by Brian Cathcart
Contrary to what you may have read in your newspaper, the new press regulation scheme approved in parliament last month gives the government no powers over news publishers, indeed it very carefully prevents governments from interfering with the press.
The scheme, to be established by royal charter [pdf], introduces the plan proposed by Lord Justice Leveson last November. In his report the judge made clear many times that what he was suggesting was independent self-regulation, and that politicians should have no role in it whatever.
He wrote for example [pdf], that there was universal agreement on the need to protect press freedom:
Although the contrary is often asserted, not a single witness has proposed that the government or that parliament should be able to step in to prevent the publication of anything whatsoever. Not a single witness has proposed that the government or parliament should themselves be involved in the regulation of the press. I have not contemplated and do not make any such proposal.
Elsewhere, after commenting on press wrongdoings, he noted [pdf]:
None of this, however, is to conclude that press freedom in Britain, hard won over 300 years ago, should be jeopardised. On the contrary, it should not.
And the Judge stressed that what he proposed “would not give any rights to parliament, to the government, or to any regulatory (or other) body to prevent newspapers from publishing any material whatsoever.
The Judge’s recommendations as embodied in the charter are for the most part simple and straightforward. Where they become complicated it is usually because of the lengths to which they go to ensure that the regulation system is independent.
Under the Leveson scheme, the press sets up its own self-regulator, which must be independent of both the press industry and politicians (unlike the Press Complaints Commission). And to ensure that it really is independent, it must undergo an inspection every three years by a new body known as the ‘recognition panel’.
The royal charter creates the recognition panel, making sure that it too is independent, and setting out the criteria by which it will judge whether the self-regulator is fit for purpose.
So there are two bodies, the self-regulator and the recognition panel, and under the charter both are protected from political interference in every way possible.
Independence of the self-regulator
Clause 1 of Schedule 3 of the charter states:
An independent self-regulatory body should be governed by an independent board. In order to ensure the independence of the body, the chair and members of the board must be appointed in a genuinely open, transparent and independent way, without any influence from industry or government.
Clauses 2 to 5 make clear that the board and its chair must be chosen by an appointment panel which must itself be selected in a way that is independent of the industry and of government.
Clause 5e states that no MP and no peer who has recently taken a party whip can be member of the board or chair of the self-regulator. (Three of the five chairs of the PCC were politically-active Tory peers). Members of devolved legislatures are also excluded.
Clause 6 sets out the funding arrangements for the self-regulator and leaves no room for political interference by this channel.
Independence of the recognition panel
Schedule 1 of the charter sets out how the first group of board members of the recognition panel should be chosen. Again, this should be “a fair and open process”, and again there must be an independent appointments panel.
This four-member appointments panel is chosen by the Commissioner for Public Appointments and the chair will be a Public Appointments Assessor. No government minister or other party political figure may be involved in this process in any way.
Ministers, MPs, peers with party affiliation and members of devolved legislatures are explicitly excluded (paragraph 2.3) from membership of the appointments panel, just as they are from the board of the recognition panel and from its staff.
After the first board is chosen the appointments panel is dismissed and the board of the recognition panel itself takes responsibility for appointing its own successors. Ministers have no power to dismiss board members; only the board itself can do that.
The recognition panel will be funded by fees paid to it by the industry. Its start-up funding comes from the Exchequer, which is required by the charter to “grant to the recognition panel such sums of money as are sufficient”. Further, “the Exchequer shall grant such sums to the recognition panel as it considers necessary to ensure that the purpose of the recognition panel is not frustrated by lack of funding”.
Preventing political meddling with the charter itself
Chartered bodies are normally subject to interference by the Privy Council, which is a committee largely composed of serving ministers and has the power to change charter terms more or less at will. Special measures have been taken to ensure that in the case of this royal charter, no such political interference is possible.
Clause 9 of the charter says that only the recognition panel itself can propose any change to the terms of the charter, and paragraph 9.2 states:
Before any proposal (made by any person) to add to, supplement, vary or omit (in whole or in part) a provision of this charter . . . can take effect, a draft of the proposed change must have been laid before parliament and approved by a resolution of each house. For this purpose ‘approved’ means that at least two-thirds of the members of the house in question who vote on the motion do so in support of it.
As lawyers were quick to point out, this paragraph in itself has no force in law: a clause in a charter can’t bind the Privy Council because it is the Privy Council that has legal power over the charter.
So on 18 March, with cross-party approval, the House of Lords added a new clause to the Enterprise and Regulatory Reform Bill which says:
Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.
In the words of one of the proposers, Lord Stevenson of Balmacara:
This amendment, although it is couched in general terms, ensures that the agreed royal charter on self-regulation of the press may not be amended by ministers through the Privy Council unless parliament has given its prior approval to the changes. It is therefore an important entrenching measure…
In short, just as all three main parties have agreed to back the royal charter on press self-regulation, so they also have agreed to pass into law a measure designed to take away from politicians any power to influence the recognition body.
Of course, this clause can not provide cast-iron protection – like all legislation it can be changed by a future parliament. But if that is done it will have to be after public debate, so at the very least the clause prevents covert, back-door interference by politicians.
Other protections for press freedom
– Under the charter the press standards code is written mainly by journalists. This is the core document of the regulatory system: if members of the public want to complain, they have to show that this code has been breached. Schedule 3, clause 7 lays down that the code is written by a committee composed of one-third editors, one-third working journalists and one-third independent members, though it must be approved by the independent board of the self-regulator. Clause 8 states:
The code must take into account the importance of freedom of speech, the interests of the public (including but not limited to the public interest in detecting or exposing crime or serious impropriety, protecting public health and safety and preventing the public from being seriously misled), the need for journalists to protect confidential sources of information, and the rights of individuals…
– The regulator can’t stop anybody publishing anything. Its powers arise only after publication. Clause 17 puts it plainly:
The board should not have the power to prevent publication of any material, by anyone, at any time although (in its discretion) it should be able to offer a service of advice to editors of subscribing publications relating to code compliance.
– Membership of the self-regulator is not compulsory for any news publishers. There are carrots and sticks in terms of legal costs, so it might prove expensive to remain outside, but any news publisher determined to remain outside the system, for whatever reason, is free to do so.
– The recognition panel is prevented by the charter from having any role in regulation. It may not engage with specific complaints and it will have no contact with editors or journalists unless they have roles in the regulator.
– Lord Justice Leveson also proposed that Britain should have for the first time an equivalent to the US First Amendment, formally barring governments from interfering with the press. The press itself had little enthusiasm for this idea, and it was abandoned.
There is no substance, then, to any claim that the royal charter gives politicians a new influence over the press. On the contrary, Lord Justice Leveson and those who adapted his recommendations to this charter have taken every available precaution to ensure that the new regulatory regime is safe from political interference. In fact the new self-regulator will be considerably more independent of politicians than the PCC, which for almost all of its existence was chaired by serving politicians.
The charter and the slippery slope
Finally, the argument is made that, however benign the chartered system may be, the mere fact that politicians have approved it is bad news. Politicians, it is said, should never have anything to do with press regulation and now they have taken their first step down that path other steps are sure to follow. In other words the charter, and the cross-party agreement to back it, places us on a slippery slope that could easily lead to state censorship of the press.
Here are four responses to that argument:
- 1. Politicians had no choice but to act to protect citizens from the kinds of abuses that made the Leveson Inquiry necessary. The press had had decades in which to show that it could regulate its own conduct and it failed, with the result that gross abuses were allowed to occur, sometimes on an industrial scale, and many innocent people were suffering harm. The inquiry heard evidence on this from all relevant parties, including the press itself. The Judge then recommended a scheme that posed no threat to press freedom. The press had neither the desire nor the power to make this scheme work, so our politicians had a duty to act.
2. Politicians have taken care to do the minimum necessary in parliamentary terms to pave the way for an effective, independent self-regulation system. They did not pass the Leveson recommendations into law as an act of parliament, but merely approved and welcomed the publication of the charter. And they protected the charter from political interference with a clause that by design did not even mention the press. Far from giving themselves powers over the press, they backed a raft of measures (see above) to place the system beyond their own influence.
3. Parliament has always had it in its power to pass into law measures to censor the press, and, so long as the constitution does not change, it will always have that power. It is, in other words, a permanent slippery slope towards censorship, and nothing that has happened in relation to the Leveson recommendations changes that.
4. What is striking is its extreme reluctance to use that power. Again and again since the 1940s parliament has resisted calls to act, and it has instead given the press opportunity after opportunity to regulate itself. Even when it has threatened legislative action in the past it has always backed down. And in the entire course of the Leveson inquiry and in all of the parliamentary debates surrounding it, no one has called for statutory regulation, let alone any power of censorship. There is no serious demand, in parliament or anywhere else in this country, for the suppression of press freedom.
Brian Cathcart is director of Hacked Off. He tweets at @BrianCathcart.