regulation of the print media could, in some circumstances be compatible with the ECHR, particularly if limited, for example, to a set of mandatory standards for publications with a large circulation, but that general regulation which might amount to a licensing regime would not (pp.1655-1656). I have analysed the legal arguments in more detail in a previous post on Inforrm. My conclusion was
although the Council of Europe has strongly promoted self-regulation it is likely that compulsory regulation of the print media will not, of itself, be incompatible with the requirements of Article 10. Compatibility will depend on the precise form of compulsory regulation which is proposed and the justifications for it.
Article 10(2) of the ECHR reminds us that the exercise of freedom of expression
since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or rights of others
There is no case law of the Court of Human Rights which suggests that this prevents the statutory regulation of press standards. After all, broadcasters (who, like the press, exercise the right to freedom of expression) are subject to statutory regulation across Europe. None of the press regulation regimes in other Council of Europe countries have been declared incompatible with Article 10 on the basis that “press standards must be voluntary”. This is not a requirement of the Convention.
Ms Chakrabarti is quoted as saying, of Hacked Off – of which I am the Chair
I understand that people who have been wronged want action. But they should be interested in outcomes, rather than particular processes. The outcome they should be seeking is a free and vibrant press with access to justice for the public when things go wrong. We can achieve this without legislation, which may have serious unintended consequences. Unfortunately, there has been a great deal of ill-informed debate, with people bandying about terms such as “statutory underpinning” with little grasp of what this would mean.
Hacked Off is certainly interested in outcomes rather than particular processes and we are interested in a free and vibrant press with access to justice where things go wrong. We part company, however, on the need for legislation. For over sixty years the press has promised to “put its house in order” but, as the Leveson Report makes clear, has only ever done anything when threatened with statutory intervention.
The suggestion that legislation “may have serious unintended consequences” does not bear serious examination. This is the idea that there is a “slippery slope” leading to state control of the press. As I said in a previous post on this blog:
The problem is that there is no evidence to support it. No one ever gives concrete examples from history to show how regulation has led inexorably to control. And history is entirely against it. Judges, lawyers and of course broadcaster are subject to statutory regulation but there is no “slippery slope” showing increasing state control over judicial decisions or the content of ITN news broadcasts.
Ms Chakrabarti is right. There has been a great deal of ill-informed debate – it is be found in the pages of the British press who have, over the last few months, debased even their own low standards of analysis and objectivity and have presented the public with a wholly distorted and one-sided account of the debate. Statutory underpinning does not equal state control of the press. Like any other group in our society, the press must be held to proper standards in the public interest. The Leveson recommendations are a minimum programme for seeking to achieve this.
Hugh Tomlinson is the Chairman of Hacked Off.