Professor Robert Pinker CBE
I joined the PCC as one of its first lay Commissioners in 1991 so I write this perspective from both a personal and an academic viewpoint. Looking back on what happened in the Commission's early years, it is now clear to see that those events had a formative infl uence in shaping the PCC's subsequent development. They also have continuing relevance to the challenges that the Commission is facing today.
As newly appointed Commissioners, we were expected to fail - and the vocal advocates of statutory regulation wanted us to fail. Public confidence in the ethical integrity of the British tabloid press and the effectiveness of press self-regulation (embodied in our predecessor body, the Press Council) had sunk to an all-time low. Throughout the 1980s, the incidence of fl agrant press intrusions into people's privacy had escalated. High profile instances of irresponsible press conduct included gross libels of the popular singer Elton John and the harassment of the TV celebrity Russell Harty during the last stages of his terminal illness. It was no surprise when, in 1989, the government appointed a Home Office Committee under the chairmanship of David Calcutt QC to review the whole situation.
Editors should write the Code, the industry should publicly endorse it and the Commission should administer it
When the first Calcutt Report was published in June 1990, it recommended that the press should be given one last chance to make self-regulation work. The old Press Council should be replaced by a new Press Complaints Commission that focused exclusively on dealing with complaints. It should not involve itself in any way as "an overly campaigning body" in the cause of press freedom. The government accepted these proposals and gave the Commission two-and-a-half years in which to demonstrate its effectiveness. It was thanks largely to Lord McGregor, our first Chairman, that the governance model we adopted at the outset had the industry's full support from the start. He insisted that editors should write the Code, the industry should publicly endorse it and the Commission should administer it. The Commission would rely exclusively on moral sanctions in dealing with publications that breached the Code. McGregor was at his most successful in getting these strategic decisions right. He was less successful in steering the Commission through the various tactical crises and confrontations to which it was subjected during his chairmanship.
At the time, it seemed that McGregor's tactical fallibility was to blame for the fact that, while British self-regulation survived its earliest years, it remained effectively on probation. With the benefit of hindsight I wonder whether, in fact, this is simply the natural state of things for the PCC - always having to look over its shoulder to see what unexpected challenge is coming up behind it. If so, it may be no bad thing - after all, those on probation will try harder to prove their worth.
This was certainly how we felt in the early nineties. With Calcutt planning a review of the Commission and the Commons Heritage Committee launching its own inquiry into privacy and the press in 1992, there was a clear imperative to demonstrate that the Commission was up to the job.
Given that it had been established as a complaints body, the most important task for the PCC was to show its effectiveness in processing complaints with exemplary fairness and speed. This could only be done if it was able to foster a new culture of voluntary Code compliance on the part of the editors. Yet in pursuit of the same ends it also had to involve itself in raising standards of ethical awareness and practice throughout the industry and in the colleges where future generations of journalists were being taught. This in turn meant that after only a year or two the PCC was effectively taking on a wider standards role, which had not - quite deliberately - been envisaged when the Commission began its life. To an extent this development was inevitable and it has enabled the PCC to counter those who, because of a shallow understanding of how the system actually works, contend that it should be more proactive in raising standards. The fact is that, in a great many ways, this is precisely what the Commission does.
From the start, the Commission worked under the spotlight of public scrutiny as it dealt with a succession of high profile complaints about intrusions into the private lives of members of the Royal Family, politicians and other public figures. Its work on behalf of less well known members of the public went largely unnoticed - plus ça change…
Calcutt's second review was published in early 1993. As was widely expected, it recommended that the Commission should be replaced by a statutory tribunal invested with draconian powers. This new tribunal would draft and enforce its own Code. It would be invested with powers to restrain publications, to award compensation and costs and to impose fines on publications that breached the Code. The Heritage Committee, making its own report some time later, made similar proposals. In June 1995, however, the government announced that it would not be implementing any of these recommendations. It was not persuaded that self-regulation had failed.
Why, then, had neither of these critical reviews carried the day? Partly, I suggest, because considerable progress had been made in raising standards of service to the general public and standards of conduct across the industry. Neither Calcutt nor the Heritage Committee had given due credit for what the Commission had achieved on behalf of so-called ordinary people. The backlog of unresolved complaints left behind by the Press Council had been cleared. New complaints were being resolved more quickly than ever before. Most importantly, by 1995 there were already signs that a new culture of voluntary Code compliance on the part of editors was evolving across the industry.
But perhaps another reason why the reports of Calcutt and the Heritage Committee failed to strike a chord with government was that they were unrealistic about what the PCC was originally intended or expected to achieve. To believe that it would cure all the ills of the press was misguided; to hope that it might rid the market of tabloid sensationalism was simply undemocratic.
At the end of its first five turbulent years, the Commission had survived as a beleaguered institution in a largely hostile political environment. There were to be more crises in the years ahead. From 1995 onwards, however, it could look forward to a future that was no longer overshadowed by the imminent prospect of its own demise - even if it was destined to remain under the more or less continuous surveillance of the House of Commons Culture, Media and Sport Committee, which is entirely as it should be.
Indeed, there are no grounds for complacency regarding the future of press self-regulation in the United Kingdom. As Sir Christopher Meyer predicted in 2006, "One really contentious, high profile case" will be "all it takes to ignite new fires of controversy and breathe new life into those who… would like to replace us with a statutory body." The current inquiries into the prevalence of unlawful interceptions of voicemail messages are manifestly such a high profile case.
I have seen at first hand how much this right means to people who live in countries where it can never be taken for granted
Whatever the eventual findings of these inquiries prove to be, they will undoubtedly trigger new demands in some quarters for a statutory tribunal or a revamped Commission invested with draconian powers of enforcement. This is why it is so important to keep in mind why successive governments have rejected similar demands in the past.
I have already noted the importance of understanding what exactly an organisation like the PCC is designed - and able - to achieve. This is particularly so when we consider it in the wider context of media accountability, for it does not stand alone in this endeavour.
Ultimately, the law protects freedom of expression, privacy and the public interest best when it serves as a last rather than a first resort for people with grievances against the press. Conversely, self-regulatory Councils serve these purposes best as agencies of first resort.
The Commission is able to provide an alternative but complementary way of resolving grievances that is - unlike the courts - easily accessible to everyone, swift in reaching decisions and provided at no cost whatever to complainants. The Commission is able to deliver this kind of service because it is not a statutory body invested with draconian legal powers of enforcement. The introduction of fines and prior restraint orders would have serious consequences for the quality and range of services that the Commission currently provides. Editors would become less willing to volunteer remedies to complaints and the worst features of a compensation culture would be imported into the system with all the delays that would inevitably follow.
Over the past 20 years, the Commission - in cooperation with the industry - has developed a highly effective conciliation service
Over the past 20 years, the Commission - in cooperation with the industry - has developed a highly effective conciliation service of first resort. Investing the Commission, or some other regulatory body, with legal powers of enforcement would reconvert a culture of voluntary Code compliance that has benefited thousands of complainants into a culture of confrontation that benefits no one - except lawyers.
People seeking redress for grievances against the press would no longer have a choice between two significantly different but complementary systems of regulation. They would be left with two almost identical agencies of last resort. In addition, investing any kind of regulatory Council with powers to impose fines and prior restraint orders would have a deeply chilling effect on the right to freedom of expression and the conduct of responsible investigative journalism. The courts, as agencies of last resort, are less likely to have this effect, because they deal only with exceptional cases. Regulatory Councils deal with complaints on a day-to-day basis and, once invested with such powers, they would swiftly be exploited by people intent, for one reason or another, on censoring the press at no cost whatever to themselves.
ireach three key conclusions after reflecting on the Commission's early years. First, since Councils like the Commission are not, and cannot be, legal authorities, voluntary compliance on the part of publishers, editors and journalists becomes, of necessity, the sine qua non of self-regulation. Secondly, the Editors' Code Committee were absolutely right in asserting that there is "a public interest in freedom of expression itself." In my 20 years of travelling abroad on behalf of the Commission, I have seen at first hand how much this right means to people who live in countries where it can never be taken for granted. And finally, debates about the merits of both the media and its regulation will never come to an end.
Professor Robert Pinker CBE
For a more detailed review of developments in UK press self-regulation from 1991 to 2009 see Robert Deacon, Nigel Lipton and Robert Pinker, Privacy and Personality Rights, Jordans, Bristol, 2010, pp1-148.