On Wednesday 19 October 2011 the Lord Chief Justice, Lord Judge, gave a speech on “Press Regulation” at the “Justice” Annual Human Rights Law Conference. The speech was noteworthy for a number of reasons. Most importantly, it shows that the most senior judge in England and Wales is a supporter of the PCC and appears to favour “Reform Option 2” – PCC Plus (see our post of 29 September 2011).
The first noteworthy point about the speech is that it was given at all. As Lord Judge remarked at the outset, “It is not customary for judges to speak publicly about great issues of the moment“. He nevertheless, chose to do so – presumably because of the importance he attaches to the issues.
Secondly, the speech delivers a robust defence of Lord Justice Leveson. Lord Judge accepted responsibility for putting his name forward as the right person to conduct the inquiry.
“If he is the wrong judge to conduct the inquiry, that is not his responsibility, but mine. I have the utmost confidence in him“.
The Lord Chief Justice notes the personal criticism of Lord Justice Leveson “to which he cannot respond. That hardly advances the debate”. On this issue he comments, in relation to Lord Justice Leveson
“Knowing him as I do, he wants the utmost possible public debate of the issues, not least because he recognises their great public importance“.
Lord Judge then goes on to set out his well known views about the vital importance of the independence of the press, concluding that:
“the constitutional arrangements which underpin the independence of the press provide support for the principle of an independent judiciary, just as an independent judiciary does an independent press. These are “twin independences”, each of us utterly independent of the other, but fundamental to the welfare of the community as a whole“.
He then turns to the question of press regulation, suggesting that any system of regulation which is consistent with an independent press must be achieved in the context of two “realities of modern life”:
“First, the press is no more exempt from the rapidly changing technological world of communication than the rest of us. That does mean that when we are seeking to identify the standards which should govern the press, we should equate them with the lowest common factor to be found in communication systems. But it does lead to the further consideration. There can be no independent press if the independent press cannot survive in the marketplace”.
In relation to the PCC he points out its “main role”, “is to provide a sort of ombudsman/ mediation service between the newspaper and an individual group which is aggrieved by an article”. Although he deliberately refrains from commenting on criticisms of the PCC he suggests that
“Even if they are fully justified, the criticisms of themselves do not automatically exclude self-regulation or a form of self-regulation in the future. In other words, it does not follow that we should jump from the present system to government regulation or regulation by a government appointed body which would give ultimate power to government. I hasten to add that I will be equally unenthusiastic about regulatory control in the hands of the judiciary”.
He then goes on to offer what he describes as “a few thoughts” on how the PCC might be strengthened. In his view, “we need to be careful” about giving “what would in effect be censorship and licensing powers” to any new body. This, he suggested “should set alarm bells ringing”.
Lord Judge makes some limited specific proposals:
consideration would have to be given to whether it would be vested with power to make express findings that the code then current had been broken, and if so to direct the terms of any apology or appropriate article in the offending newspaper, and if the power is granted, to make an order for compensation.
With the exception of the “order for compensation” this would, of course, simply be a reaffirmation of powers that the PCC already has.
Lord Judge then goes on to deal with the so-called “Desmond problem” (without mentioning Mr Desmond or his newspapers by name)
“any new PCC would require to have whatever authority is given to it over the entire newspaper industry, not on a self-selecting number of newspapers“.
He does not, however, suggest any mechanism to achieve this laudable aim. Although Mr Desmond is not named, this passage has been taken to be a criticism of Mr Desmond and Express Newspapers (see, for example, the Guardian’s report of the speech).
Finally, Lord Judge deals with the membership of the new body but suggest that it would be essential to its operation for its membership to include “a significant number of editors, and/or representatives of the newspaper industry as well as what I shall describe as “civilians“.
Lord Judge’s careful conclusion is in the following terms
“I have, as is obvious, joined the debate. If he were here, I expect that Leveson LJ would say that none of these issues is straightforward. And I would agree with him. But we all need to think, and think very hard, about how to assist the debate”.
The nature and timing of Lord Judge’s intervention in the “press regulation” debate is of particular significance – coming as it does after some intemperate criticism of Lord Justice Leveson. The speech will, no doubt, reassure those in the press who have criticised the Leveson Inquiry. His conservative and media-friendly comments send the clear message to the media that the judiciary are “on side”. It remains to be seen, however, whether the lightly reformed “PCC plus” which he favours can, in practice, provide effective regulation for the print media.