If the amendments were passed then they would involve partial statutory implementation of the Leveson Report – going directly against the Prime Minister’s expressed preference for “non-statutory” implementation, perhaps via a “Royal Charter”. There is a strong Commons majority in favour of statutory implementation of Leveson – Labour, Lib Dems, a substantial group of Conservative backbenchers and most of the smaller parties. This means that the Government would find it difficult to reverse any Lords Amendments without making clear concessions on an alternative form of statutory implementation. The result would be that if the Government’s Defamation Bill were to be passed into law, the Prime Minister would have to accept some form of statutory implementation of the Leveson recommendations.
The amendments would insert the following new provisions into the Defamation Bill:
- A provision to established a “Defamation Recognition Commission” – this would be set up by the Lord Chief Justice and its role would be to “recognise” an Independent Regulatory Board (that is, a voluntary self-regulatory body) providing an “arbitration service” for defamation and related civil claims (a “Specialist Arbitration Service”).
- Provisions to the effect that a court should take into account when awarding costs or damages and exemplary damages whether the parties have refused to use the arbitration service.
- A schedule providing for a “Specialist Arbitration Service” which is free for complainants to use.
It appears that these amendments are not designed to provide a full implementation of Lord Justice Leveson’s recommendations in relation to press regulation. They do not implement his recommendations into relation to exemplary damages (and their extension to privacy claims). Even more importantly, the “recognition criteria” set out in the Schedule on the Recognition Commission do not reflect the carefully thought out and balanced detail of Lord Justice Leveson’s recommendations 1 to 26 (see the Executive Summary, pp.32-35).
The amendment has the following criteria – not even as matters which are mandatory but only things which the Recognition Commission “must consider”:
“whether an Independent Regulatory board has
(a) sufficient guarantees of independence, including suitable independent, fair and transparent procedures for appointments and funding,
(b) suitable functions, powers, personnel and resources to ensure that it can fulfil its principal objects effectively,
(c) an appropriate standards code,
(d) an arbitration service able to deal with defamation and related civil claims, effective processes for upholding standards,
(e) an efficient procedure for handling complaints, and
(f) is open to all news publishers”.
With the exception of the “arbitration service” these are all matters which the discredited “Hunt/Black” plan for “PCC Mark 2” claimed to have. This plan was rejected by Lord Justice Leveson who went to great lengths to set out careful and detailed mandatory requirements for an independent self-regulatory body.
The importance of these criteria were recognised in the draft bills produced by the Labour Party [pdf] and by Hacked Off [pdf]. In the Government’s draft bill[pdf] the Recognition Commission must be satisfied that the proposed regulator fulfills the “approval requirements” which mean:
(a) the requirements set out in recommendations 1 to 24 in the Summary of Recommendations of the Leveson Report, and
(b) the other requirements for recognition set out in Section 4 of Chapter 7 of Part K of that Report.
The detailed “Leveson requirements” would have to be included any any final version of the Defamation Bill (as well as the exemplary damages and other requirements) or in any legislation which is eventually used (if the Defamation Bill is not the right vehicle).
Nevertheless, the Defamation Bill amendments which are being proposed show that there is a possible route to Leveson implementation – even without a Leveson specific Government bill (or a private members bill). The debate on these amendments on Tuesday will be of great interest.
Mark Thomson is a partner in the media law firm Atkins Thomson and an editor of Inforrm