Lord Justice Leveson has opened up about his plans for future press regulation during yesterday’s hearing. It was not the first time the judge hinted at his thinking and discussed the possibilities for a body to replace and improve on the Press Complaints Commission – but during Tony Blair’s appearance at the inquiry he held forth for several minutes on where he saw a future body sitting in the media landscape.
Leveson made it clear the future body must work for people who cannot afford legal action, and has to be speedy and effective. He suggested a small “inquisitorial regime” to deal with privacy and small libel cases, and said it would need the ability to enforce sanctions. He was keen to remind those watching he has no interest in curbing the free press and freedom of expression.
He told Blair: “Let’s pursue the future a bit more. I’m very conscious that you said that you wanted to think about the issues a bit more, and I’d be very grateful for your assistance. As I’ve said to a number of people, as a lawyer and a judge, I’m very used to looking backwards and trying to decide what happened and reaching conclusions about the facts in that way, but as many people have said, including those at the seminars which started off this Inquiry, it’s not necessarily a given that a judge will be the best person to make recommendations for the future. It was put rather less kindly than that, but I can live with that. So whatever assistance you can give, who have thought about how you change things for the future, I’d be very interested.
“Let me give you some potential issues. First of all, I agree with you entirely that whatever comes out of this must be independent of government, independent of the state, independent of Parliament but independent of the press. It has to have expertise on it or available to it, but must command the respect of the press but equally the respect of the public. Secondly, it seems to me that it can do lots of different things. I would like to think about a system – and I don’t have answers, I’m merely throwing up questions – that provides redress particularly to those who can’t afford to litigate. You comment that your wife has started 30-odd sets of proceedings, and in different circumstances she wouldn’t have been able to do so.
“So it has to work for people who can’t afford it. It has to be speedy and it has to be effective. In other words, it has to achieve a result. ‘If it can be done collusively by mediation, that’s fine. I’ve no problem about that. I would also like you to think about another issue about that, and that’s who it should involve. At the moment, the PCC doesn’t take group complaints. So, for example – and I had a number of people giving evidence from, for example, the transgender community and other groups. I have received submissions from disabled groups, from immigrant groups, who say, ‘Well, because there’s no name in this, there’s nobody to complain, and therefore there is no mechanism to obtain redress for them.’ So the scope.
“The second is some sort of mechanism to resolve disputes. So that can be consensual, the complaint-solving thing, but a mechanism in the absence of consensual resolution. I would also like you to think about whether I can’t cope with another problem, which relates to prior notification. I well understand the reasons that the European Court gave for rejecting Mr Mosley’s [privacy] complaint. His evidence was very clear: ‘If you can stop my leg being chopped off, why would you not want to stop it being chopped off, rather than trying to stitch it back on afterwards?’ So I understand the point, but I equally understand that there is an argument that in some circumstances requiring prior notification would lead to litigation and would kill the story. So there has to be some way of drawing a line.
“I share this with you – and I don’t think I’m not saying things that I’ve not said before. One possibility might be to say there is some mechanism within the regulatory regime that allows the press to say, ‘Look, we have this story, we don’t feel we ought to notify the subject of it for these reasons: he’ll destroy the evidence’, or whatever – it doesn’t matter – and to get a view. That view doesn’t bind the editor. He’s perfectly entitled to say, ‘Thank you very much. I reject it.’ If, however, that independent person, who is really there as a check for editorial enthusiasm, says, ‘I take that point, I think that’s reasonable’, then the editor ought to be able to prove that in a court at a subsequent challenge, to say, ‘I took reasonable steps.’ It’s a Reynolds-type point.
“If either he doesn’t ask or alternatively he does ask and gets the answer: ‘No, we think you ought to notify’, then again, that doesn’t mean he shouldn’t publish, it’s up to him, but then perhaps there should be a potential regime for exemplary damages. I’m just throwing out ideas. And then you get a decision.
“But then I have another mechanism for swift resolution of privacy, small libel-type issues. Not the enormous stuff, perhaps an inquisitorial regime which can be done without lawyers, but some mechanism for members of the public to be able to challenge decisions and get a swift response. On top of all that, one has to have a mechanism that means that sanctions work. I recognise entirely the parlous financial position of much of the press, but it’s important that sanctions are taken seriously. Add to all that mix the Internet.
“Or whether the line should be drawn between conversations in a pub through tweeting, which I appreciate can go to millions, through blogs, which equally can be followed by millions or only by a few, into the press. Because I am struck by the fact that what the BBC does is covered by quite different rules to what the Guardian or News International does, or Associated Newspapers do, and yet you could look at their websites and on the face of it they’re doing similar things.
“Now, I’m not suggesting the press should become impartial. I entirely agree with everything you’ve said about that, and that is the importance that a free press brings to our society, and although I know people continually repeat that I am out to undermine freedom of the press, I will carry on saying – this is rather repetitious evidence, as you feel you’ve been driven to do over the years – that I have absolutely no interest in imperilling the freedom of expression or our free press. Absolutely none. But it does seem to me it ought to be possible to find a way of solving all that without imperilling what is important to our society.
He added: “I have absolutely no doubt that a political consensus is very important, if not critical, because one of the greatest concerns that I have is that, in the absence of such a consensus, the whole thing will become too difficult, for the very reasons you identified at the very beginning of your evidence, and I have no doubt that any Prime Minister, of whatever political situation, will have all sorts of ideas and policies which they will want to implement, if given a chance to do so… And yet what troubles me – and I’ve said this many times before – is that if you recount our history since the war, there have been four or five efforts, and it’s always ended up too difficult.
“When I said to Mr [Jeremy] Paxman that I didn’t want my report to end up on the second shelf of a professor of journalism’s study as yet another failed attempt, his only comment was to say, ‘As high as the second shelf?’… The reaction to the whole Inquiry has been itself illuminative. In part, aggressively defensive of the media’s position; in other parts, recognising that something else has to change. I hope that the press will work with a solution rather than against a solution, by recognising that the last thing I want to do is to imperil freedom of speech or a free press, and that if any suggestion I have might have that possibility, as I’ve talked about them – and I have no doubt at all that they will pore over the words I’ve just uttered to you – then I will expect to be told so, because that is not my intention. But to get a solution that will work and that is sensible most certainly is.”