Spinning in the Last Chance Saloon: Why the “Son of PCC” regulator fails all the tests, Part 2 – Evan Harris

12 07 2013

Leveson PCCIn Part One we looked at the rhetoric of the press release issued by newspaper proprietors. Here is an analysis of their claims to have implemented Leveson in their scheme. Again those people who seek to oversee journalistic ethics are guilty of distortion, misrepresentation and worse.

The press release states

The Independent Press Standards Organisation will be a complete break with the past, and will deliver all the key Leveson recommendations:

This is untrue. It is PCC Mark 2 – as has been set out in these detailed analyses of the criteria it needs to fulfil. It is essentially the same as the Hunt-Black Plan which the press offered to Leveson and both he and the Prime Minister rejected as inadequate.

  • A majority of independent members at every level, and no industry veto on appointments (Articles of Association 22,26,27).

This is not true:

  1. The Code Committee will not – despite Leveson’s recommendation (paragraph 60 of his report’s executive summary) have a majority of independent members,
  2. Leveson did not merely recommend majority of lay (“independent”) members – he also laid out detailed criteria for independent appointment of the board relating to true independence from the industry. It was not enough, he made clear, just to have “lay members”.
  3. Leveson demanded independence from politicians. He barred not just MPs, but party political peers (who previously ran the PCC and PressBoF), MEPs, and elected members of the devolved parliaments/assemblies from the Board of the Regulator. The PressBoF scheme permits them (see Schedule 3, para 5 of the PressBoF Royal Charter)
  4. PressBoF say that requirement that the decision of the appointments committee on nominations to the board, be unanimous (such that a single “press representative” had a veto) is now, instead, that it be by consensus. According to the Times on 9 July 2013, this means that an appointment can be blocked – by opposition from both the press industry representatives on the appointments committee. That is still an industry veto.

The press release says that IPSO will have

This is misleading because

  1. The fines are capped at 1% of turnover of the publication which is thus almost always less than £1m.
  2. Fines only apply when the Code is found to have been breached after an investigation. If the writing of the Code is retained exclusively with the editors it can be watered down.
  3. Fines only apply when the Code is found to have been breached after an investigation. The lack of independence of the board in respect of finance and appointment will lead to a repeat of the PCC unwillingness to properly investigate, find breaches or take tough measures.
  4. Fines only apply when the Code is found to have been breached after an investigation. Unless investigations are sensible and credible this will never happen. See here for what the investigations system proposed by pressBoF is. (link)
  5. Unless this is a Leveson-compliant regulator (when cost penalties apply) there are few deterrents to those who are found to have breached the code from walking out of the regulator – the Desmond problem.

The press release says that IPSO will deliver:

  • Upfront corrections and adjudications – whether editors like it or not. (Regulations 18-22).

This is not true.

A regulator need not (under the pressBoF Royal Charter) and, under the IPSO model, does not have the power to direct the prominence of apologies or corrections. In fact there is no mention of apologies whatsoever. The complaints system is even more convoluted and drawn out than the PCC. This can be seen from Regulations 13-22 – see below at foot of this paper.

The press release says that IPSO will deliver:

  • A standards and compliance arm with investigative powers to call editors to account. (Regulations 45-68).

This is a weaker version than the Leveson proposal. There is no guarantee investigations will be funded or effective.  They are not required by the PressBof Royal Charter, to be ‘simple and credible’, as Leveson insisted they must be. There is no requirement for a ring-fenced investigations fund. The recognition panel cannot use its judgment to assess the effectiveness of investigations. (Schedule 3, paras 18 & deletion of 19A from the 18th March Royal Charter)

The investigations process appears, on first read through, to be the same as the one submitted by Lord Black to Leveson and rejected by the judge. Nor is there any reference in the two documents (regulations and Articles) to a ring-fenced enforcement fund.

Fines appear to have to follow an investigation (see Financial Sanctions Guidance 2.1: “Subject  to  paragraph  2.2  below,  the  Trust  Board  shall  have  the  power  to  fine  a Regulated  Entity  up  to  1%  of  its  UK  annual  turnover relating  to  the  publication(s) (both print and electronic) which is/are, following a Standards Investigation, found to have committed a Systemic Failure (as defined in the Regulations”).

But if investigations aren’t funded, and they are neither simple nor credible, then it is unlikely anyone will ever be fined. There are 7 barriers to a simple and credible investigations system – set out here.

The press release says that IPSO will deliver:

  • An Arbitration Service to offer a speedy and inexpensive alternative to the libel courts, subject to the successful conclusion of a pilot scheme (Scheme Membership Agreement 5.4).

There is no certainty of any such scheme which was a requirement of Leveson, and it is not proposed to be a free service for founded complaints, regardless of whether complainants can afford a fee to make a claim.

The press release says that IPSO will deliver:

If this ever happens, the main problem is that there is no conscience clause in journalists’ contracts which Leveson urged the regulator to consider requiring and which the NUJ have campaigned for. But PressBoF have insisted it is not included.

The Press Release also refers to IPSO having

  • A warning service to alert the press, and other media such as broadcasters, when members of the public make it clear that they do not wish to be the subject of media attention.

This already exists in the PCC. It is not very effective.

But is that it? There were over 30 requirements in the Leveson Report. It is very telling that the press have not issued a score-card on how many they have met, or agreed to an independent assessment of it.

The following additional breaches of Leveson are likely to arise in the IPSO scheme (references are to requirements in the 18 March Royal Charter and how it is changed by the PressBoF version)

  1. Extra barriers for bringing complaints

• It will be very difficult indeed for representative groups to complain (Schedule 3, para11(b)). A representative group complaint has to be a ‘significant’ code breach, there has to be ‘substantial’ public interest, and it has to qualify for ‘formal’ consideration.

• This is a higher hurdle even than PCC

• It is not needed because bars on “opinion-based”, “lobbying” or “unjustified” complaints are already excluded in both Charters (Schedule 3 para 11)

2.  Lack of independence of the Chair of the “independent self-regulator”

The Chair of the “independent self-regulator” could even – it seems – even be

• a serving editor as per Schedule 3 para 5(d),

• a serving MP (or any politician) as per Schedule 3 para 5(e) or

• someone who cannot in the view of the panel act fairly and impartially (Schedule 3 para 5(f)).

This is due to the

deletion of Schedule 3, para 5 (f) entirely – a requirement that Chair and board members are able to act fairly and impartially,

deletion of Schedule 3 para 5 (d) and (e) from the criteria relating to the Chair in para 2,

• together with the caveat at the end of para 1 that industry involvement in making appointments to the board in line with para 5 is not a breach of para 1.

• The lack of clarity on whether para 4 safeguards applies to the appointment of the Chair

• And the only “check” on such an obvious breach of the Leveson requirements would be the Recognition Panel. However if the self-regulator is put to the Recognition Panel as soon as it is created, the Panel would be … PressBoF itself

3.  Power to exclude publishers by lack of differential subscription rules

The self-regulator will be able to exclude some publishers by virtue of not being required to provide differential membership terms based on different characteristics of the publishers (deletion of words in Schedule 3, para 23)

In summary then any claim that the PressBof “Son of PCC” actually implements the Leveson Report is an insult to the intelligence of the public.

Evan Harris is Associate Director of Hacked Off.


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