by Brian Cathcart
When he responded to the Leveson report in November David Cameron welcomed it in general, but expressed doubts about the recommendation for a statutory ‘recognition body’ to ensure that the press’s own self-regulator was properly independent and effective. The Prime Minister said that underpinning this body with statute would ‘mean for the first time we have crossed the Rubicon of writing elements of press regulation into the law of the land’.
This concern, as many commentators pointed out, was without foundation. Some ‘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 (though in that case it is largely to provide exemptions). In any case the recognition body would have no role in regulating the press; it has a different job.
None the less, on the basis of Mr Cameron’s false Rubicon, Conservative ministers have refused to implement the Leveson recommendations on regulation through statute. Instead the policy minister Oliver Letwin has proposed establishing the recognition body by Royal Charter.
This is a bizarre and cobwebby procedure under the royal prerogative, complete with medieval language, vellum scroll and seal. It by-passes the democratic processes of parliament in favour of the privy council – in practice, a group of serving ministers. The idea that it could be used to implement Leveson has been criticised from all parts of the political spectrum, most recently by former journalist and Tory cabinet minister Lord Fowler.
In meetings with Hacked Off in December and early January, Mr Letwin none the less insisted that a charter could deliver the entirety of the Leveson recommendations on regulation without any weakening or dilution. On that basis we said we would reserve judgement and consider it when it was ready. A delay of nearly a month followed, and the charter proposal will finally be published this week.
Will it really deliver Leveson in full, or has Mr Letwin produced something that will serve the press rather than the public? The devil may be in the detail, but here are three clear tests we can start with:
Test 1: Is the body created in the charter independent of Government?
This charter must not be (as they normally are) amendable by ministers, because that would allow them to interfere, with a view either to undermining the free press or (more common in recent times) to doing its bidding. Mr Letwin suggested to Hacked Off that this protection would be achieved through special legislation protecting the charter from amendment without the consent of both houses of parliament. At the very least, therefore, such legislation has to be part of the package, and failure to include it would be a sure sign of retreat in the face of press pressure.
Test 2: Is the body created in the charter independent of the press as well as the politicians?
This is about the ‘members’ of the chartered body and the people who get to appoint them. The members’ job is to ensure, on behalf of the public, that the press self-regulator meets basic standards, so it is obviously no good having people doing this job who are from the industry itself, or who have press connections. Nor should such people be involved in making the appointments. Similarly we have to rule out politicians, and people appointed by politicians. It is only right, given the failures of the past and the damage caused, to go to great lengths to ensure independence.
Test 3: Are the recognition criteria the ones set out in the Leveson report?
This is a kind of checklist set out by the judge, giving the essential characteristics of a press self-regulator that will be capable of protecting the public and upholding standards. The criteria are carefully balanced and thought out and must be written into a charter in the clearest of terms – otherwise the press will wriggle out of any meaningful accountability. We know that the editors and proprietors do not like some of Lord Justice Leveson’s criteria and if some of them are left out of the charter, or if they have been tampered with or diluted, that will be another sure sign of press pressure and Conservative retreat.
Criteria to watch
If you want to see the recognition criteria in full, look at our draft Leveson Bill. Scroll down to Schedule 1, and they are listed there.
At their meeting at the Delaunay restaurant on 5 December 2012, just a week after the report was published, editors already wanted to ditch or dilute a number of these criteria. It will be interesting to compare the Delaunay memo to the charter, to make sure that Mr Letwin has not allowed them to do this.
Key signs of press influence on the terms of the charter would be whether the following requirements for the regulator are found in the charter:
- That the appointment panel for the board members of a self-regulatory body should have a ‘substantial majority’ of independent members, one person with understanding of the press and no more than one current editor (Leveson Recommendation 3). In contrast, the editors wanted no lay majority and demanded a veto.
- That the standards code should ultimately be the responsibility of the regulator – advised by a code committee (Leveson Recommendation 7), which itself would not have a majority of serving editors (Eexecutive Summary para 60). The editors wanted the code to be an ‘editors’ code’, written by a committee with no limitation on industry domination.
- That the regulator should have the power (but not the duty) to hear third party complaints (Leveson Recommendation 11). This is essential because most kinds of press inaccuracy do not affect one single individual but many people, and without third party complaints these won’t be addressed. The editors described this as ‘not acceptable’ and wanted the regulator only to have power to hear such complaints if there was a ‘substantial public interest’.
- That the regulator must have power to direct the nature, extent and placement of corrections and apologies (Leveson Recommendation 16). The editors wanted this power weakened.
- That the regulator would have no power to prevent publication but could give pre-publication advice which editors could, in their discretion, deploy in civil proceedings (Leveson Recommendation 17). The editors wanted the reference to deployment of advice in civil proceedings to be deleted.
- That the regulator should provide an arbitral process which should be should be ‘fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious)’ (Leveson Recommendation 22). The editors indicated that they found an arbitral process acceptable but made no comment on the other points. The process being ‘free for complainants to use’ is an important feature.
If the Royal Charter released by the Conservative members of the government next week fails to keep to Lord Justice Leveson recommendations on these points then it is unlikely that it will satisfy any supporters of the Leveson proposals. If the charter is not protected by statute, does not have wholly independent members and makes concessions to the press on any key recognition criteria it will not command broad support. More importantly, it will not work and it will not protect the public from press abuses. We will be back where we started.
Brian Cathcart is director of Hacked Off and tweets @BrianCathcart.