This is the fourth part of a response to the government consultation. More will follow. We will welcome your comments, and if you wish to register your views with the government, click here.
The consultation document rightly makes reference to the freedom of the press and its importance to democracy. As explained above, these were matters of which the Leveson Inquiry, the cross-party negotiators and Parliament itself were fully apprised in 2011-13. They consequently took great care to ensure that membership of a recognised regulator implies no loss of freedom of expression for a news publisher. It follows that no news publisher can credibly claim it is unable to join a recognised regulator on the grounds that its freedom to publish will be curtailed by state influence. It is worth developing this point, with evidence.
The Leveson Inquiry was explicitly required in clause 2 of its terms of reference:
‘To make recommendations: (a) for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government . . .’
No one has suggested that the Report or its recommendations breached those terms. The cross-party agreement and Parliament itself were specifically concerned in 2012-13 not to give government or politicians any influence over press regulation and by that route over press content. Proof of their determination can be found, for example, in:
- The decision to create a new recognition body (the PRP) rather than give the responsibility to Ofcom, which was deemed insufficiently independent from government, notably on the grounds that the Secretary of State for Culture, Media and Sport appoints the Chairman and directors of OfCom.
- The decision to establish the PRP under Royal Charter rather than by statute, a choice promoted by the then Conservative Prime Minister, in response to requests from the press, on the (albeit questionable) grounds that a dedicated Act of Parliament would ‘cross a Rubicon’ in the relationship between the press and the state.
The same determination can be seen in the terms of the Royal Charter itself, notably but not exclusively in:
- The explicit exclusion of working politicians from the boards and staffs of the PRP and of a recognised self-regulator, and from the appointments committees to both (Schedule 1, par 3.3.c, Schedule 3, par 5, e). No such exclusion applies in IPSO.
- The explicit exclusion of politicians even from the process of appointing the appointments panel of the PRP, in that respect making the PRP appointed under a more independent process than the judges.
- The arrangements for Charter amendment or dissolution, which require the unanimous agreement of the PRP plus two-thirds majorities in both Houses.
- The requirement that a regulatory code of practice ‘must take into account the importance of freedom of speech’ and also ‘the need for journalists to protect confidential sources of information’ (Schedule 3, par 8).
- Recognition criterion 17, which states: ‘The Board [of a recognised regulator] should not have the power to prevent publication of any material, by anyone, at any time . . .’
As Sir Brian Leveson observed upon the publication of his report, no one could call these arrangements “state” or “statutory” regulation. The Conservative Prime Minister of the time moved the motion in the Commons welcoming the cross-party agreement and left no doubt of his confidence that essential press freedoms were secure under its terms. He said:
‘Let me be clear. This is not by any stretch statutory regulation of the press, and nor is it statutory recognition of either the self-regulatory body or the recognition body.’ (Col 364).
As recently as October 2015 the then Secretary of State, John Whittingdale, also a Conservative, stated:
‘Let me be very clear: I would like to see the press bring themselves within the Royal Charter’s scheme of recognition.’
Since in the same speech Mr Whittingdale spoke of ‘the fundamental truth that a free press is one of the pillars of a free society’ we may infer that he too was fully satisfied that the Royal Charter scheme he was commending gave complete protection to essential press liberties. In the consultation document itself the PRP is explicitly acknowledged to be a ‘new independent body’ (para 5) and ‘wholly independent of the government’ (Box 2).
Newspaper companies have asserted that they reject ‘on principle’ any regulator that has a connection with the state, and in their recent campaigning they have described recognised regulation as ‘state-backed’. , ‘state-recognised’ or ‘state-approved’.
For purposes of public policy and the protection of the interests of the public the test of whether news publishers should be expected to participate in recognised regulation cannot be mere prejudice or opinion: news publishers must justify their choice on the basis of evidence. The evidence above shows that there is no substance to the claim that freedom of expression is compromised in recognised regulation. Here we present evidence demonstrating that the notion that a ‘principle’ is at stake is not sustainable.
The state, by virtue of a public inquiry, cross-party agreement and the enactment of a statute, was indisputably involved in the creation of the framework for regulatory reform in 2011-13. This was not, however, a gratuitous intervention by unscrupulous politicians seeking to gag public interest journalism. On the contrary, it was a very reluctant engagement that was prompted by the long-term failure of the press industry to regulate itself. This failure had permitted the collapse of standards manifested in phone hacking, the treatment of the McCann family and Christopher Jefferies, the bribing of public officials, wholesale data theft and much other wrongdoing and cruelty besides. Such damage to ordinary citizens could not be ignored by any responsible government or Parliament. The state was thus obliged to involve itself because the public had to be protected, and as explained above it did everything possible to ensure that the involvement was limited and would not have to be repeated. Newspaper companies that bear the responsibility, through their own failures and wrongdoing, for making state action unavoidable cannot with credibility suggest that they reject state action ‘on principle’.
Nor can a case be made that participation in recognised regulation would entail departing from international norms – the contrary would be closer to the truth. A number of European countries have regulatory regimes that, in contrast to Britain, can fairly be described as statutory. Several, including Belgium and Germany, have statutory rights of reply. Finland has a law on the ‘exercise of freedom of expression in the mass media’ which makes ‘responsible editors’ liable for content, and also gives a right of reply. Denmark has a statutory press council. In none of these countries have such arrangements been found to be in contravention of the freedom of expression requirements of the European Convention on Human Rights, and every one of these countries ranks above the United Kingdom in the World Press Freedom Index.
No less relevant to the matter of ‘principle’ is the Press Council of Ireland, which is a “recognised regulator” where the recognition body is not independent like the PRP but is formally recognised by the Minister for Justice under the terms of the Irish Defamation Act 2009. This procedure is clearly less scrupulously independent of political involvement than the Charter system and yet several UK news publishers, including the publishers of the Sun, Express, Mirror and Mail, are full participating members. No principle stood in their way.
It is impossible to avoid the conclusion that any claim by parts of the press industry that they cannot participate in recognised regulation as a matter of principle is neither credible nor sustainable. No credible principle stands in their way, and an abundance of genuine principles, including fair access to justice, the right of citizens not to suffer from unethical journalism and respect for the will of Parliament and the country, should guide them towards full and early participation.
The ‘slippery slope’
Newspaper companies have warned against a ‘slippery slope’ – the idea that the introduction of the Royal Charter gives politicians the opportunity to tinker progressively with its mechanisms in ways that could ultimately introduce state influence. This is incorrect: the terms of the Charter can only be amended on the very demanding terms set out above, which means that in practice any government seeking to tinker would require the agreement of the entire PRP and cross-party support in both Houses. Alternatively it would have to repeal section 96 of the Enterprise and Regulatory Reform Act 2013 – an action that is equivalent to passing new legislation, and new legislation is an option open to any government at any time.
Even then, amendment to the Charter would not be an effective to introduce state influence because any regulator recognised under the Charter could withdraw from the system.
Governments have long had at their disposal far more administratively convenient ways of asserting power over the press (for example by ending the zero-rating of newspapers for VAT, or amending libel laws). With this in mind it can be stated, first, that if there is a slippery slope whereby politicians can take steps to restrict press freedom we have been on it ever since we had a sovereign Parliament, and second, that the Royal Charter, with its demanding amendment arrangements, stands out as a relatively solid feature in that landscape – in fact, as a bulwark against state interference.
Finally, despite the alarms raised by the corporate press, there is no evidence in modern times of any desire by any government to assert control of press regulation for the purpose of censorship. Sir Brian Leveson made the following comment in his Report:
‘If the history of the past 50 years on press regulation tells us anything it tells us that Parliament wants nothing less than to pass legislation to regulate the press. There may have been the occasional siren voice expressing a contrary view but, in truth, Parliament has managed to avoid many opportunities to do so, despite real (and repeated) public concern about press behaviour and the consequences of failing to deal with it’ (Part K, Chap 7, 6.38).
Given that the Charter system of recognition has been established with Parliament’s approval with a view to improving the means of upholding press standards through effective and rigorously independent self-regulation after decades of damaging regulatory failure, and given that the principal beneficiaries of this will be the public, who stand to enjoy enhanced protection from press abuses, it follows that news publishers require compelling and well-founded reasons for refusing to play their part. In their search for such reasons, corporate news publishers have claimed that participation in recognised regulation would curtail their freedom of expression. As the above shows, these claims have no foundation. The structures are as airtight against political interference as our constitution permits (and are more so than IPSO’s); regimes involving more state or legislative engagement exist in numerous countries that rank above the UK in the World Press Freedom Index; no sensible objection on principle can be made; and fears of a ‘slippery slope’ do not correspond to reality.
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