The Letwin Plan – Freedom of the Press in a post-Leveson UK

The Letwin Plan – Freedom of the Press in a post-Leveson UK

Freedom Association meeting  25 February

Speakers

John Whittingdale MP (Chairman of the DCMS select committee).

George Eustice MP

Harry Cole Blogger

Depressingly John Whittingdale and George Eustice are both wholeheartedly in favour of the Letwin Plan which is the Government’s response to Leveson’s proposals.   I say depressingly because the Plan is dishonest in overt intent because it produces a system of regulation which pretends to be independent but is in reality authoritarian.

The proposed structure of the new system of regulation consists of a  Recognition Panel (RP) which licences a Regulator, the relationship between the two being broadly akin to that of  Ofcom licensing broadcasters, although here there will be three tiers of interested parties  –  the RP, the regulator and the press – rather than two.

The RP will carry out an assessment of the work of the Regulator  every three year. However, in exceptional circumstances an inspection can be made when deemed necessary.  The Regulator will have the power to levy substantial fines , viz:

15. 19. The Board should have the power to impose appropriate and proportionate sanctions(including but not limited to financial sanctions up to 1% of turnover of the publication concerned with a maximum of £1,000,000) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body.

The possible size of fines could have an excessive  intimidatory effect, especially on publications which have relatively small publications.

The regulatory structure is to derive its legitimacy from a Royal Charter rather than a statute  (The full draft Charter can be found at http://tinyurl.com/Draft-Royal-Charter-for-Press).  This supposedly gives it independence from politician. Apart from being the thin end of the wedge to more extreme regulation, the personnel of the RP  will be drawn from the usual cast list of the Great and the Good and,  in the cases of both the RP and the Regulator,  there will not be an outright  ban on people with a media background , merely restrictions on serving   mediafolk or their numbers.  The funding  of  the RP will come from the fees charged to those applying to be Regulators  with top ups from the taxpayer if required (the taxpayer will fund the first three years). The Regulator’s income  will come from subscriptions and fines levied from subscribers found to be misbehaving.

The dishonesty  continues with the claim that signing up to  the new regulator will be a voluntary choice for the press.  It will give a very strange meaning to the word voluntary,  because those who choose not to sign up will  leave themselves open to punitive damages in the courts whereas those who do sign up will be legally protected against such  damages.  This legal protection will require legislation.

During questions I pointed out the dishonesty and said that if the government was going to be authoritarian it was better if it was honest about what it was doing,  because this type of pretence was precisely what was disillusioning the general public when it came to politics.  Another questioner made the pertinent point that two classes of plaintiffs  would exist. There would be those suing subscribers to the Regulator (who would be protected against punitive damages)  and those  suing newspapers who had not signed up with the regulator who would be liable for punitive damages.  This could have the perverse consequence of allowing two plaintiffs with equal cases being awarded substantially different amounts in damages , or  even worse, a less serious instance of press misbehaviour resulting in higher damages than a more serious instance.   It could also  have a seriously  intimidatory effect on  the smaller publishers.

The  general problem with the Letwin Plan as outlined in the draft Royal Charter is the structural complexity of the system. The RP  will have an appointments committee which creates an executive  board  licenses the Regulator which also has an appointment panel to create an executive board for the regulator. The Regulator then has to set up a Code committee to develop the Code of Conduct.  This type of diffuse relationship is a recipe for buck passing.

Harry Cole was against the plan because the use of a Royal Charter brought with it difficulties of its own, most notably the fact that an amendment to a Charter required a two thirds majority of the Commons,  as opposed to a simple majority to repeal or amend a statute.  The draft Charter does indeed state this, viz:

9. CHARTER AMENDMENT

9.1. The Recognition Panel may add to, vary or omit (in whole or in part) any of the provisions of this Charter if, and only if:

a) a resolution has been passed unanimously by all of the Members of the Recognition Panel, who shall determine the matter at a meeting duly convened for that purpose;

and

b) the requirements of Article 9.2 are met.

 9.2. Before any proposal to add to, vary or omit (in whole or in part) a provision of this Charter (“proposed change”) can take effect:

a) the leaders of the three main political parties in the House of Commons (being the parties with the first, second and third greatest numbers of Members of Parliament at the relevant time) must each confirm in writing to the Chair of the Board that he agrees to the proposed change;

and

b) a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means  that at least two-thirds of the members of the House in question who vote on the motion do so in support of it. (http://tinyurl.com/Draft-Royal-Charter-for-Press)

Similar qualifications apply to the dissolution of the Charter – see 10. DISSOLUTION10.1

These  Charter provisions would, if valid, make the alteration or the dissolution of the Charter very difficult – the procedures have to be initiated by a unanimous resolution of the Recognition Panel and before any change can be put to Parliament (both houses) the leaders of the three largest parties in the Commons have to each agree to either a Charter change or dissolution of the Charter.   However, there is a rather large question mark over whether they are valid.  Here are the general rules governing amendments to Royal Charters:

…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of The Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy. (http://privycouncil.independent.gov.uk/royal-charters/chartered-bodies/).

And

(d) incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (ie Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way; (http://privycouncil.independent.gov.uk/royal-charters/applying-for-a-royal-charter/)

The Privy Council practices appear to come into direct opposition with the draft Royal Charter  where it touches on amendments  to or dissolution of the  Charter.  It is important to understand that  if granted the Royal Charter will not be an artefact of Parliament.  Technically it will be a Royal artefact, although in reality a government artefact.   It might be thought that Parliament being sovereign could override the Privy Council procedures, but it is not as simple as that. The Privy Council procedures are separate from Parliament.  If Parliament wanted them to be subordinate to Parliament that would mean a redrawing of the Constitution, something which has can have wide ramifications, as was show all to starkly by the last Labour government’s botched attempt at ending of the post of Lord Chancellor.

The problems do no end there. Reading through the  draft Royal Charter  there is a distinct whiff of the PCC about the set up. For example, take the parameters of the Code of Conduct:

15  7. The standards code must ultimately be adopted by the Board, and be written by a Code Committee which is comprised of both independent members and servingeditors.8. The code must take into account the importance of freedom of speech, the interests of the public (including but not limited to the public interest in detecting or exposing crime or serious impropriety, protecting public health and safety and preventing the public from being seriously misled), the need for journalists to protect confidential sources of information, and the rights of individuals. Specifically, it must cover standards of:

a) conduct, especially in relation to the treatment of other people in the process of obtaining material;

b) appropriate respect for privacy where there is no sufficient public interest justification for breach; and

c) accuracy, and the need to avoid misrepresentation.

The likely code of Conduct will be one close that of the PCC Code , which apart from being frequently not applied by the PCC also gave plenty of wriggle room, especially when the question of the public interest was raised.

None of the panellists suggested that rather than having this great regulatory edifice  a statutory right of reply (RoR) would do what was required without any chance of political interference. This is because it is a self-organising process which would involve only the newspaper and the complainant or, where an RoR was refused, the courts.   Consequently I did.  John Whittingdale tried to dismiss the idea by saying it would be unworkable because of the number of people asking to reply would be vast.  I pointed out that this would not be a problem if the RoR was restricted to a reasonable length.

I also suggested that claims for  financial redress by  those abused by the press should be dealt with through the Small Claims courts with no right of appeal from the Small Court’s verdict and no lawyers allowed, that is, just the lay plaintiff confronting the lay representative of the newspaper involved.  Again this met with a blank lack of interest by the two MPs.    The Small Claims court could also deal with refusals of a newspaper to publish an RoR.

Had I been given the time I would also have raised the problem of how the Regulator would possibly be able to handle the likely number of complainants. In this context the Information Commissioner’s office  (ICO) can give some idea of the difficulties which are likely to arise. A complaint under either the Freedom of Information or the Data Protection Acts to the ICO is likely to take a year or more to gain an adjudication despite the fact that the IFO employs several hundred people.   You can bet your life that the proposed Regulator will not employ hundreds of people because the funding of the Regulator will come from the subscribing newspapers .  The difficulty of the numbers  complaining vastly exceeding the resources available is exacerbated by the allowing of third party complaints:

15.11. The Board should have the power to hear and decide on complaints about breach of the standards code by those who subscribe. The Board should have the power (but not necessarily the duty) to hear complaints: a) from anyone personally and directly affected by the alleged breach of the standards code, or b) where an alleged breach of the code is significant and there is substantial public interest in the Board giving formal consideration to the complaint, from are presentative  group affected by the alleged breach, or c) from a third party seeking to ensure accuracy of published information.

Third party complaints also raise the problem of subjectivity by the Regulator, whose board members, being human, are likely to favour complaints which fit with their political sympathies whilst discriminating against those of which they disapprove.

In short, the proposed regulatory regime is, apart from being the thin end of the wedge for state control of the press, dishonest in intent, constitutionally unsound and administratively impractical .

During the course of the meeting I  raised  (1)  the failure of  Leveson to use the letter from Piers Morgan to the PCC in which he admitted receiving  information from the police in circumstances which  could only have been illegal  and (2) Morgan’s subsequent perjury  when giving evidence before Leveson under oath. I offered these as  examples  of the failure of Leveson to pursue cast iron evidence of serious media misbehaviour.    Harry Cole expressed an interest and asked for a copy of the letter which I subsequently supplied.

After the meeting I spoke with John Whittingdale  about Leveson  and he was very loth indeed to discuss the matter. I eventually persuaded him to  take a copy of the Morgan letter from me, although it was with the look of a man picking up a live grenade with the pin pulled out. When he had read the letter  he  said, believe or not, that he did not think it worth pursuing because it was 15 years old. I pointed out that crimes were frequently pursued after such a time, for example, the Savile investigations ,  while some of the phone hacking accusations were over ten years old.  I also pointed out that the only reason my complaints were not investigated at the time  was the police  failure  to meaningfully investigate.   Mr Whittingdale left taking a copy of the Morgan letter with him.

Robert Henderson 2 March 2013

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