Speech by Lord Hunt to the University of East Anglia on 'Regulating the Media'
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Extract from the Speech by Lord Hunt of Wirral, Partner with DAC Beachcroft LLP Specialising in Regulatory Law and Chair of the Press Complaints Commission to the University of East Anglia on "Regulating the Media" in their Too Difficult Box Lecture on Thursday, 29 November 2012 at 6.30pm
Lord Hunt will say:
When my colleague Charles Clarke asked me to come and speak to you this evening about media regulation, he explained that it was part of a series of special guest lectures in politics called "The Too Difficult Box". I had not realised until today that he would be setting me an impossible task. Earlier today, Lord Justice Leveson delivered his judgment after a lengthy and detailed enquiry. I have had the opportunity of attending his statement at 1.30pm today and I will therefore be able to include comments about his recommendations. I would first, however, like to thank Sir Brian Leveson for having spent so much time and taken so much trouble to diagnose what has been seriously wrong in the world of newspapers and magazines and to highlight examples of unacceptable and outrageous behaviour on the part of a small minority of journalists. His terms of reference were very wide indeed but included in Module 4 recommendations for a more effective policy and regulation that supports the integrity and freedom of the press whilst encouraging the highest ethical standards. He is to be congratulated on his impressive report. I must of course spend considerable time to read through that Report in full but, before I deal with the detailed recommendations, may I first set out my view about how best I believe the newspaper and magazine industry can restore public trust and confidence.
It is a fact that most systems of professional self-regulation have undergone reform and upheaval in recent times. In 2009 I produced a Report recommending significant change to enable modern professional regulation for law firms. I set out to establish enduring principles, professional standards and appropriate regulation. These are areas I have focused on for all my adult life.
I appreciate that regulation is to some extent seen as a panacea to supposedly pervasive anxiety about professions. But a number of professions have had to demonstrate how they benefit society in the face of allegations of self-interest, marking their own homework and a lack of genuine public interest. Journalism may not be regarded as a traditional profession but it has a unique place in public life and ethics, standards and trust are as important to it as any of the accepted professions.
Many people are subject to rules but that does not make them all professionals. What marks professionals out is a commitment to certain standards of behaviour, found in ethics and best practice.
When I introduced a debate in the House of Commons on the first report by the committee for standards in Public Life ("the Nolan Committee") in 1995 to seek support for the recommendations when I was Chancellor of the Duchy of Lancaster, many of my parliamentary colleagues were deeply resentful of the implication that they could no longer be trusted to behave with integrity and now needed external scrutiny imposed upon them. Sir Edward Heath, then father of the House and of course former Prime Minister, did not spare my blushes:
"When I entered the House 45 years ago, in 1950 we recognised every Member of parliament - man or woman - as a person of integrity. That was the attitude, and it was fully accepted. We have now reached a stage where every man and woman in the House is an object of suspicion. Why has that come about? I do not consider it healthy or satisfactory, and we must not fall prey to that approach."
I'm afraid that like MPs journalists can't rely on public trust or unquestioning acceptance that the press should be free to regulate itself. Like other walks of life it is now time for professional autonomy to give way to accountability and for traditional, informal mechanisms of standard setting to become more formal.
Trust has to be earned. Journalism is a precious art and has its own powerful, specific traditions. Regulation has to be based upon principles rather than prescriptions. A good Editors' Code of Practice already exists and demonstrates to the public at large the standards to which journalists should adhere. There have been demands for a clearer definition of public interest criteria. The CPS has just had an extensive consultation on "Guidelines for Assessing the Public Interest in Cases Affecting the Media", after which new guidelines came into force on 13 September 2012. Personally, I see much merit in close alignment between the public interest definitions in the Editors' Code and those set out by the DPP.
I suggested to Keir Starmer that we should tighten the definitions. In the Editors' Code, the statement "there is a public interest defence in freedom of expression itself" and in the CPS guidelines "conduct which is capable of raising or contributing to an important matter of public debate" are perhaps too broad and vague for many people's tastes. It is perhaps arguable they might be either complemented or supplanted by a statement along the lines of ‘there is a public interest in an open and robust debate on matters of scientific, moral or historical controversy', as a means of defending the responsible exercise of freedom of speech.
As now, incorrect and/or inaccurate statements of verifiable fact should not be subject to a public interest defence under the Code and the PCC would also not expect them ever to enjoy any kind of public interest defence in the eyes of the CPS.
I also recommended including a reference to adherence to a "recognised" or "relevant" self-regulatory code in the list of public interest criteria for pre-prosecution triage. Any publisher, publication or individual journalist who has demonstrated a commitment to responsible journalism in the public interest, by signing up to a credible and independent standards-based regulatory structure, could make a strong case for having that general acceptance of a standards regime taken fully into account by the CPS whenever it considers a possible prosecution.
At first glance this might appear to open up the CPS to the possibility of potential defendants claiming, in their defence, adherence to any and every kind of spurious "code", possibly of their own making, but the words "recognised" and/or "relevant" are crucially important here and could be subject to rigorous definition.
In Section 12 of the Human Rights Act 1998, courts are required to ‘have particular regard to the importance of the Convention right to freedom of expression' and, where proceedings relate to ‘journalistic, literary or artistic material (or to conduct connected with such material)', the court must also have particular regard to ‘any relevant privacy code'. In this instance it is seemingly for the court to decide what is, or is not, "relevant". It might put an unenviable onus on the CPS if it had to arbitrate between different codes and/or regulatory regimes.
In contrast, Section 32 of the Data Protection Act 1998, under the heading ‘journalism, literature and art', creates a public interest defence which gives courts the power to take account of a publication's ‘compliance with any code of practice ...which(a)is relevant to the publication in question, and (b)is designated by the Secretary of State by order for the purposes of this subsection'.
The model established in the Republic of Ireland by the Defamation Act 2009 is similar, and may provide an alternative model, where relevance is decided not by the court but by Parliament and/or the Executive. It does not set up a regulator (the Press Council) by statute, but it does define and recognise it in statute (in Schedule 2 and section 26 of the Act, respectively), conferring certain potential advantages to members of the Press Council in defamation proceedings. The CPS could more easily apply a similar principle, if there was a generally accepted definition of a serious and credible code that is promulgated and enforced by a serious and credible regulator. So here is a comparatively simple way of enhancing the status of the proposed new press regulator.
Proper enforcement of that code combined with demonstrable independence and compliance will raise the standing of journalism. Like professionals journalists have a duty to protect the reputation of their trade as a whole. They should act appropriately at all times and not tolerate anyone bringing their industry into disrepute. Journalists will be trusted when they are generally perceived as taking their wider duties seriously.
There is a consensus of the attributes a future regulatory system should possess. If you look at the different models put forward during the fourth module of the Leveson Inquiry most would add a standards function to the existing complaints function of the PCC. Most advocate effective sanctions such as the ability to fine and for corrections and apologies to be given due prominence. Most suggested investigative powers for a new body. On 31 October the Prime Minister told the House of Commons that what matters most "is to ensure that newspapers can be fined if they get things wrong, that journalists can be properly investigated, and that there are proper prominent apologies." He added "We know what a proper regulatory system should look like."
Last year when I applied for the position of Chairman of the Press Complaints Commission, I did so on the basis that in my view the Press Complaints Commission had never been a regulator: it had never had any powers of investigation or enforcement, and it had never been able to bind participants into long-term membership. I accepted that the public and politicians had lost confidence in the existing system and I concluded that the PCC must be replaced by a new credible regulator armed with the powers that the PCC has lacked.
I started with a blank piece of paper and soon reached the conclusion that the new regulator should have two arms; one that deals with complaints and mediation and one that audits and, where necessary, enforces standards and compliance with a Code. I wanted to see greater emphasis placed on internal self-regulation with a named individual carrying personal responsibility for compliance at each publisher. Such an individual would be responsible for providing a simple but thorough going audit of compliance on an annual basis. I decided to adopt the recommendation of the Shawcross Royal Commission in 1962 that such a system should be underpinned by commercial contracts and that a state or statutory regulator was unnecessary. Telling the world that the UK had now decided to introduce a press law must in my view be avoided at all costs. I did however stress that if the new regulatory structure were to succeed, it would have to be independent and shown to be independent.
I therefore feel that there is a recognition that now is the time to set up a new robust and effective independent regulator for the press. I am heartened that most of the characteristics I suggested as I filled in my blank sheet of paper are now shared as goals by others. I hope that this common purpose can result in a speedy and meaningful new regulatory system being created. Regulation can be effective only if the structure delivering it is fit for purpose.
Sir Brian Leveson is to be congratulated on a massive piece of work. Although I do not agree with all of the conclusions, I must praise him and his dedication and commitment.
We all agree that we must regain the trust and confidence of the British people to make sure that unacceptable, outrageous and illegal behaviour can never be allowed to happen again.
So we now need to find a way forward. I suggest that we all now digest this report and seek our common ground and then unite around it. Above all it is absolutely key that the result is a new regulator with effective sanctions and teeth, and independent from the Industry and from the Government.
I have to say, however, that I am not convinced statutory regulation including supervision of press regulation by Ofcom would have prevented the horrors of the past. What will prevent them happening again is getting the press to sign up to a fresh start and a serious improvement in Governance and culture.
Almost everybody accepts the Hampton benchmarks for good regulatory practice of proportionality, accountability, consistency, transparency and targeting. A new focus on internal governance and compliance within publishers backed up by a proportionate and carefully targeted regulatory regime is the right approach. Of course where there is disagreement is on whether there is a need for the new system to be created and based in statute.
It is my strongly held belief that only effective self-regulation can preserve freedom of expression. I have not yet seen a convincing argument for statutory regulation of the press. Indeed I have genuine and profound misgivings about directly involving the state in anything that might chill freedom of expression arbitrarily and unnecessarily.
There is good reason why we have shied away from statutory regulation of the press ever since the Licensing Act was repealed in 1695.
Winston Churchill stated:
"A free press is the unsleeping guardian of every other right that free men prize; it is the most dangerous foe of tyranny ... Under dictatorship the press is bound to languish, and the loudspeaker and the film to become more important. But where free institutions are indigenous to the soil and men have the habit of liberty, the press will continue to be the Fourth Estate, the vigilant guardian of the rights of the ordinary citizen."
Karl Marx argued that:
"The free press is the ubiquitous vigilant eye of a people's soul, the embodiment of a people's faith in itself.... It is the spiritual mirror in which a people can see itself, and self-examination is the first condition of wisdom."
Against that background, and having been parachuted in to create a new regulatory structure, I do of course now want to respond positively to Lord Justice Leveson's recommendations and hit the ground running.I want to take the process forward now. I still do not know why Lord Shawcross's recommendation of a contract-based regulatory system was not accepted, and not even seriously discussed by the privacy report in 1990, nor Sir David Calcutt's report in 1993. I do, however, feel that the industry should now agree to accept my recommendations in the following six point plan:
1. I will call a meeting of all the main publishers with a view to finalising the terms of the contract and the regulation so that the commercial contracts can be signed and entered into as quickly as is practical. I recognise that because this will involve bi-lateral contracts between the new regulator and more than 30 companies, this may take a little while.
2. In the meantime, I would like to establish a shadow trust board which would then put in place independent appointment procedures for the new company, which I will suggest should be called NewCo. NewCo will have a clear lay majority and I will be approaching a number of key individuals in the next few days who will join me in setting up the procedures for NewCo. I recognise that there is a tapestry of views within the industry about "independence" and I would expect the shadow board to consult widely with the industry and with other interested parties, in particular the parliamentary DCMS Select Committee and the Secretary of State during this process. Needless to say, throughout this period we will take all necessary steps to ensure that members of the public continue to have access to a fast, free and fair complaints-handling body and - perhaps even more importantly - are able to continue to rely on the 24-hour assistance with urgent pre-publication and anti-harassment concerns that has been provided in recent years by the PCC.
3. I would like to renew my discussions with the Public Appointments Commissioner and consult Sir David Normington about such procedures and obtain his advice to help guide the shadow board.
4. There must be established a clear timetable for the implementation of the proposals, which I intend to publish shortly; which I hope will stimulate the widest possible consultation. I want to see progress as quickly as possible, and certainly by the deadline which I propose to set as 30 June 2013.
5. My aim is to ensure that the valuable expertise within the Press Complaints Commission, which will close when NewCo is established, is retained by NewCo. I will therefore begin consultations with the staff to ensure that their positions are protected.
6. I would like the industry to begin an in-depth review of the Editors' Code in the light of Lord Justice Leveson's Report, and also the issues that were raised at the Inquiry, again with a clear timetable for implementing any changes that are necessary.
I realise that I will be judged by action not words. I would very much welcome the opportunity to report at an early stage to the Prime Minister and the Coalition Government, as well as to Parliament and the DCMS Select Committee. I would also want to set up a regular reporting mechanism so that I can keep MPs and Peers fully in touch with all the actions which are to be taken.
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