The great majority of newspapers seem determined not to belong to a Leveson-compliant regulator. They say this would amount to state control. But are they right? The Press Recognition Panel is significantly further from politics and government than the Judicial Appointments Commission, yet most would agree the state does not control the judiciary.
Ah, they say, that may be so but it’s the “slippery slope”. Once the politicians are involved they will wait for an opportunity to impose draconian laws. It would be the end of press freedom.
But the “slippery slope” argument doesn’t work. Parliament could impose draconian press laws at any time but it never has and never will. All Parliament wanted in 2013 was an independent press regulator to make sure the newspapers did not go back to their old habits, as they had six times since the second world war.
The real danger is not state control of the press, it’s press control of the state. Before 2011, and national revulsion that the News of the World had hacked into the voicemail of a murdered teenager, the press had the government and the police completely under control. No election could be won without Murdoch’s support and no police career was safe if the tabloids were not kept onside.
The national revulsion led to a brief period when the politicians, and even the police, were prepared to stand up to the tabloids. But now it’s back to normal. Despite almost unanimous support for the Leveson proposals from parliament, and a cross-party agreement to give effect to them, the government wants to renege. The reason? Some senior politicians and the press barons believe the public no longer really cares. So Mrs May has been given her instructions and the government will do as it’s told. It’s back to business as usual, with the tabloids in charge.
But amidst all this, the government has a problem, namely Section 40 of the Crime and Courts Act. This was intended to give effect to Sir Brian Leveson’s proposals and is on the statute book. It would be difficult to repeal but requires commencement, so the government’s latest plan is not to commence it. However, that decision could be judicially reviewed and, given all the circumstances including the cross-party agreement and the then prime minister’s promises to the victims, independent judges may well say such a failure would be unlawful.
At the same time, the newspapers say they intend to seek judicial review of the Press Recognition Panel’s decision to recognise Impress, a Leveson-compliant alternative to the newspapers’ non-compliant Independent Press Standards Organisation (IPSO). If the tabloids could knock out Impress, there would be no recognised regulator and Section 40 would be nugatory.
That’s where I come in. The main complaint against Impress is that it is ultimately funded by my family’s charitable trust. As a result, the tabloids have labeled Impress “mine”. Of course this is nonsense. All the relevant documents have been published by the Press Recognition Panel and show quite clearly that our charity has put up money but has absolutely no influence over a completely independent Impress.
Compare this with IPSO – unsupervised, wholly owned by the newspapers it regulates and ultimately controlled by four press barons. It is the old discredited Press Complaints Commission with a new name. It’s anything but independent.
If IPSO’s chairman, Sir Alan Moses, were to upset Paul Dacre or Rupert Murdoch, he could be dismissed with a payoff. By contrast, however annoyed I might be by Impress or anyone involved with it, I would be unable to do anything at all, as the documents clearly show.
My family’s support for Impress is a public service, that’s why it’s charitable. To understand why there is a desperate public need for a regulator backed by Section 40 of the Crime and Courts Act., consider three examples.
First, a very wealthy, but dodgy, individual, is investigated by a major newspaper. Without Section 40 he sues the newspaper. He knows he will probably lose and be ordered to pay the newspaper’s costs. But – and here’s the problem – the newspaper will only get about 70% of its lawyers’ bills. So it can be hundreds of thousands of pounds out of pocket in a big case, even if it wins. Of course it will cost Mr Dodgy himself several times more, but he’s rich and doesn’t care. He has effectively fined the newspaper a huge sum and knows he is unlikely to be troubled again.
However, with Section 40, the newspaper could invite him to inexpensive arbitration. It would explain that if he insists on his right to go to court, the judge will be asked to award indemnity costs against him, whatever the outcome. This would make it very much harder for him to intimidate the newspaper.
Second, a rich individual confronting a small local newspaper or website. Armed with Section 40, the local newspaper would respond: accept inexpensive arbitration or pay all the costs. At present, without Section 40, the wealthy can effectively silence any publication or journalist that cannot afford the costs of litigation. This gives the wealthy unconscionable power over journalism.
Third, there’s access to justice for ordinary members of the public, probably the biggest problem of all. I remember saying to Sir Brian Leveson during his Inquiry that I thought it quite wrong that only one per cent of the population could afford to sue a major newspaper. His reply was “I think you’ll find it’s less than that”.
His proposals, if they come into force, will solve that problem. A newspaper could refuse inexpensive arbitration and insist on going to court, but would then have to pay both side’s costs. That’s only fair: if you and I are going on a journey and I can only afford the bus, but you insist on a Rolls Royce, you should pay. We cannot claim we live under the rule of law if only a tiny minority can afford to take on a major newspaper.
The idea that there is a threat to freedom of the press from Impress and Section 40 is misconceived. On the contrary, the Leveson reforms guarantee the right of all newspapers and journalists to investigate and publish without risking ruinous litigation costs. At the same time, inexpensive arbitration gives the public access to justice.
The ultimate rebuttal of the tabloid claim that Impress would end press freedom is the support of the National Union of Journalists. More than anyone, its members want and need a free press. But they know this will never come from a clique of press barons and a tame IPSO. Real journalists need an independent regulator and an absolutely trustworthy whistleblower’s service. IPSO is neither
So given the significant advantages of a Leveson-compliant Impress, why do a few serious publications, notably the Financial Times and the Guardian, not want to join? Probably because, with some justification, they feel they don’t need to be regulated. I well understand that having worked hard to stop governments regulating safety in motor sport. We succeeded, but only because we did what was needed and did not go back to the old practices every time a bad accident had faded from the public consciousness.
Once Section 40 is in force, the advantages of preventing financial bullying by an aggressive oligarch or a big company may outweigh remaining reservations. That should persuade all newspapers except, perhaps, the worst of the tabloids, to join Impress, or at least make their own regulator fully Leveson-compliant.