Lord Justice Leveson recommended the establishment of an independent and voluntary self-regulator for the press. And given, the long history of inadequate self regulation, he recommended that the law must “provide a mechanism to recognise and certify” the new self-regulator. His view, after careful consideration of the alternatives, was the Ofcom should be the recognition body.
These are recommendations 27 and 31 in his Report. They provide a simple and straightforward way of ensuring that the regulator set up by the press is effective and independent. It not, therefore, surprising that the press have rejected them. Effective independent regulation is the last thing most of them want.
What is more surprising is that politicians – even those who are sympathetic to Leveson’s general approach – have swallowed the press objections to these recommendations. The suggestion that Ofcom is somehow tainted by Ministerial involvement in the appointment of its chair does not bear serious examination. This is the body which we trust to regulate broadcasters. It is operationally independent of government and has unrivalled expertise in the field of media regulation. It is not suggested that it uses its very extensive powers over, say, ITN or Sky News to favour one political party or one point of view.
But because of endless self-interested media propaganda we have been conditioned into believing that the freedom of the printed press is somehow more precious and important than that of broadcasters. Lord Justice Leveson went out of his way to accommodate this view. His recommendations ensure that Ofcom’s role is secondary and technical and that it is not involved, in any way with the actual regulation of the press. As he says in Recommendation 28
“The responsibility for recognition and certification of a regulator shall rest with a recognition body. In its capacity as the recognition body, it will not be involved in regulation of any subscriber”.
But the mere fact that Ofcom has, in a different capacity, a direct regulatory role over broadcasters has been sufficient to frighten the inordinately timid political horses. As a result, a series of bizarre and constitutionally odd schemes have been mooted.
It is not necessary to devote much time to the absurd idea that a “corporation constituted by Royal Charter” would be appropriate. Royal Charters are granted and managed under the Royal Prerogative – that is, by the government. If the idea is to keep the government out of press regulation then Royal Charter should be the last solution proposed. Instead of legislation enacted by democratically elected politicians it is, apparently, preferable to deploy a medieval hangover of absolute royal power. This idea should be put out of its misery at the earliest possible moment.
Few supporters of Leveson have, as yet, been seduced by the idea of a “Royal Charter”. But some of them have proposed an equally bizarre form of recognition body – based on the introduction of the judiciary directly into the recognition process. Instead of adjudicating on disputes about whether a “recogniser” got it right – their proper constitutional role – judges are, apparently going to take on the administrative recognition role themselves. This proposal was considered – and rejected – by Lord Justice Leveson himself (see Report, p.1775 fn 56).
So, the recognition body with media regulation expertise – Ofcom – is rejected because its chairman is appointed by a minister and it is set up by statute. In its place we have judges – with no media regulation expertise – who are appointed by a body set up by statute (the Judicial Appointments Commission) and who are subject to a statutory scheme of regulation.
There are two versions of the “judicial recognition” proposal. The first comes from the Labour Party. Under clause 3 of its draft “Leveson Bill” the “Recognition Panel” is “the High Court” – with its powers being exercised by Lord Chief Justice sitting with other judges and assessors. What is required is a hearing in accordance with civil procedure rules made for the purpose (see clause 3(1)(b)). At such a hearing different parties (represented by lawyers) would argue for or against the proposed scheme and the High Court would then give a judgment. The judgment could, presumably, be appealed. If the Court did not support the new scheme in every detail then a revised scheme would have to be prepared. Then there would be a new hearing. And so on.
Hard on the heels of this measure comes Lord Lester. Not content with the Lord Chief Justice, he wants to go one better – the President of the Supreme Court. Under the, as yet unpublished, Lester Bill, the President will have the responsibility of “certifying” that the press council meets the relevant requirements. According to Lord Lester:
“It is better to rely upon the highest judicial authority in the land than on Ofcom or ministers devising a royal charter in the name of the Queen”.
Well, actually, no. The expertise of the judges lies in determining disputes brought before them in accordance with court procedures. They have no special understanding of media regulation (unless, like Lord Justice Leveson, they have heard evidence on the subject over many months). And they do not normally decide things without hearings and arguments on both sides.
We have another, modest, suggestion. If a “judicial recogniser” is appropriate then why not pick the judge with the greatest expertise in this area: Sir Brian Leveson? He was very clear on the inadequacies of the Hunt/Black proposal and would doubtless have similar views on the “Son of Hunt/Black” conceived at the Delaunay restaurant and presently being worked up by those reliable and independent figures, the national newspaper editors.
Of course, for this very reason Sir Brian Leveson would be even less acceptable to the press than Ofcom. What they want is a recogniser that knows nothing of the practicalities and can sign off on a scheme which in form complies with the “Leveson principles” but, is in substance as feeble and ineffective as the PCC.
Let us hope that Parliamentarians see through this nonesense and do the only sensible thing – implement the Leveson recommendations in full.