Leveson and Legality: implementation of the Report would not be Illegal – Hugh Tomlinson QC [Updated]

2 12 2012

Shami ChakrabartiAccording to the “Mail on Sunday” the Leveson assessor and Liberty Director Shami Chakrabarti has “delivered the bombshell verdict that his demand for compulsory press regulation would be illegal”.  The BBC has, in turn, reported the story under the headline “Leveson report proposals ‘would be illegal‘”.  This is distortion of Ms Chakrabarti’s views which, as is clear from the report, relate to matters which do not form part of its recommendations.  In any event, Ms Chakrabarti’s analysis is wrong in law.  The suggestions made in the report to which she refers are lawful and in no way inconsistent with the Human Rights Act 1998.

It is first necessary to look at what Ms Chakrabarti actually said.  The “Mail on Sunday” quotes her as saying

“In a democracy, regulation of the press and imposing standards on it must be voluntary.  A compulsory statute to regulate media ethics in the way the report suggests would violate the Act, and I cannot support it. It would mean the press was being coerced in being held to higher standards than anyone else, and this would be unlawful”.

This does not relate to the recommendations concerning “recognition” of an independent voluntary regulator by Ofcom or some other system established by statute.  Ms Chakrabarti’s views on this are set out in the Report in a footnote to the recommendation that Ofcom be the recognition body:

“Shami Chakrabarti has advised that she prefers this role to be fulfilled by the court but I do not see how the court, of its own motion, could adopt an adjudicative role in relation to certification or subsequent review. Somebody would have to be prepared to challenge either the extent to which the new body fulfilled the requirements of the legislation or the proposition that it should continue to do so. If that was Ofcom, and Ofcom raised no objection, there would be nothing upon which the court could adjudicate. Thus, the decision would become whether Ofcom was satisfied. A very similar role would be available to the court if there was an appeal from an adverse decision of Ofcom (which could allow a merits challenge rather than be limited to the more restrictive justification for intervention that is provided by judicial review” (fn 56, p.1775)

In other words, Ms Chakrabarti does not suggest that the implementation of any Leveson recommendations would be illegal.  Although she disagrees with the proposal for recognition by Ofcom, she does not argue that this would be in any way incompatible with the Human Rights Act 1998.  And she is obviously right not to make such a claim.  Any argument that the implementation of the modest proposals in the Leveson Report would be illegal is plain wrong.

[Update]  Liberty has now issued a statement confirming that Ms Chakrabarti did not say that the implementation of the Leveson report would be illegal and did not drop any “bombshell” as suggested by the “Mail on Sunday”.  It confirms that the disagreement with the Report’s recommendations is confined to the role of the “recognition body”

“On the issue of who decides whether a body does or does not comply with the Leveson characteristics (which could be set out in a statute), both Leveson LJ and Liberty agree that this will ultimately be a judgment for the courts. However whilst the Judge believes that a primary expert decision should be made by a body such as OfCom, subject to Judicial Review, Liberty would rather leave the question of whether the tests are met to the courts and not involve a quango which is ultimately appointed by politicians. This is a detail that the Judge clearly and graciously footnoted in his Report in the context of Liberty’s Director’s role as one of his assessors”.

It should be noted that a requirement for judicial approval of a voluntary regulatory would also require statutory provision: in other words, Liberty is not disagreeing about the need for statute, simply about its detailed provisions.

So what was Ms Chakrabarti talking about?  Her comments in the “Mail on Sunday” in fact relate to a different point which do not form part of the Leveson recommendations at all. They relate to the discussion in Part K, Chapter 8 of the Report – entitled “The Alternatives” – in which Lord Justice Leveson considers what would happen if the press

“fails to deliver the independent regulation that is required and that the public have a right to demand. If, however, the industry were unwilling, or unable, to come forward with a credible proposal for independent regulation then it would have demonstrated sufficient disregard for the public interest to have established that self-organised regulation simply is not an effective option”.

In this Chapter – which deliberately includes no recommendations – he sets out his views on what a “backstop regulator” would look like.  Ms Chakrabarti’s views are made clear in the Report which, after recording that Elinor Goodman and George Jones advised that it was not necessary for him to make a recommendation about what should be done if the press did not accept the preferred option (advice which he appears to have accepted), states

“I also record that Shami Chakrabarti advised against the contemplation of any element of compulsory backstop standards regulation of the press in the event of the inability or unwillingness of the press to implement the recommendations in this Chapter; she would prefer in that event to see a strengthening of the financial assistance available to those who feel their rights have been abused by the press in order to help them defend those rights in court” Fn44, p.1758.

So, Ms Chakrabarti’s point appears to be a narrow one: that if the press failed to accept the report’s preferred option of an independent voluntary self regulatory body and compulsory regulation was imposed by statute this would be incompatible with the Human Rights Act 1998.  The basis for this opinion is not explained and I believe that it is also wrong.

[Update]  This analysis is confirmed by the Liberty statement in which it is said that

Leveson does not recommend compulsory statutory regulation of the press and Liberty believes that he is right not to do so. However, he moots the very difficult question of what would happen if all or significant portions of the press failed to rise to the challenge of his Report and create and support a sufficiently robust and independent body. He reflects on (without recommending) the possibility that parliament and the public might feel the need to impose some level of compulsory statutory regulation on outlets that refused to play their part. It is this alternative that Liberty cannot support and which would in our view, breach Article 10 of the ECHR and Human Rights Act. As this last-ditch alternative is not even a recommendation of the Report,

But is this analysis correct?  In my view it is not.  The Report quotes my evidence to the Inquiry that regulation of the print media could, in some circumstances be compatible with the ECHR, particularly if limited, for example, to a set of mandatory standards for publications with a large circulation, but that general regulation which might amount to a licensing regime would not (pp.1655-1656).  I have analysed the legal arguments in more detail in a previous post on Inforrm.  My conclusion was

“although the Council of Europe has strongly promoted self-regulation it is likely that compulsory regulation of the print media will not, of itself, be incompatible with the requirements of Article 10.  Compatibility will depend on the precise form of compulsory regulation which is proposed and the justifications for it”.

Article 10(2) of the ECHR reminds us that the exercise of freedom of expression

“since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or rights of others”

There is no case law of the Court of Human Rights which suggests that this prevents the statutory regulation of press standards.  After all, broadcasters (who, like the press, exercise the right to freedom of expression) are subject to statutory regulation across Europe.  None of the press regulation regimes in other Council of Europe countries have been declared incompatible with Article 10 on the basis that “press standards must be voluntary”.  This is not a requirement of the Convention.

Ms Chakrabarti is quoted as saying, of Hacked Off – of which I am the Chair

‘I understand that people who have been wronged want action. But they should be interested in outcomes, rather than particular processes.  The outcome they should be seeking is a free and vibrant press with access to justice for the public when things go wrong. We can achieve this without legislation, which may have serious unintended consequences. Unfortunately, there has been a great deal of ill-informed debate, with people bandying about terms such as “statutory underpinning” with little grasp of what this would mean.

Hacked Off is certainly interested in outcomes rather than particular processes and we are interested in a free and vibrant press with access to justice where things go wrong. We part company, however, on the need for legislation.  For over sixty years the press has promised to “put its house in order” but, as the Leveson Report makes clear, has only ever done anything when threatened with statutory intervention.

The suggestion that legislation “may have serious unintended consequences” does not bear serious examination.  This is the idea that there is a “slippery slope” leading to  state control of the press.  As I said in a previous post on this blog:

“The problem is that there is no evidence to support it.  No one ever gives concrete examples from history to show how regulation has led inexorably to control.  And history is entirely against it.  Judges, lawyers and of course broadcaster are subject to statutory regulation but there is no “slippery slope” showing increasing state control over judicial decisions or the content of ITN news broadcasts”.

Ms Chakrabarti is right.  There has been a great deal of ill-informed debate – it is be found in the pages of the British press who have, over the last few months, debased even their own low standards of analysis and objectivity and have presented the public with a wholly distorted and one-sided account of the debate.  Statutory underpinning does not equal state control of the press.  Like any other group in our society, the press must be held to proper standards in the public interest.  The Leveson recommendations are a minimum programme for seeking to achieve this.

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14 responses

2 12 2012
Leveson: We could be walking into problems with Article 10, European Convention on Human Rights. « Charon QC

[...] Leveson and Legality: implementation of the Report would not be Illegal – Hugh Tomlinson QC [...]

2 12 2012
Report #14: The Leveson Report « Charon QC's UK Law Tour

[...] Leveson and Legality: implementation of the Report would not be Illegal – Hugh Tomlinson QC [...]

2 12 2012
davidalock

This is a measured and accurate response to a misreporting of Ms Chakrabarti’s views.

Article 10 of the ECHR applies just as much to the broadcast media as it does to the print media, and if Ms Chakrabarti is right on her broader thesis (which may not in fact represent her views) then there would be a strong argument that all of the existing system of regulation of the broadcast media (which is underpinned by statute) must be unlawful. That is plainly not correct. It must therefore follow that the argument that any system to regulate the press other than a voluntary one that the press devise (and thus control) breaches article 10 must be wrong. The fact that an over rigid statutory system of press regulation may breach article 10 (which is plainly correct) does not mean that any statutory element in a more measured system would be unlawful.

There is also an unattractive opportunistic element to this criticism. Many of those who oppose an effective system of press regulation are also deeply opposed to the ECHR being part of UK domestic law. It is thus rather distasteful to see these same newspapers claiming that their “human rights” would be infringed if they were subject to any form of regulation with which they did not agree.

David Lock QC

2 12 2012
Graeme Cowie

In specific response to David Lock QC and the similar arguments made by the author:

Broadcast media regulation is specifically provided for in Art 10(1) ECHR in the second sentence, which provides “this article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

Clearly that list isn’t itself exhaustive, but it is striking that the need was felt to emphasise the regulation of those forms of media would not be prevented, but not to stipulate the print media. This is hardly an inadvertent omission, or one which necessarily would not have been covered by the original Convention as framed (e.g. with the internet or other virtual media). There is an implicit recognition that broadcast media is fundamentally different from other forms of expression. One could point to its instantaneous quality, its emphasis on imparting ideas to a mass audience by the medium of sound rather than the written word, its constant nature, rather than being a final, coherent, four-cornered publication as evidence to that effect.

There is no justification in saying “but we regulate television and radio” to then jump, at the legal level, to “therefore it is okay for the state to regulate the print media”. This arguably speaks not simply to the proportionality test, but the question of whether or not regulation of the print media is itself a legitimate aim in the context of the Convention (though proportionality arguments would be rather stronger).

At the broader political level, however, there is cause to believe that, but for the concerted insertion of provisions to permit the licensing and thus regulation of the broadcast media, the prospects of that being necessary in a democratic society in cultural terms would have been hugely open to question. What Leveson proposes is a system whereby print media which chooses not to associate with this “independent” regulator will face punitive sanctions when they are sued under defamation laws, even when they are successful in their defence. That’s not justice. That’s not proportionate. That’s arguably even a violation of art 11 (taken with art 13) whereby those who exercise freedom of conscience not to associate with a particular regulator are discriminated against by judicial procedure.

In summary, there is at least an arguable case that any attempt specifically to subject the print media to higher standards of ethics than the public at large (i.e. excluding basic defamation and criminality) through the use of contracting state power, is a violation of the European Convention of Human Rights either for pursuing an illegitimate aim or for being disproportionate. Even if that is not so, the underlying threat to subject the process to OFCOM or a similar body if it does not engender compliance would be disproportionate (the latter point being that of Shami Chakrabarti).

2 12 2012
INFORRM

As you will see from my earlier post, the provision in Article 10 about licensing broadcasting, television and cinema appears to have been included to make it clear that licensing was permitted, particularly in relation to technical matters and it does not cast light, one way or other, on the regulation of the print media. There can be no doubt that regulation of both print and broadcast media is potentially for a legitimate aim – namely the protection of the rights and reputations of others. The question must be, in relation to any particular proposed regulatory regime, whether it is proportionate to that aim (that is “necessary in a democratic society”). There is no warrant whatever in the Convention case law for the suggestion that statutory regulation is, of itself, contrary to Article 10. Many Convention member states have “Media Laws” governing the operation of the media – some of which are more highly rated in “press freedom” terms than the United Kingdom. There is no doubt whatever that the Leveson proposals are compatible with Article 10. And if there were to be a “backstop statutory regulator” (which he does not actually recommend) then the question of compatibility would depend entirely on its powers and the way in which it is set up.

The press themselves accept that they should be subject to higher standards of behaviour than the public at large – which is why they have agreed to be subject to the Editors Code. This is because they have – as they recognise – the power to cause huge damage to individuals and society if they act unfairly and irresponsibly. This is clearly documented in the Leveson report. In the same way that we should hold police officers or bankers to higher standards than the public at large (because of the damage they can do if they act improperly) so we must hold the press to higher standards. The press, after all has a wide range of legal privileges (not available to the public at large), not to mention an annual £600 million plus subsidy from the taxpayer as a result of VAT exemptions. In return, they owe duties and responsibilities to the public and if, as history shows, they cannot be trusted to act properly, then statute is required.

Hugh Tomlinson

2 12 2012
Allan D

Mr Lock confuses the reasons for regulating the broadcast media with those for regulating the Press. The broadcast media are licensed because of the finite amount of frequencies which they can use for their transmissions. The original purpose of OfCom was to issue licences to commercial radio stations. There is no such limitation (other than the capacity to produce newsprint and the almost infinite capacity of cyberspace for their digital editions – and Lord Justice Leveson displayed no appetite for regulating the internet) on the Press.

Also because they use public airspace the broadcast media have an obligation to provide balanced reporting and discussion of contentious issues particularly at election times. Is Mr Lock in favour of extending this provision to the Press? Does he favour a licensing system which applied to the British theatre from 1739 to 1968 whereby a public official, in that case the Lord Chamberlain, a member of the Royal Household, would inspect the content of plays for approval prior to performance?

Lord Macaulay wrote that the greatest outcome of the Glorious Revolution of 1689 was unlicensed printing. I hope that supporters of Lord Leveson’s proposals, in their enthusiasm for them, do not sacrifice this hard-won freedom.

2 12 2012
Tony Hatfield (@tonyhatfield)

There’s no doubt that Art 10 applies to the electronic media. In Groppera Radio AG and Others v. Switzerland, 1990,the court held.
… the purpose of the third sentence of Article 10 (1) of the
Convention is to make it clear that states are permitted to control
by a licensing system the way in which broadcasting is
organised in their territories, particularly in its technical
aspects. It does not, however, provide that licensing measures
shall not otherwise be subject to the requirements of
Article 10 (2), for that would lead to a result contrary to the
object and purpose of Article 10 taken as a whole.

3 12 2012
Morning Round-Up: Monday 3 December | Legal Cheek

[...] Leveson and Legality: implementation of the Report would not be Illegal – Hugh Tomlinson QC [Inforrm] [...]

3 12 2012
Law and Media Round Up – 2 December 2012 « Inforrm's Blog

[...] has run a series of articles pre and post release (see end of round up), including Hugh Tomlinson QC’s analysis on the legality of the Leveson proposals. The human rights angle is also picked up by Charon QC [...]

4 12 2012
Credible Threats? Self-Regulation in the Shadow of the State | LSE Media Policy Project

[...] In the case of the press however, self-regulation in the shadow of the state is much more difficult to achieve. First, because journalism is one of those industries where enlightened self-interest will not fuel self-regulation, simply because the press has too much to gain by breaching the rules. (Readers are human – and nosey- so privacy breach sells papers). Second, and more fundamentally, self regulation in the shadow of the threat of state regulation fails because the threat of law is such a sensitive issue due to understandable press freedom concerns. The threat of state regulation, particularly if it is loudly denounced as ‘illegal’, cannot be credible. [...]

6 12 2012
Tom de la Mare

Aren’t press pluralism laws about content, reflecting the fact that much of what is published is opinion, and a concentration of the most widely consumed opinion into the hands of a few is bad for the discharge of functions that the press and A.10 are meant to be all about? A mandatory guarantee of diversity of opinion (for the health of the body politic) seems to me to be not very different to a regime that seeks to guarantee truly independent oversight of press power to eliminate the most egregious abuses of press power (whether founded on illegality or not) at the expense of the individual and to no discernible benefit to political, artistic or literary debate, with such abuses being identified by reference to standards the Press is itself heavily involved in drafting. Much of what Leveson was looking at in terms of journalism at the tabloid end is at the weak end of commercial free speech (see Hannover and Mosely) – it’s not the Pulitzer.

Plainly, the Government does not think that A.10 would be contravened by such super light touch Leveson model, otherwise it would not be threatening to introduce such regulation if the Press don’t sort its house out. Assuming a Leveson type model is used, it seems to me that all of this is ultimately a political question as to whether you think the Last Chance Saloon fruit machine has spun its last wheel, or whether one last coin should be put in the slot in order to keep legislative intervention to a minimum. I think the Government is neither obliged to act to regulate (by, say, Article 10 positive obligations) nor necessarily precluded from doing so (by Article 10’s classic negative dimension) – it’s a question of political judgment on which views can differ.

The irony is that that the heavy threat of “if you don’t do Leveson, we will legislate to ensure you do, so get on and do it” is only likely to convert the current position of arguable reviewability of PCC decision (see the R(Ford) v PCC case) into a clear case of amenability to review, whether legislation is adopted or not, because on a Datafin approach, the contractual self-regulation is a proxy for legislation. Other notable self-regulators (ASA) dealing with press commercial free speech/ issues are amenable to JR already. The model in relation to co-regulators of broadcasting (like BCAP which coexists with Ofcom) is yet to be tested. But this seems to me to make the debate about statutory underpinnings a pretty arid one in any event.

24 12 2012
Inforrm is taking a Winter Break « Inforrm's Blog

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3 01 2013
Media and Law Review of the Year, 2012: Part 3, September to December – Judith Townend « Inforrm's Blog

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22 01 2013
Inforrm Blog – Happy Third Birthday « Inforrm's Blog

[...] Leveson and Legality: implementation of the Report would not be Illegal – Hugh Tomlinson QC [...]

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