Baroness O'Neill of Bengarve
That this House takes note of the relationship between media standards and media regulation.
Baroness O'Neill of Bengarve
My Lords, it is a privilege to open this debate on media standards and regulation, and to do so at this stage in events. Some noble Lords may be wondering whether this is the right time to debate this topic, given that Lord Justice Leveson has yet to report on his inquiry into the sad and sometimes criminal practices that have made media standards and regulation an urgent issue. Ministers will, of course, not wish to take a position on media standards and regulation in advance of his report. I think that we all recognise that as the context of this debate. However, I believe that we still lack a clear view of the sorts of issues that will be at stake when Lord Justice Leveson reports. Therefore, this is, on the contrary, rather a good point at which to have an initial debate, which I hope can help pave the way for later and more detailed consideration. I look forward with great pleasure to hearing the speeches from so many noble Lords today.
I begin by declaring an interest as the incoming chair of the Equality and Human Rights Commission. The issues raised by this debate bear on rights of freedom of expression, rights to privacy and many related rights. Everything that I shall say in this debate draws on work done across the previous decade on a wide range of speech rights, including international debates in political philosophy and jurisprudence. None of it draws on positions taken by the commission that I shall shortly begin to chair.
I shall focus on two questions. The first is whether media regulation can be used to support media standards without risk of censorship. I think that that is a formulation of the fundamental issue. And, if it can, what sort of media regulation would be compatible with a free press? Discussion of the first question is already widespread and it is often said that any regulation, other than self-regulation, far from supporting media standards and freedom, would corrupt them. Others think that media regulation and media freedom need a statutory basis; namely, regulation that can use specific and limited powers to investigate and to sanction failures.
The particular form of regulation provided by the Press Complaints Commission has come in for a lot of criticism, even by those who think that self-regulation of some other sort could be made to work. In my judgment, however, the details of the PCC complaints process are only part of what has been defective. We should not expect a complaints procedure of any type to make more than a minor, if useful, contribution to maintaining media standards. Media content is not a consumer good in the standard sense but is a public good in the economists’ sense of the term. Complaints procedures alone therefore cannot do much to secure media standards. That may, of course, have been part of the appeal of the PCC approach in certain quarters. In the event, the governance and funding of the PCC did not enable it to achieve even those benefits that a good complaints procedure might have achieved. The defects of its complaints so-called resolution procedure have been amply documented by Full Fact, an independent fact-checking organisation, whose recent briefing demonstrates the sad limitations of the PCC’s supposed commitment to accuracy and the ways in which complainants have been let down.
Those who are searching for alternative and more adequate forms of self-regulation have made many suggestions, and I will be interested to hear proposals that other noble Lords may think could be made to work. My own belief is that there are strong reasons to be sceptical about the possibility of devising adequate forms of self-regulation, even if the format of a complaints procedure is seen for what it is. Let me remind your Lordships of a few of those reasons. This is certainly not a new problem, and the evidence that self-regulation will not work is now very substantial. Since the first Royal Commission on the Press, set up in 1947, there have been repeated attempts to find an effective form of media self-regulation. Across more than 60 years, all have come to grief, as has been documented by the Media Standards Trust in its recent report A Free and Accountable Media and covered in recent briefings from the Foundation for Law, Justice and Society. So the burden of proof that self-regulation can work now sits squarely with its proponents. The history of successive failures in self-regulation provides strong evidence that it always ends up as self-interested regulation.
Secondly, the task of convincing others, and above all the public, is much harder than it would have been in the 1940s, for several reasons. Society has changed in immense ways; other institutions and professions have lost the privilege and the culture of self-regulation, making it hard to see how such privilege can be justified or can work for the media. Thirdly, self-regulation is not, contrary to some assertions, necessary to protect media freedom. We know that because other countries which also enjoy a free press have found approaches to media regulation, not self-regulation, that are compatible with press freedom. I call attention to Lara Fielden’s recent report for the Reuter’s Institute, titled Regulating the Press: A Comparative Study of International Press Councils.
Finally, proponents of self-regulation all too often assert that the press should be free, “apart from requirements to comply with the law”. That may be true, but shows nothing about what form the law should take. The assertion simply begs the question of showing which forms of media regulation are, and which are not, compatible with a free press and adequate standards of journalistic practice.
I turn now from the question of whether regulation must be ruled out in principle to consider which sorts of regulation are and which are not acceptable. Why should we support and protect one or another conception or configuration of media freedom? What do appeals to freedom of the press, or freedom of expression justify? What limits do they set on permissible statutory regulation? Do they require specific approaches to statutory regulation? These fundamental questions cannot be settled by mere assertion, yet recent discussions often do no more. Appeals are made to rights of free speech and a free press or, as we have been used to saying since the Universal Declaration and the European Convention on Human Rights 50 years ago, rights to freedom of expression. So far, so good, but an appeal to a charter, declaration, constitution or convention is in itself no more than an argument from authority. But these documents are respected authorities. Similarly, US debates of press freedom appeal to the First Amendment to their constitution, which asserts that Congress shall make no law abridging the freedom of press, and they too appeal to good authority. These august documents do not justify any specific configuration of media freedom. That is both because declarations and constitutions do not do justifications, and because they are very indeterminate. They offer only starting points for justifying press freedom, and each requires interpretation. The accounts of press freedom that emerge from the best reasoned interpretations of human rights documents will be the best justifications that we can offer for specific configurations of media freedoms.
If this point seems contentious, it may help to remember that these authoritative documents do not proclaim absolute rights. They point to a range of rights each to be realised in ways that respect other rights. Article 10(1) of the European Convention starts with a ringing and well known assertion:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.
However, Article 10(2), so much less read and so much less cited, qualifies this point by stating that:
“The exercise of these freedoms, 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others”,
and so on. So much for the thought that a mere appeal to human rights documents is going to settle anything, but what else do we have? I believe we have a lot more. The best arguments we have will not justify unconditional media freedom but they will show us something about the acceptable limits of media freedom, and thereby the acceptable limits of regulation.
One argument often invoked is that media freedom is necessary for discovering truth. The argument has deep roots in British political thought: John Milton wrote in Areopagitica,
“though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?”.
It pains me to say this but Milton’s argument is doubly defective as a justification of media freedoms. Truth is often worsted in free and open encounters: that is why we regulate speech where truth matters: for example, in courts of law and academic publishing.
Secondly, we need media freedom that also protects speech that does not even aim at truth, such as literary and artistic expression and horoscopes. Where media speech aims to discover truth, disciplines analogous to, but different from, those needed in other truth-seeking endeavours matter. Pausing for a moment on that specific point, we shall need to think about special protection for genuine—I emphasise “genuine”—investigative journalism. We discussed this to some extent exactly three months ago today in a debate on the Select Committee on Communications report on investigative journalism, chaired by the noble Lord, Lord Inglewood.
We also hear frequent references to another landmark of British political thought, John Stuart Mill’s famous argument on behalf of rights of self-expression for individuals. However, it is one thing to say that individuals have rights of self-expression, and Mill’s argument applies to individuals, not to organisations, which are not “selves” in the relevant sense. In general, I believe we are right when we think we should regulate the speech of powerful organisations, and we must consider the case for statutory regulation of media communication, but the problem is: how is this to be done in a way that is compatible with the necessary media freedoms? My suggestion is that the media should be free to communicate any content they choose provided that the processes they use enable their intended audiences to follow, understand and assess that content. Regulation of process but not content would protect media freedom but also media standards. Good journalism has always aimed to do this.
I finish with brief examples not drawn from the grand heights of investigative journalism, on which we are so often rightly asked to focus, but from the daily content of humbler journalism, in which much is hidden from audiences that they need to know if they are to assess content. I suggest that if the media were required to be transparent in some of the ways in which they have insisted other organisations and professions should be transparent, we might add a great deal to media standards. I suggest three possible forms of transparency. One is openness about payments from others. At present we cannot tell whether money has been paid to secure certain content. Did celebrities pay for it? Who paid for the lovely clothes, hotels and meals that are supposedly reviewed? I think that readers, listeners and viewers should be able to tell. Why should advertising standards not apply to all paid-for content, including that paid for or provided in kind?
Secondly, there should be openness about payments to others. At present, audiences cannot tell which media content has been purchased. Even where it is not possible to reveal the name of the vendor, surely it could be made clear that certain content had been acquired by payment.
Thirdly, there should be openness about interests. Owners, editors, programme makers and journalists, like many others, have interests. However, they remain curiously exempt from requirements to disclose them. The media often demand transparency about the interests of others in powerful organisations. I suggest that what is sauce for the goose is sauce for the gander too.
Finally, we must, of course, protect investigative reporting and think with care. There is much more to be said about the protection of genuine investigative journalism, about the limited nature of anti-monopoly provisions and about the domination of British newspapers by owners who are not taxpayers. I have merely pointed to some of the things we need to consider at this stage and I look forward to hearing other contributions.
Lord Wakeham
My Lords, I begin by saying how pleased I am to see my noble friend Lord Younger of Leckie sitting on the Front Bench. His father was a great friend and colleague of many of us over many years and I am tempted to say that if he makes half as good a speech as his father would have made in these circumstances he will do very well indeed.
I congratulate the noble Baroness who initiated this debate. She did it with the style and wisdom that we expect from her. While I am not sure I agree with everything she said, she put her case extremely well and it needs to be taken notice of.
We all wait with interest to see what Lord Justice Leveson will say and I will try to set out as best I can what I said when I gave evidence to him. Many people have grappled with the issues of press regulation and standards for many years. We have had royal commissions, and inquiries have come and gone. In the 1990s, I was involved in government when we were trying to decide what to do, and I was the chairman of the Press Complaints Commission for seven-and-a-half years. The truth is that there are not many potential models of self-regulation. Either the industry runs it or the Government run it. I do not believe that there is any magic formula that has not been tried.
My experiences as chairman of the Press Complaints Commission led me to conclude that self-regulation is certainly not perfect, but it did work, by and large, for the public and that should be our main concern. Self-regulation is practical and flexible and I am extremely glad that my noble friend Lord Hunt has found a way to develop it through the use of contract law, which is a real improvement. Statute, on the other hand, is fraught with difficulties. First, let us consider the public. Self-regulation may provide rough and ready answers but it does it quickly and it does it free and with common sense. Regulation through statute drags on for years. For example, there was a recent case involving Ofcom where it reached an adjudication 18 months after the programme was broadcast. That is crazy, and if it had happened when I was running the PCC, there would have been a dickens of a row. It is costly because statute means lawyers. The newspapers would fight it and people complaining would have to drag in lawyers as well, so the public would lose. The cost would be prohibitive. I read in the paper the other day about a footballer who lost a privacy case. He probably deserved to—I do not know enough about the case—but it cost him £500,000 to fight it. If that is what is offered by a statutory system, it is of no use at all to ordinary people in this country.
Then there are the unforeseen consequences. When the Human Rights Bill was going through this House—I see in his place the distinguished former Lord Chancellor, who disagreed with me pretty strongly at the time—I said that my worry was that Article 10 would produce a privacy law that would be available to the rich and those who wish to conceal things from the newspapers, but would be of no use at all to the ordinary person in this country. That is what has happened. As a result, we have an expensive system of taking cases to court, but 99% of the public are not able to access it. We also had the difficulties of injunctions and so on, which brought the law into disrepute.
There is also the practical problem of the internet. How could you put statutory controls on a weekly paper, such as the one in my former constituency, the Maldon and Burnham Standard, when a blogger with half a million followers can escape those statutory controls? You cannot make statute work when there are so many content providers. The world is a completely different place from 10 years ago and it will change again in the next 10 years. A statute would be out of date long before it ever left the House.
Finally, there is for me the crucial question. I do not see how you can make a statutory system work without a licensing system. What do the Government do if publishers refuse to sign up? Many would refuse to do so. Do you fine them? Do you send them to prison? Or, ultimately, do you stop them publishing? Unless you are prepared for those things, you can never make a statutory system work.
So we await Leveson. But as I told him—and he was not very pleased with this—even if the Government do not act on his report, he will have made a real contribution because he has caused us, once again, to focus on these important issues.
Lord Puttnam
My Lords, 10 years ago the noble Baroness, Lady O’Neill, delivered a seminal series of Reith Lectures entitled “A Question of Trust”, which quickly become a touchstone for many in your Lordships’ House. Had it enjoyed a similar influence on the proprietors and editors of sections of our national press, we would almost certainly not be here this morning. That is because, when it comes to it, this debate is all about trust and the vacuum created when it ceases to exist.
Few of us could possibly have imagined, when the news became public that Milly Dowler’s phone had been hacked, that the result would be a horrifying and long drawn-out exposure of sections of the UK media—one that has at times beggared belief in the descriptions of criminal behaviour by those who, for many years, had acted as though they were all but untouchable. It is understandable that they had come to feel that way with regard to a self-administered Press Complaints Commission; it is a great deal more troubling in their relationship with “the long arm of the law”.
Here was a small but immensely powerful clique of people who appear to have acknowledged no rules other than those that accelerated their personal and political ambitions. More disturbingly, it quickly became evident that this was not simply about an “out of control” media. No, these systemic behavioural patterns, with their pragmatic self-justifications, had leeched far deeper into civil society—into the police and politics and, in fact, into just about every nook and cranny of British public life.
A few years ago, when I was travelling the world with UNICEF, I found myself in countries where the notion of democracy—certainly as we know it—was, to put it mildly, something of an abstraction. At the time I concluded that, so long as a nation could develop a reasonably well-trained, honest and impartial judiciary, it would eventually manage the difficult and sometimes painful transition to a fully functioning nation state. However, the trail of deception, as it began to emerge from the Leveson inquiry, made me begin to question that assumption.
I was forced to come to terms with the fact that once the media, politicians and the police begin to collude with each other, or to discover a shared agenda that is neither transparent nor in the best interests of the public at large, even the finest judiciary in the world is at that point rendered effectively powerless. If there is a toxic triangle of a needy and fragile politics that believes itself to be dependent upon, or is simply in thrall to, an element of the media—an element that in turn has managed to infiltrate the very highest levels of law enforcement—once those relationships have become corrupted, then the game is effectively up for the rest of us. I understood for perhaps the first time that, taken together, these seeming “pillars of society” form an intricate and interrelated ecology, and that the development of malign intent in one leads almost inevitably to the corruption of the others.
Surely I am not alone in feeling angry at the way in which, for well over 20 years and without any apparent sense of irony at the extent of their own mendacious hypocrisy, sections of the media have been exploiting the rest of society—angry at the predatory manner in which they have pounced upon our frailties, exploited our weakness, preyed on our fears, fanned our petty jealousies and trumpeted our inadequacies, all in the guise of freedom of expression. One has only to look at what we now know went on in relation to the Sun’s coverage of the Hillsborough tragedy to see it as part of a systemic pattern of behaviour—a pattern of behaviour of an entirely different order from that which the BBC would appear, quite wrongly, to have permitted. It is my most sincere hope that nobody—at least, here in your Lordships’ House—will attempt to claim any kind of spurious equivalence between what is alleged at the BBC and the litany of crimes and misdemeanours revealed by the Leveson inquiry. To do so would be the purest humbug.
Why does all this matter? It matters because I believe that Britain, not much over a year ago, came frighteningly close to a kind of silent putsch. Ironically, it was only the tragic death of Milly Dowler and the media frenzy that followed that allowed us to get a good, long, hard look at what had been going on, and most reasonable people discovered that they did not much like what they saw.
I am the son of a newspaper man. I have a blood tie to the notion of a free press that is every bit as great as that of Elisabeth Murdoch. However, as she emphasised in her recent, and altogether excellent, MacTaggart lecture:
“With great power comes great responsibility”.
That being unarguably true, the crucial question becomes: has the great power of the press been handled with appropriate levels of responsibility, let alone empathy? Most of the evidence gathered by the Leveson inquiry would suggest that that has been far from the case.
In a speech on Monday, the Prime Minister made the point that personal responsibility lies at the heart of our criminal justice system, and of course he is absolutely right. Similarly, I am sure that I was not the only Member of your Lordships’ House to experience an overwhelming sense of admiration at his handling of the Bloody Sunday and, more recently, the Hillsborough apologies. Nor could I have been alone in finding his use of the phrase “double injustice”—a phrase which I understand he personally coined—to be absolutely profound. Surely the political and social catharsis generated by those two announcements should encourage politicians of all parties to see that there are very real alternatives to the traditional world of cover-up and evasion.
Given the lessons learnt from those recent experiences, it seems reasonable to hope that the Prime Minister, having caught the Zeitgeist and understanding the possibilities opened up by a new type of visible justice, will not allow himself to become the latest in that long line of well-intentioned leaders who, when push came to shove, buckled in the face of media intimidation. He has a unique opportunity to take the side of those who want to clean the stables and against those whose sole objective is to continue to make hay in the way they always have done, whereby in their desire to shock and stupefy, they have managed to become the actual enemies of the possibility of social harmony—the type of society we briefly glimpsed during those few magical Olympic and Paralympic weeks.
We have arrived at an important watershed, and Lord Leveson and his colleagues have some difficult and incredibly important judgments to make in the next few weeks. Without the backstop of some form of legislation, whatever system of regulation Lord Leveson recommends can only be as robust and honest as its most reluctant participant, against whom rapid and affordable access to justice must be guaranteed.
I searched the evidence obtained by the inquiry for signs that serious journalists, as they move between print and broadcast media, find the regulatory environment of the latter in any way inhibiting. I could find none. Similarly, if you ask any British editor why American newspapers and magazines, protected as they are by their first amendment rights, continue to employ fact-checkers, you will find it very hard to get a coherent explanation. The truth is that the British press and its editors have to become as accountable as the rest of civil society. They are not a special case and they have only themselves to blame for having lost the argument for exceptionalism and, with it, the right to self-regulation.
In conclusion, I suggested earlier that what we have been encouraged to think of as individual and self-sustaining pillars of freedom are in fact an intricate eco-system, all elements of which are required to prove themselves capable of trust and all of which are required to behave with equal probity, or, quite inevitably, each will infect the other until all have become corrupted.
Lord Razzall
My Lords, although the noble Baroness’s Motion clearly refers to the media generally, from the debate so far and, I suspect, from the interest in the debate, it is obvious that it will focus on press regulation and what should be done about it. I think two principles should underpin any reform of press regulation. First, the system needs to be capable of putting a stop to the kinds of ethical, immoral journalistic practices that have emerged from the Leveson inquiry. During the course of several months, we have heard a powerful and depressing catalogue of the distress suffered by ordinary people—not just celebrities—at the hands of a press that often appeared to be acting cynically and ruthlessly to exploit other people’s pain. Of course, there are not just the victims of phone hacking, but also the Liverpool supporters at Hillsborough who, all those years ago, witnessed the deaths of 96 football supporters and who were victims of recklessly inaccurate reporting in the Sun newspaper. The second test, it seems to me, should be that any reform should prevent any government intervention in a free press. As the Deputy Prime Minister said last week,
“Of course it would be completely unacceptable to do anything that allows politicians and governments to intrude upon the content of what the media do”.
However, turning to the criticism that the noble Lord, Lord Wakeham, had indicated to those who are suggesting some statutory underpinning, there is a very clear distinction between a statute that allows political interference in what newspapers want to publish and an entirely independent body, established in law, that holds powerful press interest to account for implementing their own codes of conduct. In other words, it is certainly possible to keep front-line self-regulation that allows the press to police itself and deal with complaints at the speed that the noble Lord, Lord Wakeham, referred to and then establish an independent backstop regulator, with powers carefully prescribed in law, which does not interfere with content but simply ensures that the self-regulated keep their own promises. Of course, one would not allow any politicians any place on that backstop body.
We surely all agree that we cannot allow the continuation of a system that has failed time and time again. Since the 1940s, there have been three royal commissions and three further inquiries or reviews that took evidence from newspaper proprietors and editors, each publishing a report and recommendations. We all remember the Calcutt committee—I think that is what the noble Lord, Lord Wakeham, referred to—which was established in 1989, after flagrant and repeated breaches of ethical standards by national tabloid newspapers in the 1980s. That was when reference was made to a drink in the last chance saloon. We need to remember that it was the friend of the noble Lord, Lord Puttnam, Rupert Murdoch, who prostrated himself before that committee promising real change. Despite the recommendation from Calcutt in its second report in 1993 that some statutory element was required, the Government were persuaded not to implement those recommendations and, 20 years later, we are back to the same issue.
I am not being sycophantic in commending what my noble friend Lord McNally said during the progress of the Communications Act 2003 when he introduced an amendment which would have required the PCC to send an annual report to Ofcom, to be included in Ofcom’s report to Parliament, in order to allow more parliamentary scrutiny. However, Labour resisted those amendments with suggestions that that was a slippery slope to a state-controlled press. I see the noble Lord, Lord Puttnam, nods, remembering that debate. My noble friend Lord McNally also talked in that debate about the need for the PCC to be formed into a genuinely independent body at arm’s length from editors with compulsory membership and with the power to impose serious financial sanctions of up to seven figures. That, I suspect, is where we shall end up again now, nine years later.
Reference has been made to the press industry. To refer to the noble Lord, Lord Hunt, as the press industry is probably inappropriate but he has proposed a new contractual arrangement to which there are a number of ingredients of which noble Lords will be aware, but they all require the continual involvement of editors and proprietors. A truly independent system of regulation requires independence from editors and proprietors as well as independence from government. It requires the ability to provide redress and sanctions, including fines. It requires the ability to investigate when things go wrong, and it needs the ability to compel membership from large and powerful press corporations that have, for far too long, thought themselves untouchable, Mr Desmond.
It works perfectly well in other industries. Virtually every other industry in this country has been subjected to comprehensive overhauls in transparency and accountability. The medical profession, the legal profession, the financial industry, pharmacists, coroners, social workers, teachers, local councils, and the BBC have all been reformed in accordance with modern, 21st century demands for justice and fair dealing—all except the press. Let us take the judiciary. We jealously guard the independence of our judiciary and judges are appointed by an independent and statutory Judicial Appointments Commission. We do not complain that our judges are state appointed.
We must surely agree that the system now needs to be changed. The Government must have the resolution and determination to stand up to the newspaper editors and proprietors and say, “We will not allow this to happen again”. It is a unique moment in British media history in terms of promoting great public interest journalism and making sure that the kinds of abuses that have gone on for years in some of our newspapers can never be repeated without proper redress for victims and proper respect for the vast majority of journalists who want to get on with a vitally important job.
The public agree. A recent opinion poll by the organisation Hacked Off demonstrates that 78% of the public want an independent body established by law to regulate the press and 77% believe that it is no longer acceptable for proprietors and editors to control the complaints system. The Deputy Prime Minister has made it clear that the Government have asked Mr Justice Leveson and his colleagues to do a job. Assuming that he comes up with proposals that are proportionate and workable, we should implement them. We should support that view.
Lord Janvrin
My Lords, I add my thanks to my noble friend Lady O’Neill for instigating this debate this morning, particularly as I was a member of the Joint Committee on Privacy and Injunctions that reported earlier this year.
I pay tribute to my noble friend’s contribution to the thinking in this area over many years, not least in her Reith Lectures of 2002 entitled “A Question of Trust”. I mention that, as did the noble Lord, Lord Puttnam, because the question of trust lies at the heart of this issue of effective press regulation, a point to which I shall return.
I agree that it is timely to have this debate on some of the key principles underlining the whole question of regulation before the Leveson inquiry reports, because it offers an opportunity to probe a little more deeply into the “what” and the “why” of effective press regulation before tackling the “how”, and in particular whether there should be a new system of self-regulation or the introduction of some form of statutory underpinning.
The “what” of effective press regulation is trying to answer the question, “What should that regulatory system be for?”. The distinction to which my noble friend drew attention is important. She drew attention to the fundamental distinction between the regulation of content and the regulation of process. It goes without saying that anyone should tread exceedingly carefully if talking about the regulation of content. I do not think that anyone seriously doubts that a regular supply of independent, informative, critical, investigative, irreverent, entertaining press content is essential to any free and democratic system as we understand it, certainly in this country.
There are of course restrictions on press freedoms, which were mentioned by my noble friend, particularly in terms of defamation or the difficult balance to be struck with the individual’s right to privacy. That raises the related question of how best to define the public interest. Those crucial issues, which will rightly be drawn into the debate on effective press regulation are hugely important, but I want to concentrate my brief remarks today on the regulation of process and conduct.
What do we mean by the effective regulation of journalistic conduct? We are talking, for example, about standards of fairness, balance and the separation of fact and opinion, or the conduct in the way in which stories are obtained or inaccuracies are corrected. This seems to be the key point: how can effective press regulation maintain, and if possible improve, standards of practice and behaviour? Certainly accepted codes of conduct have a crucial role to play, setting out what is judged acceptable and what is not. Any new regulatory system needs to be the setter of standards and, if possible and where necessary, the mechanism of change as society’s views on those standards evolve. It seems to me that the best people to determine what those standards should be are those in the media and the press industry itself. They know their business and how best to define best practice; in other words, self-regulation has relevance when setting the rules.
But the question of what a regulatory system should be for does not end there. It is about upholding those rules and standards: how do people seek redress when they think that standards have been breached? An effective system will allow a quick, simple and affordable way for individuals to challenge newspapers on their behaviour and standards. Some form of arbitration or ombudsman role—one with teeth, as many now accept—seems essential. Here, independence is imperative and this to my mind is where self-regulation in the form of arbitration, however it is dressed up, seems to undermine the whole principle of independence and weaken trust in the system.
That brings me on to the “why” of press regulation. Why is effective press regulation so crucial in today’s age? In my view, the greatest threat to the best of our media in this country lies not in overregulation, but in the commercial pressures of the digital age. Fewer people are buying newspapers, local or national, because they can get their news elsewhere—online—and they can get their opinion elsewhere, from the blogosphere. But we are much more likely to be willing to continue to pay for news and opinion if we know that they are of the highest standards; in other words, if we trust the provider. This seems to be the best reason for effective press regulation. If it helps to maintain and drive up standards, effective press regulation can contribute to the commercial viability and health of the industry, not detract from it. As a point of detail, I am not sure that those who argue for self-regulation have thought creatively enough about certification or kite marking in this whole business, not only as a way of driving up standards but in order to encourage the widest possible adherence to any regulatory system.
This brings me to the “how”. The question in my mind is: how do you arrange an effective system of press regulation that is truly independent of government, business or the newspaper industry itself? It has to be universally accepted by the press, it has to set standards, to act as an arbiter and ombudsman, and have the teeth and the sanctions to ensure that those standards are met. Can it do all these things without some form of statutory underpinning and yet be considered to be truly independent? I look forward to seeing what the Leveson inquiry concludes.
Lord Fowler
My Lords, first, I congratulate the noble Baroness on initiating this debate, and the very cogent way in which she put the issues. I find myself in great sympathy with the points she made; rather more, I might say—very mildly of course—than the case put by my noble friend sitting beside me. But I join him in welcoming the noble Viscount, Lord Younger, whose father we all remember with enormous affection.
I am so old that when I joined the Times at the beginning of the 1960s, the front page was entirely covered with advertisements; there were no garish headlines; the writers were anonymous; and the paper took pride in the fact that it was accurate and a journal of record. One might think that it was an old, fuddy-duddy newspaper, waiting to be told what to write rather than to investigate, but that was not remotely the case. I remember the then editor, William Haley, a very upright and honest man, telling the assembled staff what their role was. “The job of a newspaper,” he said, “is to reveal”, and he was right—that is its job. Years ago it was to reveal the conditions in the Crimea; in recent years the equipment of the British troops in Iraq or Afghanistan, or the position with regard to thalidomide.
I entirely defend the right of the media to reveal, to probe behind what officialdom wants kept secret, and I entirely defend and applaud the media when they stand up for human rights and expose injustice. That is overwhelmingly in the public interest. But do not ask me to defend the activities of those who pry, sometimes illegally, into the private life of the citizen, or employ photographers with long-range cameras to get personal shots of celebrities, or bribe the police or other officials in order to get a story. The task is to offer a defence to the public against the rogue reporters while allowing newspapers the total freedom to expose the truth and work in the public interest.
No one claims that that division is easy. That is why, many months ago, I advocated an independent inquiry into phone hacking. I am told that I was the first in Parliament to do so, so I applaud very strongly the way that Lord Leveson has gone about his work. His inquiry has been comprehensive and fair. Frankly, what I deplore is the undoubted effort that is now taking place to denigrate and rubbish the report, even before anyone in Parliament or the public has had the opportunity of reading it. Let no one doubt that there is a campaign in motion to do just that.
Perhaps I might say in parenthesis to my own Front Bench that it was the Prime Minister and the Government who set up this inquiry and they were totally right to do so. It is certainly not open to any member of the Government to dissociate themselves or attack the inquiry process. There may well be differences of view at the end, but we should at least wait to see what Lord Leveson has to say. We should also acknowledge the part that the inquiry has already played in revealing what has been taking place. We now know that around 1,000 people were the likely victims of phone hacking, that it was not an isolated rogue reporter who was responsible but an organised conspiracy, and that the abuse stretched way beyond the News of the World to other newspapers.
The inquiry has given the clearest indication that the country is getting serious about the abuse that has taken place. It has also shown how truth can be revealed, not in a piecemeal way but comprehensively. That is what concerns me about the various different inquiries that are taking place into the Jimmy Savile case. Of course, the action or inaction of the BBC should be investigated but to get a complete picture so should other areas, such as the health service. I was Health Secretary for six years. I met Mr Savile once or twice in that time, as did my predecessors and successors. Did no one at Stoke Mandeville, Leeds or Broadmoor know about his activities? Was information passed on, and if it was, what then happened? These are not just questions of historic importance; they have total relevance today if any similar thing should happen again. That is why I believe that the public would be best served by one inquiry designed to reveal what really happened and the lessons that could be learnt from it.
As far as the BBC is concerned, I am bound to say—and I speak as a defender of the BBC—that its response to the allegations has been somewhere between woeful and shambolic. I return to a point that I and my former committee made previously: the BBC in responding to issues of this kind would be much better served by a chairman who was the real chairman of the BBC and an independent body for complaints, rather than a system that is ridiculously divided between the executive on one side and the BBC Trust on the other.
Therefore, the perennial problem of the BBC is the trust and the perennial problem of the press is the Press Complaints Commission. Let us be clear on one point, to put it at its most moderate: the national press—because it is predominantly the national press that we are talking about—has a case to answer. Since Leveson was set up, we have seen a newspaper closed down and 40 journalists arrested, and the clearest evidence has been accumulated that the public interest has been ignored. If this was some other industry, it would be the press themselves who were calling for radical reform and saying that action should be taken.
We need a complaints system which is demonstrably independent and which is not seen as a defence mechanism for the press; we need a system where the public interest is put first; we need a system which is as fearless as the best of the newspapers that it is reviewing; and we need a system which includes all newspapers and where there is a power of investigation into abuse.
Then, of course, there is the question of whether there should be a statutory element. Having argued that we should wait for Leveson, I just say this: no one is arguing for overriding statutory controls that limit the legitimate interests of the press. Equally, however, I find it difficult to accept the argument that any kind of statutory underpinning will lead to the end of free journalism as we know it. That is a ludicrous overstatement of the case.
Following Leveson, we have the opportunity of putting things right. I say to the Government that we do not want any more words about drinking in the last-chance saloon. That time has passed. What we want now is action in the public interest, providing us with a free press but with proper safeguards for the legitimate rights of the public. We have all seen in the past how reports have been shelved due to the opposition that can be whipped up. We all know what the easy way is to get newspaper headlines, but I hope that, this time, Ministers will consider most the interests of the ordinary citizen.
Lord Sugar
My Lords, there is a need to crank up regulations controlling the media. They have, for far too long, run wild with very little control. A few weeks ago in this Chamber, we discussed the Defamation Bill, and this debate today touches on some of the same ground. Regrettably, in the case of defamation, your Lordships are considering easing up and, some may argue, actually making life easier for the media to continue to run wild.
What we have seen in the past few years is the complete decay of decency and morals in the media. They do not seem to exist at all in the printed media and sometimes, I regret to say, in television. Desperation to get a story has led editors to stray from honesty and truthfulness to using unfair means of finding or creating devious angles on a story, or even tricking the subject of the story by illegal means. Of this, of course, your Lordships are fully aware in light of the recent inquiry carried out by Lord Leveson.
It is my opinion that journalists should be licensed. Moreover, editors should be made responsible for what is printed in their newspapers or broadcast on their TV channels and they, too, should be licensed. I do not see any room for self-regulation. There should be an authority which dishes out, for want of a better expression, yellow cards or ultimately red cards for those who continually abuse the system—or, to use our American cousins’ terminology, “three strikes and you’re out”. In other words, we should say, “Your newspaper, your television channel, has been guilty of publishing lies or indulging in irresponsible journalism under your watch and, therefore, you are banned from operating as a newspaper or television editor”—in the same way that company directors are disqualified from running companies when they act irresponsibly and illegally.
The Press Complaints Commission, I regret to say, is weak—I apologise to the noble Lord, Lord Wakeham, because I know that he was the chair of it. However, I take a point that he raised about a footballer having to spend half a million pounds to defend himself and to get some justice. Well, does that not answer the question? If the Press Complaints Commission actually had some clout among the press, one would not have to go and spend any money with lawyers; it would actually punish the media. I do not care what anyone might say to argue with that statement; I can assure you that there are very few, if any, in the printed media who take the PCC seriously.
There was a day when the once great newspaper, the Sunday Times, would spend months working on a story, breaking news on some revelation. The journalism was carried out very diligently and carefully so that the content of the finished article was accurate. Those stories would take weeks, if not months, to develop and were kept under wraps until they broke, bringing massive revelations. These days, newspaper editors are demanding a story a day. They are forcing their staff to fabricate stories—to make up stories—to provide compelling headlines for their front pages. It is this pressure which is inducing staff to act illegally in the manner which the Leveson inquiry has covered in full.
It is impossible for journalism to be treated in the same way as a production line. You can not fabricate stories in matters of public interest simply because events are not occurring as regularly as newspapers would like them to. It is because of this that you get low-class journalism where journalists are trained to trick contributors to their articles or programmes, where content is edited in such a manner that is misleading, and where headlines are created from throwaway remarks or taken completely out of context. A double-page spread in the Sun today accuses the noble Lord, Lord Sugar, here of “blasting” the BBC. The other day, I made the fatal error of giving somebody an interview about enterprise and youngsters, and it resulted in me “blasting” the BBC. Of course, this morning, my telephone was blasting with calls from executives at the BBC—as if they have not got enough to worry about at the moment—asking me what this was all about.
Let us consider a situation where a camera crew has forgotten to switch off a microphone or deliberately left it switched on. This of course happened to the former Prime Minister, Gordon Brown. It was quite natural that he may have had some comments to make privately in the car, but, unbeknown to him, his microphone was still on. This was not proper journalism; this is the sort of thing that needs to be controlled.
Another example is the murder of Jo Yeates in Bristol, where the pressure on journalists was such that they effectively accused her landlord of her murder—he was questioned by police and found not to be guilty—but, nevertheless, they had him hung. That was absolutely diabolical journalism at its worst. The whole Madeleine McCann story is another example where, because of the same pressure to produce something when there was nothing new to report, the press just made stuff up and it all ended up with them having to print front-page apologies. The damage was done and you can never repair that damage.
I hope that the Leveson inquiry not only reaches conclusions about things that have been done but produces some practical recommendations on regulating the media, with provisions that can result in prosecution for people who act illegally and, more to the point, the suspension of high-profile editorial staff—as well as significant fines of a quantum similar to those imposed by, for example, the FSA when a financial services company steps over the line. If necessary, those responsible should be banned from practising their profession in the same way as a lawyer or doctor would be struck off if they had acted improperly.
Lord Grade of Yarmouth
My Lords, I declare an interest as a current, and fairly recent, lay member of the Press Complaints Commission. In the interests of meeting the eight-minute guillotine, I hope that the noble Baroness will take my thanks and congratulations on this debate as read.
I declare my sympathy for Lord Justice Leveson. It is hard to imagine a more difficult task than the one with which he is currently engaged, evidenced by your Lordships’ debate today. Recent events suggest that it is not getting any easier. We have just had two press controversies involving unethically obtained photographs of members of our Royal Family—Prince Harry in Las Vegas and the Duchess of Cambridge in France—which have vividly highlighted the problem of content regulation in a global digital media market. I doubt it has escaped Lord Leveson’s attention that the photographs of the Duchess were published in countries with regulatory regimes offered as possible solutions for the UK. On this evidence, his menu of available options seems to be shrinking.
Publication of the Duchess’s photographs started in France, the country cited as having the model of strict privacy legislation—the same law that was ignored by the French magazine editor, who seemed confident that any resulting court penalty would be comfortably offset by increased circulation. Pictures were then published in the Republic of Ireland, whose system of press regulation is regarded by many as the model for the UK, with an ombudsman recognised by statute—the “statutory underpinning” many commentators and many of your Lordships are seeking for the UK. Photos then appeared in Sweden, where they have the only self-regulatory press council in Europe with the ability to fine publications that transgress. One of the only countries in Europe to operate a statutory press council is Denmark, which even has the power to jail a recalcitrant editor; and the pictures of the Duchess appeared there too. All the while, blogs across America were reproducing the images based on the freedom written into their own constitution.
I say all this not to suggest that any of the systems in other countries are wrong or that their examples should be ignored, but rather to make the point that the issue is a remarkably complicated one, however simplistic some of the rhetoric around it has become. Regulation of the press is a paradox, and a problem that has been around for hundreds of years, not because of a lack of willingness to solve it but because there are no easy answers. However, just because a perfect solution does not exist, that does not mean that we cannot now have a better system. If nothing else, I am hopeful that Lord Leveson’s deliberations will redefine, and then codify in writing for the first time, the role of a new, enhanced, self-regulatory body.
In the usual blame game that follows any controversy in the UK, the old PCC has been accused and found guilty in the court of the commentariat for failing to act in ways that were well outside its remit. It was not set up or resourced as a policeman for the press, to instigate investigations into suspected wrongdoing by the press or proactively to oversee standards. It was set up to offer a free, fair and fast service for those seeking redress from publications for falsehoods, inaccuracies and so on. It has carried out this role, and continues to carry it out, with commendable independent diligence. Some Members of both these Houses of Parliament who have publicly criticised the PCC have themselves enjoyed the benefits of the PCC’s ex-post—and often more important ex-ante—abilities to prevent or correct inaccurate or intrusive stories.
We are all aware, of course, of the genesis of the inquiry: the shameful actions of the News of the World et cetera. Criminal acts were perpetrated and must be punished. I cannot resist asking your Lordships what the old PCC was supposed to have been able to do to prevent phone hacking when the threat of a prison sentence proved an inadequate deterrent. However, that is a matter not for regulation but for law enforcement. Indeed, Lord Leveson himself has acknowledged that the question of criminal behaviour is for the police to examine. His inquiry, thus far, has scarcely illuminated the issue of phone hacking at all.
When Lord Leveson reports, he will be doing the British public interest a great service if he lays out a new and much enhanced written remit for the successor to the PCC, giving it powers and resources to continue its complaints role, investigate proactively and play the lead role in auditing compliance arrangements within individual titles and in naming and shaming where there are deficiencies. I believe that the proposals put forward by the newspaper industry, with some input from the Press Complaints Commission and my noble friend Lord Hunt, will become a valuable part of the solution, subject to some preconditions.
The creation of a new body with a new written remit is necessary, enshrining some principles: it must be independent, and the appointment of all its members, and the chair, must be public and transparent and independent of the press; its funding must be secure and adequate, and there needs to be a commitment that the industry will provide sufficient funds to allow the regulator to do its work; it must have powers to investigate without the trigger of the complaint, and have the mandate, resources and powers of investigation to examine systemic issues as they arise; and it must be wide-reaching. In an online age, universality of regulation is not possible. Ofcom, a statutory body, currently has no powers over broadcasters’ websites, so we cannot envisage that the new system will catch everyone. However, all the major players must see that it is in their own interests to join in and to stay in.
As your Lordships may well know, my experience comes mostly from the world of broadcasting. However, while I applaud the effectiveness of statutory broadcast regulation, I do not endorse it as a model for the press. Broadcasting regulation is a creature of a peculiar circumstance: the ability to exploit spectrum, a national resource that is rightly controlled by government, such that licensing is therefore necessary. Because of the universal distribution of content enjoyed by television, there are statutory requirements of taste and decency, and, of course, impartiality. None of this is true of the press. Rightly for a statutory regulator, it is worth noting that Ofcom has no ex-ante powers to restrain publication, a crucial PCC function.
We do not have long to wait for Lord Leveson’s report. He has the opportunity to produce something that will be so much clearer and more wide-ranging than what has come before. I finish by saying that, meanwhile, we should not forget that it was the journalism of the Guardian newspaper that laid bare the shortcomings of News International and the British press.
Lord Stoneham of Droxford
My Lords, I welcome this debate and agree especially with my noble friend Lord Fowler, who said that we should not pre-empt Lord Leveson. He deserves the respect of our listening to what he has to say and considering his recommendations. There are two principal issues for him to address. I do not think that there is any argument but that we have to strengthen the regulation of press standards. The other question is whether market dominance was a major contributory factor to the problems we have recently experienced.
On the first question, I think it is accepted that we are going to have to strengthen regulation of standards. We also have to recognise that public perception in this is as important as the reality of what we are doing. The question is how to do that while continuing to encourage accessibility and help for the ordinary person in the street who has a genuine grievance; and whether the public will let us build on what we have or whether we have to have a complete transformation by getting it on to a statutory format.
I do not want to spend much time on the second question, of whether market dominance was a factor, but I believe that it did contribute to the problem. An arrogance grew up in part of News International—I saw it because I worked there—that made senior people think that they were untouchable because they had politicians, the establishment and the police in their awe, if not in their pay. In their tabloid titles, no one was worrying about the risks of what they were doing or the consequences when they were finally challenged and found out.
There are some key points that Leveson needs to look at in detail. It is not generally a popular thing to say, although some today are saying it, that the Press Complaints Commission has a list of achievements and has made considerable improvements. It is not right to say that the press ignores it—in fact, huge sections of the press respect it and work with it assiduously. It deals with complaints and has drawn up, over 20 years, a comprehensive, regularly updated code of practice which stands scrutiny—it is what we want. Practically everything is in there, it just needs enforcing and following.
However, the public perception has not caught up with the reality; I accept that. Leveson will obviously have to take things on further, but how? Politicians have failed to deal with the market dominance issue over the past 30 years. It clearly needs an independent process with clear parameters to deal with that. I have to say that the problems in that area do not bode very well for politicians setting up a statutory system. Also, Lord Leveson cannot ignore the ongoing revolution in the industry. There has been a huge decline in print media. There is a convergence of print and all forms of broadcast media, and the growth of social media and blogs means that they, rather than the press or the broadcasters, are often setting the press agenda. Frankly, there is no point introducing heavy-handed regulation of print media when all below are free to ignore it and, as the courts have shown, very difficult to regulate.
What does Leveson need to do? I believe that he needs to build on what we have and strengthen a new Press Complaints Commission. He needs to build on what I think—despite what the noble Baroness, Lady O’Neill, said—is the pretty effective complaints handling system that it has put in place over the past 20 years. The reforms initiated by the noble Lord, Lord Hunt, deserve support. However, standards of behaviour in individual companies need addressing—the point made by the noble Baroness, Lady O’Neill. We need to look at the process; the errors and weaknesses of the PCC in that regard need to be addressed. As we know, it failed on the hacking issue and there was a weakness in our system. In all respects, the successor to the PCC needs to be and to be seen to be independent of the industry in all respects—on appointments and development of the editors’ code—and it must cover everyone. All newspaper companies and the new generation of bloggers must sign up. We cannot have companies simply dropping out of the system when they dislike a particular decision.
The test for what Leveson recommends for regulation is for me as follows. First, he needs to concentrate on how we protect and support the ordinary person in the street—not the rich and famous, with respect to the noble Lord, Lord Sugar. People such as the noble Lord have the resource and advice they need to protect themselves. We need to look at how someone such as Christopher Jefferies, the retired teacher who was pilloried and harassed by the media frenzy of the Bristol murder case, can be helped and protected. We need to look carefully at how the PCC has started to develop its pre-publication support services for people caught in such situations. A flexible, low-cost system will always be better than one dominated by lawyers.
Leveson also has to ensure that every media company is in the system. We must have incentives to join or penalties for not joining. Involvement in the new body may have to be through encouragement, because it provides better protection for those companies in the courts on defamation or public interest cases, cheaper insurance or even tax incentives. The public also accept the need for some sort of sanction. The only thing that I would say is that we have to be careful not to be too severe, because that would drive everybody to the lawyers, slow the process, reduce accessibility and increase costs. When I worked in the media, I always found that a small donation to charity was the best way to resolve disputes. We need to have a culture of that and use larger fines for systemic and repeated breaches.
The successor to the PCC needs to raise its public profile; it needs to be effective and to deliver. It is not good enough if the public perceives that it is simply reacting to the pressure of statutory regulation threats when it comes forward with reforms. It needs to be more proactive and to take over promotion of the profession of journalism, so that it is not seen as just a trade rather than a profession.
The noble Lord, Lord Hunt, ended his witness statement to Leveson by saying:
“This would not be a case of self-regulation being granted one grudging, last chance; it is independent self-regulation being given its first chance. The public interest, for me, is embodied by a free and responsible press—a press that recognises and cherishes the considerable privileges it enjoys, and conducts itself accordingly”.
I agree wholeheartedly with that.
Lord Inglewood
My Lords, I begin my few remarks by joining other speakers who have thanked the noble Baroness, Lady O’Neill, for introducing this debate. I must declare an interest as the chairman of the CN Group, a regional media company based in Cumbria.
As the noble Baroness said in her elegant introduction, I also chair the Select Committee on Communications and, as she said, just before the summer break we debated our report on the future of investigative journalism. I do not propose to go over anything in that document, other than to draw attention to our discussion of the issues thrown up by journalists breaking the law—they contend, in the public interest—and our conclusions, which are very similar to those reached independently by the Director of Public Prosecutions. Indeed, the committee may come back to a number of those issues.
Currently, the committee is working on a report on convergence which, as my noble friends Lord Grade and Lord Stoneham pointed out, will throw up a number of difficult questions of regulation. At this stage, the problem seems to be getting bigger and more difficult, so I shall not add any comments on that at this point.
I have always taken the view that, in general, people are basically decent. Although our ideas and definitions vary, we all want to live in a world and society where, by and large, things are what they seem to be. As for the media, people expect that what is sold to them as news or comment on news is not incompatible with the facts underlying the story and concerns things of significance.
The media, certainly in this country, are not merely private fiefdoms for their paymasters, owners, editors or journalists to promulgate whatever they like. In some way, that is analogous to the expectation that advertisements should have some recognisable relationship with the product being promoted and its attributes. Indeed, in all civilised societies, constraints are placed on individuals’ freedom of action to protect the legitimate and proper interests of other people and to stop them being harmed gratuitously. Because there has been widespread concern about those issues, regulation above and beyond the general law has been introduced to surround the media. After all, the purpose of regulation is to hold the ring and ensure that trust is embedded in the institutions and organisations affected.
The current crisis—for that is what I think it is—has caused the public to believe that regulation in respect of the media, in all its various forms, is not working properly. We must not intellectualise this too much—we must not be too clever about it—because if we try to do that, we miss the fundamental point. I am sure that there is a widespread feeling across the country, regardless of the underlying truth of the details of some of the propositions, that things have gone awry.
As a matter of principle, it is essential that the Government and Parliament—which is different from the Government—are kept as far apart from the detailed regulation of the media as possible. It is one of the consequences and characteristics of the crisis that we are in that both the Government and Parliament are not the subject of widespread trust at present. The problem is compounded when we realise that the press and the media more widely are equally no longer fully trusted. While I believe that we must not overstate the case, there is real scepticism of regulation in whatever form it may come because it is felt variously that on occasions it is less than completely impartial, that it has no real teeth, or both.
It all boils down to a lack of confidence and trust. Whatever the outcome of the current debate and the discontent through which we are going, no amount of changing the regulatory architecture will help by itself, nor will changes in the modus operandi of those engaged in the sector, unless that trust and confidence is restored. Everything boils down to that, and whatever changes come—and changes must come, but let us not forget that there is more than one way of skinning a dead cat—unless that trust is restored, our current nationwide discontent with the media and of the media will remain. I do not believe that to be a healthy state of affairs for a free country since a plural, confident, free but fair media is a defining characteristic of the kind of country we want the United Kingdom to be.
Lord Soley
My Lords, I, too, congratulate the noble Baroness, Lady O’Neill, and I share her view that a free press is a vital ingredient of a free society. A free press is an extension of freedom of speech and freedom of assembly. It is not, and should never have become, a freedom for large corporate organisations to trash the lives of others and—when they chose to do so—to mislead the British public by presenting factual inaccuracies on quite a large scale.
Although it is important that we wait for Leveson, I hope that when the report comes the Government will indicate very quickly that they intend to legislate for a new regulatory system, which I shall come to in a moment. If they do not do so, I will look at bringing forward a Bill of the type that I presented to the House of Commons in 1992. I would make significant changes to that Bill, but the core would stay the same on media standards, to which the noble Baroness, Lady O’Neill, referred. Had that Bill been accepted at the time and become law on those issues of media standards—and I say this to the noble Lord, Lord Wakeham, who, as Chief Whip of the Conservative Government of the time, played such a crucial part in seeing that that Bill did not become law—then the press would not have had such a bad time as it has had in recent years. It is very important to understand that. I say that knowing that I did not get everything right in that Bill, and there is one crucial change I would have made.
We would do well to remember that CP Scott said 90 years ago:
“Comment is free, but facts are sacred”.
If the media could get back to that, then we would go a long way to solving many of the problems. There is a tough choice to be made between state regulation and self-regulation. I do not agree with my noble friend Lord Sugar that we should have licensed journalists, but I also disagree profoundly with the noble Lord, Lord Wakeham. As I said to him back in 1992, just because you have a regulator that is backed up by statute, that does not mean, as he said in his speech, that you have to license journalists. There are other ways of dealing with this, and I will come to them in a moment.
One reason why we want regulation kept out of state control of any kind is that there is a difference, as the noble Lord said earlier, between electronic media and printed media. Print media in this country have always been campaigning media, which means that they pursue political objectives; so the Guardian is seen as left wing and has a left-wing spin—and it is a spin—on its stories, and the Daily Mail has a right-wing spin on its stories. The BBC and ITV do not, although anybody on the left will tell you that they are on the right and anybody on the right will tell you they are on the left—but that is the way it goes. By and large, the campaigning nature of newspapers is an important thing to protect. That does not mean that the BBC and ITV are not capable of doing good investigative journalism with state regulation; they are, and they do. It is clearly not an either/or. It is more subtle than that.
I would favour a non-statutory body, but a non-statutory body has to have real teeth. That is what I want to say a little about. An independent Press Complaints Commission has to be independent of the media. I found nothing more offensive in the old Press Complaints Commission than the fact that the code of conduct was drawn up by an editor—largely by Paul Dacre, the editor of the Daily Mail at the time. The fatal flaw in that is that they tended to write something with let-out clauses. I think it was the noble Lord, Lord Stoneham, who said that the Press Complaints Commission’s code is good. It is not; it is bad. If you read it as a straightforward thing, it seems right. It says all the right things about not invading privacy unnecessarily and so on, but it has big get-out clauses. One of those says, quite simply, that it is all right to print anything if it is in the public interest to do so. That overrides all the other things and conditions. The press can say, “It is in the public interest, so we’ll do it”. There are other clauses where, had I more time, I could point out how cleverly worded they are. They allow a big let-out from the PCC.
Any regulation should not include pre-publication censorship. In a way, that is one of the core points. Do not put in pre-publication censorship: pre-publication censorship of a story would inhibit the freedom of journalists and editors. However, the other side of that is that they must take responsibility for what they do, whether in the court or in front of the regulatory body. That is what I mean when I talk about the freedom and responsibility of the press. There should be a conciliation service, but it should be backed up by some help for those people who complain. Those who need help are not people like me or people in powerful positions. They are small people who need someone to take their case for them, and possibly take it to court. The regulatory body should be funded like other regulatory bodies—I shall not go into that now because it is a long issue—and it should also have, and I agree with the noble Lord, Lord Grade, here, the power to call for evidence and witnesses and be able to assert that power.
Let me deal with what happens in the case of a breach. Again, I disagree profoundly with the noble Lord, Lord Wakeham, on this. There are a number of ways of dealing with a newspaper group or person who does not follow the PCC code or join the PCC. I shall give two simple examples in view of the limited time. If an organisation refuses to join the new independent body, one of the things you can do is say that its right to have the VAT exemption on newsprint is lost. That is a helpful fact. The other thing you can do—and you can do both these things—is allow the courts to recognise that a newspaper that is a member of the PCC and has shown a good record in its general observance of the PCC code will get a reduced sentence when it breaches, but one that is not and has not would receive a heavier fine if it breached the code. There are a number of ways to punish the newspaper if it tries to avoid the code.
Bear in mind that, by and large, although there are obviously very big exceptions to this, and clearly Jimmy Savile is one, people’s sexual lives should not be on the front pages of newspapers. Most sex stories are run because they sell newspapers. Newspapers’ hypocrisy is enormous. I always made it very clear that I would feel much more confident in defending the right of newspaper editors to protect privacy if I had seen photographs of, for example, their wives sunbathing semi-naked in a private setting, but you never see that and you never hear about their private lives. You only hear about the private lives of others, although there are one or two exceptions to that. The public interest is to have some form of regulation backed up by statutory powers, which must provide the new regulatory body—not unlike the Advertising Standards Authority—with the ability to take a case to court. Those are the ways forward.
My final point is about the coverage of politics. I disagree again with my noble friend Lord Puttnam. I think he was very naive in the Power report about the relationship between politics and the press. It is a very important relationship that needs to be protected, but it is being abused, as he rightly says. The reality is that politicians need the press, and vice versa. The way in which we use that is important, but it ought to be publicly open, and there also ought to be some controls on it too, not least in announcing the relationship between the press and politicians at times. Remember, though, at times stories would not run if you did not have a relationship between the elected politicians and the press.
Lord Black of Brentwood
My Lords, I declare an interest in this debate as a director of the Telegraph Media Group and chairman of the Press Standards Board of Finance, and draw attention to my other media interests in the register. I join other noble Lords in our gratitude to the noble Baroness, Lady O’Neill.
Over the past few years, the media have been subject to the most unprecedented scrutiny. We have had the criminal investigations into phone hacking and payments to public officials. This has been the biggest police operation in British criminal history, bigger even than the investigation into Lockerbie. At its height it has had over 170 police officers involved, conducting dawn raids on the homes of journalists, which, if they had taken place in Zimbabwe, we would rightly have condemned.
We have had at least six parliamentary inquiries scrutinising every detail of this subject. None of them has recommended statutory controls of the press. Then, of course, we have had the Leveson inquiry, which has deployed powers of investigation even more sweeping than those granted to the Chilcot inquiry into the origins of an illegal war. It has cost £5.6 million, taken evidence from 474 witnesses and the record of its hearings runs to 3.2 million words. No industry in modern times has endured such in-depth, microscopic scrutiny.
In passing, I regret that in this maelstrom of inquiries two key issues have largely been overlooked. The first is the absence from the debate of the one thing that is changing the face of the media more than anything else and will have a far longer-term impact on the culture, practices and ethics of the press than any other factor: the internet. The second is the international perspective—namely, how what happens here in the UK will be magnified around the world. A little more of that later.
I am not an apologist for the past nor for some of the terrible things that we have heard about and the abuses that have taken place. My concern today is not so much history as the future. Change, as we have heard, is coming; a new regulatory system is to be put in place. Tougher controls are needed to protect the public. The key question, though, is what kind of change will raise standards and protect the public’s right to know. The answer, in my view, is a stark choice. Here I am afraid I disagree with my noble friend Lord Fowler. That choice is: do we want state regulation of the press or a free, independent press? We should be clear at the outset that this is a binary choice—there is no easy middle way. We either have self-regulation, rooted in the industry but independent of it, or we have some form of state regulation. You can dress it up as “underpinning” or “recognition”, but at the end of the day they amount to the same thing.
Here is the reality of that choice, going forward. On the one hand we have a model for self-regulation pioneered by my noble friend Lord Hunt and worked up in co-operation with him by editors and publishers. It is a proposal for an entirely new system of tough, independent and durable regulation. It would be a radical departure from the past. For the first time, it would be buttressed by law—not statute law, which would be so damaging to free speech, but civil law. It would have real powers of investigation of the sort that we have heard demands for today, and of sanction to deal with breakdowns in standards, including fines against newspapers of up to £l million. It would provide speedy redress for complainants. For the first time, it would have guarantees of structural independence from the industry. Above all, it would bring about a renaissance in internal governance within publishers because of a new system of certification, which would have a real impact on standards. I assure the noble Lord, Lord Janvrin, that kitemarks and certification would be a key part of this system. I also assure my noble friend Lord Stoneham that many of the very sensible requirements that he pointed to in a new regulatory system would be met by my noble friend’s proposals. This system would be deliverable swiftly, without the need for legislative intervention. Even if there were no legal challenge to some form of statutory-based system, it would probably take three years to set up. If we got a green light, the industry could have this up and running in three months.
The other option, on the other hand, is a statutory one. That brings with it huge implications for our democracy. The Lord Chief Justice said recently that,
“the independence of the press is a constitutional necessity”.
Indeed—all other freedoms depend on it. However, the press cannot be independent if politicians are involved in regulating it in some way, no matter how slight or how tiny—no matter how much of a dab of statute there was in regulating it. Statutory controls, however small, would produce what Professor Tim Luckhurst in a pamphlet today describes as a “constitutional absurdity”:
“parliamentary scrutiny of a body the electorate depends upon to scrutinise parliament”.
The imposition of statute would not simply be a constitutional abomination, striking at the heart of the thousands of newspapers and magazines in the UK whose voice was never heard at Leveson, and which bear no responsibility for the problems that gave rise to it. More importantly, it would be totally unworkable. It would certainly require a form of licensing to make it operate, as my noble friend Lord Wakeham said—not licensing of journalists, as the noble Lord, Lord Soley, suggested, but the licensing of publications and publishers. And I am afraid that the noble Lord’s alternative of some form of VAT exemption has already been ruled out by the European Commission.
It would be impossible to define the “newspaper industry” in a digital age. It would drive many successful online publishers abroad, ironically meaning that the coverage of a statutory system would be much smaller than a self-regulatory one. It would be unstable, subject to constant legal challenge, and it would be of little use to members of the public. As my noble friend Lord Wakeham said, statutory complaints systems are slow and legalistic.
Embarking on such a massive constitutional change and introducing even the tiniest political interference into the press would require overwhelming evidence of need. In my view, none has been presented. It is therefore little surprise to me that a Joint Committee of Parliament, of which I and the noble Lord, Lord Janvrin, were members, concluded:
“we do not recommend statutory backing for the new regulator”.
I mentioned just now the impact of decisions about press regulation beyond our shores. We have responsibilities there too; this is not just a domestic issue. The UK has been blessed with three centuries of press freedom but many around the world do not have that luxury. This is an area that this House should care deeply about. Across the world, freedom and self-regulation are on the march. In Sri Lanka, Botswana, Swaziland, South Africa, Tanzania and Zambia, real progress has been made in recent years in dismantling state controls. Those new-found freedoms are fragile, though, and an ill wind from the UK would easily hand the initiative back to those who wish to control the press, a point made to the Leveson inquiry by the World Press Freedom Committee.
Rushing to embrace statute in response to events that were above all the result of a failure of law would place us in great danger. It is playing with fire. At risk are not just the personal freedoms of the British public, which depend on a free press, but also the future of many countries in the world that look to us for an example. I began by saying that change is coming—radical change. The proposal for a new self-regulatory regime will create here the toughest system of press regulation anywhere in the free world. Let us grasp that opportunity for change, rooted in the constitutional necessity of an independent press that is the guarantor of all our freedoms, and let us get on with it.
Baroness Uddin
My Lords, I add my thanks to the noble Baroness, Lady O’Neill, for bringing this debate to the House. Since the events of 9/11 and 7/7, media attention on Muslims and the Muslim community has dramatically increased. Studies conducted by Cardiff University media school, among others, and commissioned by Channel 4 analysed some 974 stories and found that approximately two-thirds of all “news hooks” for stories about Muslims either involved terrorism, religious issues such as Sharia law, women in the context of forced marriage and highlighting the cultural differences between British Muslims and others or were simply about so-called Muslim extremism. These stories all portrayed Muslims as a source of conflict, emphasising differences. By contrast, however, only about 5 per cent of stories were based on problems faced by British Muslims, and only on very rare occasions was there a mention of anything inclusive or positive.
Noble Lords will be familiar with sociologists’ thinking on how media impact on society. They refer to the two concepts of “agenda setting” and “framing”. “Agenda setting” refers to ways in which the media, through an emphasis on some issues and not others, help to shape particular concerns of our time. “Framing” contextualises it so that society can make sense of that issue. Take immigration as an example. For decades now, the media have framed this issue in terms of colour and threat rather than the desperate demand for labour required in post-war Britain. This has successfully led to immigration being looked at as an alien concept and immigrants as aliens.
Similarly, the agenda set by the British media has been distinctly anti-Muslim. One study found that terrorism was the dominant issue in headlines referring to minorities. When the text of the reports was analysed, terrorism was the second most frequent issue, with immigration being the first. Where Muslims were referred to in the texts, the report showed that they were overwhelmingly referred to in relation to terrorism. In the few cases where Muslims were given a direct voice as speakers in the story, the majority were associated with terrorism.
Clearly, then, there is a disconcerting amount of evidence which indicates the partisan and partial way in which Muslims and Islam are represented in the British media. The consequence of this anti-Muslim agenda set by the media is a framing process which sees a war between “us” and “them”. “Us”, according to the media, happen to be harmless individuals who are being taken advantage of by “them”, who are a burden on the state, agents who corrupt or pollute our culture, or criminals and terrorists who are a threat to our society, our security and way of life.
The British media profess tolerance but the daily news coverage and comment columns demonstrate just how conditional that tolerance is, and they promote a regard for Muslims not as citizens with equal rights and varying views but as visitors in “our” country. Such is the demonisation process that media stories are deliberately manipulated to attack Muslims. We know that these attacks impact significantly on all aspects of their lives including—and this is deeply troubling—employability.
Many noble Lords may be aware of the Department for Work and Pensions study conducted a few years ago, which brutally illustrated the highest discrimination that exists against those with Muslim-sounding names. Take one newspaper which splashed a front-page story in 2006 which described a “Muslim hate mob” vandalising a house near Windsor and leaving an obscene message on the drive. According to the paper, the house was due to be rented by British soldiers returning from a tour of Afghanistan. An MP was quoted in the article as saying:
“If there’s anybody who should f*** off”—
I apologise to the House—
“it’s the Muslims who are doing this kind of thing”.
It may come as no surprise to your Lordships’ House to learn that there were no Muslims involved in the story. The house was in an affluent area and anonymous callers had objected to the arrival of the soldiers as it might lower house prices.
Such headlines and stories are legion. It would make depressing listening if I recited any number of them. They are a shameful illustration of the worst kind of press reporting, where a particular section of the community is targeted. But why should the media adopt this approach? Why do we not hear about the Ministry of Justice statistic that 2.3 million “show and account” powers were used? There are twice as many stop-and-searches of Asian people per head of population compared to others. Further, there are 37,000 racially and religiously aggravated offences recorded by the police which are hardly reported. Well, we now know through submissions made to the Leveson inquiry how closely sections of the media work collaboratively with law enforcers, politicians and government. We have since come to learn and understand that individuals and organisations do not operate in a vacuum under these circumstances. They are influenced and guided by the political and accepted norms of the culture around them. It must be obvious to many of us that media coverage of Muslims and Islam is far from being of the proper standard we should and must expect from our media.
Many I have spoken to, young and old, men and women, professional and housebound, believe that the response to 9/11 and 7/7 by leaders in the US and UK, and the ensuing reporting in our media, have inexorably led to a rise in anti-Muslim feelings in our society which has, in a number of high-profile cases, been recognised as institutionalised discrimination. The consequences are significant. I can detail many examples of institutional discrimination which are faced by British Muslims in terms of education, the criminal justice system and, simply by having a Muslim name, their prospect of employability.
It must therefore be said that the state and its institutions must bear some responsibility. Through its pronouncements, declarations, laws and edicts, it sets the tone and tenor of this progressively corrosive climate in society, of which the press is a part, where Muslims and Islam are the fifth column. The Leveson inquiry has given us a unique opportunity to redress what has been a systematic demonisation and criminalisation of a community. We must hope in the next few weeks, when Lord Justice Leveson reports, that his inquiry has taken heed of the seriousness of the evidence provided in this regard by an assortment of witnesses including former tabloid and broadsheet reporters.
Nothing should hold back the ability of the press to hold government and public officials to account. Equally, there must be something to allow ordinary citizens, including affected communities, to hold the press to account. Lord Justice Leveson needs to recognise the hurt caused to our communities and the anger within them, and to make recommendations which allow all citizens, regardless of their origin, culture or faith, to live without fear.
Viscount Eccles
My Lords, I need to be forgiven for not directly following the noble Baroness, Lady Uddin. I will start with something of a challenge. There has been quite a lot of talk about independence, and independence of statutory arrangements. We will be debating these matters further, and I shall be looking for examples of true independence where there is statutory regulation. I do not quite see, where Parliament is sovereign, that you can ever arrive at what I would describe as independence.
When thinking about media standards, I want to follow much of what my noble friend Lord Stoneham said, and concentrate upon those who are the subject of human interest stories and did not expect or wish to be caught up in media attention and become news. They may on many occasions—there is plenty of evidence for this—find it difficult to cope with the questioning, cameras, offers of advice, talk about money and everything that goes with a long-running human interest story, and even with less important stories.
There seem to me to be two questions to ask about these stories. How accurate are the facts which come across in the telling of these stories? Are the conclusions reached interim conclusions or final conclusions and are they believed by the writers to be true? I have two tests from long ago; I do not believe that there was a golden age when everybody behaved incredibly responsibly. One was the story of a Catholic priest. I was probably 17 at the time. He told us that he had been caught up in the Underground when there had been an accident in the late 1940s. There were injuries and, as I remember it, there were deaths as well. He went down into the Underground and did his job as a Catholic priest. He came up after a considerable period of time, pretty shattered, to be greeted by the cameras and the questioners who had not been allowed down into the Underground. In his exasperation, he said, “My God, mind your own business”. The next day his picture appeared in the newspaper and the caption below was, “I am here on God’s business”.
The second story concerned Beaverbrook. You have to be quite old to remember much about Beaverbrook. I think that it was the “Beachcomber column” which hounded—I do not think that that is too strong a word—my father. It was a gossip column, which came to no conclusions because it wanted the public to come to their own conclusions. However, the gossip was handled, with scant regard to the facts, in such a way as to try to make sure that the public thought, “Well, this is a man not to follow. This is a man with views that cannot be right because look what sort of a person he is”.
Therefore, I start with a scepticism about the press and great caution. Subsequently, in pretty mundane appearances of things close to what I was doing, just occasionally I have been reinforced in these views. In a small headline, I was described as a civil servant. Never mind what the article said, but it would have taken about two minutes, or possibly five, for the sub-editor—it was in a headline—to check whether I was a civil servant. Of course, I was not. Over that period, I would give the press about six out of 10, which is possibly generous, for the accuracy of the facts.
What about the truth of the conclusions? I do not think that the press is much interested in the truth of the conclusions because the story dominates. Its test is not what is in the public interest but what interests the public, which I think has always been the case. Probably, it was exactly the same in 1800 as regards the satirists and the broadsheets on the high street.
In facing up to this reality, what is to be sensibly done? The first thing that we should remember is not to underrate the public, who have a healthy scepticism. There perhaps is a tendency—we fall to this temptation in your Lordships’ House—to think that others do not keep up as well as we do ourselves, which is probably a mistake. I also think that we should remember that we all love a drama, to be excited and to have something which has been built into a story that we would like to read. Perhaps we get the media that we deserve.
Much has been said about Leveson. I believe that the most brilliant evidence was that given by Matthew Parris. I commend it to noble Lords and hope that they will read it among all the other millions of words. There was a disenchantment in that evidence as regards the reality and the acceptance. He suggests that phone hacking is only the logical consequence of double mirrors, impersonation and long-range lenses.
Statutory legislation will not work. As has been correctly said, it is slow and process is more important than outcome. Perverse incentives come in. If I am subject to rules and I am very clever, I may think, “You’ve set the rules; now I am going to see how I can get round them”. That is what happens always and everywhere with statutory regulation. Again, I challenge people to find a system of statutory regulation where that does not happen. Better would be the common sense of the people; a shake-up of the PCC; peer-group pressure; establishment of the things that we do and do not do; and some internal system of penalising those. The idea of civil law contracts is very good. That would serve us better than legislating for statutory regulation.
Lord Stevenson of Balmacara
My Lords, I should like to add my thanks to the noble Baroness, Lady O’Neill, for securing this timely debate and to congratulate her on her new role as chair of the EHRC, which she joins at interesting times. The noble Baroness laid out the issue with her customary clarity and set the standard for this excellent debate. I should also like to pick up on the points made by the noble Lord, Lord Janvrin, who helped us to focus on the key issues which have underpinned so many of the speeches that we have heard. What exactly is the problem? Why is the status quo unacceptable? How should we, if we decide to do so, resolve matters going forward?
I think that it is common ground in this debate that it is in the public interest to have a free press, which, as many noble Lords have said, is fundamental to our society and to our democracy. However, we have to balance that against the fact that at the moment print journalism as we have known it for so many years is under intense pressure. I am afraid that it is no longer about revealing matters. To use the phrase used by the noble Lord, Lord Fowler, it is no longer about breaking the news because this comes to us in so many different forms, particularly from Twitter and the blogosphere. It is no longer sustainable as a business because the advertising that has supported it has moved to the internet or is moving that way.
Finally, there are few media barons who are willing to pay the losses in return for the influence that they might gain from supporting print journalism as they have in the past. All those factors taken together have contributed to an unacceptable culture and a practice to which many noble Lords have referred today and which I am sure will continue to be in our thoughts as we move towards the Leveson report.
Several noble Lords, particularly my noble friend Lord Puttnam, mentioned that the consequence of all this was a loss of confidence and trust, especially among the public. In some of the lobbying that was sent around in advance of this debate, it was interesting to read that some 75% of voters favour regulation that is independent of the newspaper industry. We should perhaps listen to that voice.
Why is the status quo unacceptable? As my noble friend Lord Puttnam said, this crisis seems to be different from all the others that we have been hearing about. This seems to be systemic and the ecosystem itself may be collapsing. Two deep-seated problems have led to abuses such as the phone hacking and invasion of privacy suffered by the Dowlers, the McCanns and others, which led to the establishment of the Leveson inquiry, as well as the concentration of media ownership and an inadequate system of press complaints.
We need to think again about definitions of media. The internet, particularly the growth of self publication, is a game changer. Nevertheless, it is important not to have monopolies of ownership in our media. A monopoly generally inhibits a diversity of views, competition and new entrants to the market. It is bad for our democracy and bad for consumers. Increasingly, we have to look at cross-media ownership and ownership across different media platforms. Labour’s evidence to the Leveson inquiry suggested that there could be a percentage cap on the media market for a single organisation not owning more than 30%.
On press complaints, Labour supports a strong and free press that can hold politicians to account, which is essential in a democracy. But a strong and free press must have responsibilities too. The Press Complaints Commission has failed victims of press abuse, and it was a system appointed by the press, financed by the press and run by the press for the press. Any new system for press complaints needs to be independent of politicians but also of serving editors and proprietors. It must be accessible, straightforward for anyone to use and not just for the rich. It must apply to all newspapers and be able to enforce its rulings against them.
What needs to be done? The noble Baroness, Lady O’Neill, said that even if the evidence of failure by the recent history of self-regulation was not overwhelming, the burden of proof that self-regulation can work lies with the proponents. We have heard powerful arguments from the noble Lords, Lord Wakeham, Lord Grade and Lord Black, although not, sadly, from the noble Lord, Lord Hunt, who is carefully scribbling away but not speaking.
Lord Hunt of Wirral
As the noble Lord has raised the point, perhaps I may assist. It is very important that I of all people who has put forward a model should not be seen in any way to pre-empt the decision of Lord Justice Leveson.
Lord Stevenson of Balmacara
I thank the noble Lord for that gracious intervention.
I think that the arguments are not very strong and I wonder whether the noble Lords protest too much. I do not think that the test set by the noble Baroness, Lady O’Neill, would have been satisfied. Politicians have a habit of setting up false questions and then giving the answers that they want; so I profoundly disagree that this is a binary choice. It is not a question of self-regulation or some sort of draconian statutory regulation. As we have heard, most other professions, including judges, are regulated and there do not seem to be so many problems there. It is unhealthy for any industry to be its own judge and jury; it is all the more unhealthy for the press, which has the power and has used that power in recent times, to cover up its own wrongdoings by failing to report it. Any successful system should include the following: independence from proprietors and editors; independence from other interests, including government; the ability to provide effective and speedy redress; the ability to investigate when things go wrong; the ability to impose sanctions, including a must-carry-apology-and-corrections power; the ability to compel membership; and a regular submission to external inspection.
We may be able to learn from—but we do not need to follow—other models, such as the Irish press council, as mentioned by the noble Lord, Lord Grade, which is recognised by statute but not set up by statute, or the new Australian body, which is an independent statutory body constituted through independent appointments procedures whose constitutional role is defined as “enforced self-regulation”.
A new law introducing effective regulation could contain safeguards against political abuse and guarantees of independence from politicians. Effective regulation does not prevent solicitors or doctors doing their jobs, nor would it prevent journalists from doing theirs. The press has great power, and with great power goes greater responsibility.
Journalism in the broadcast media is subject to regulation backed by statute. It is the most trusted in the country and very clearly free from political influence. Journalism is already subject to statute in relation to defamation, data protection, contempt of court and human rights, not to mention tax, without that meaning political control. Effective regulation would surely benefit and protect journalists in their work, as it would bear down on the practices of the culture that gave us hacking, blagging, serial libelling and bullying. It would protect the public and begin the work of restoring public confidence in the press.
Viscount Younger of Leckie
My Lords, first, I take this opportunity to thank the noble Baroness, Lady O’Neill, for tabling this debate and drawing attention to this most important issue, and at such a significant moment, as we await Lord Justice Leveson’s findings on his inquiry into the culture, practices and ethics of the press. I also take this opportunity to congratulate the noble Baroness on her recent appointment as chair of the Equality and Human Rights Commission, and I am sure that it will flourish under her leadership. The noble Baroness is of course a most respected contributor to this debate, tackling the issue of press and media freedom a decade ago as part of her 2002 Reith lecture series, “A Question of Trust” and more recently in contributions including her 2011 Reuters memorial lecture, “The Rights of Journalism and the Needs of Audiences”, and a development of that argument which she presented earlier this year in evidence to the Leveson inquiry.
In terms of the Leveson inquiry itself, it will be of little surprise to your Lordships that it would not be appropriate for the Government to prejudge its findings by speculating here about what it may contain, or indicating any sense of preference for the recommendations. But that does not stop this Chamber from debating the issues that will need addressing once Lord Justice Leveson has reported. It is important to state very clearly that, come what may, the Government recognise the fundamental importance of freedom of speech and a vigorous press to support this as part of the democratic process. The press plays an essential role in holding the powerful to account; it brings matters of public interest to the fore, informing citizens, and enabling them to exercise their democratic rights. Of course, it also entertains and educates them. As the noble Baroness, Lady O’Neill, states, it secures the communication on which social, cultural and political life depend. Whatever steps are taken, it is vital that we maintain a press that is free to conduct this important role in our society. My noble friend Lord Black highlights the important point that Great Britain is a beacon in the Commonwealth, and indeed the world, for setting the bar high for press freedom.
The Government set up the Leveson inquiry last year in response to the phone-hacking scandal, culminating in the news that Milly Dowler’s phone had been hacked by the News of the World. The Government are determined to get to the bottom of all that journalists and their agents were doing in hacking into phone messages, what the police knew when, what they did about it, and how we might learn lessons for the future. But it is important to remember that phone-hacking is illegal; regulatory reform should not therefore be about creating a system that prevents illegal behaviour, as that remains a matter for the courts. What it must do, however, is tackle the culture and practices that provided the context in which that illegal behaviour became widespread. In doing so, we need to separate out actions that were, and which remain, illegal and subject to the criminal law from those which are issues of culture and operational standards, though the two are linked. I agree with my noble friend Lord Fowler that the Leveson inquiry is proving to be thorough, full and detailed.
It is important that going forward the regulatory framework for the press is effective, ensuring that the systematic failings as evidenced through the inquiry are not repeated, as my noble friend Lord Razzall iterated in strong terms. When he set up the inquiry, the Prime Minister said that he wanted to aim for independent regulation of the press. That remains the Government’s ambition and, as the Prime Minister has recently said, we must be able to look the Dowler family in the eye with any future solution.
In considering these issues, the noble Baroness’s work gives us some very useful tools which help us to frame the debate. She asks us to take a step back, to consider what role we expect of the media in society more generally; what we mean by media freedom; and importantly, where the corresponding balance may lie between its freedom and its responsibility towards the public it serves. The noble Baroness also articulates the importance of understanding first what we are trying to regulate—that is, the standards—before it is possible to understand or debate what may be an appropriate form of regulation to uphold these. As she points out, there is a crucial distinction between regulating media processes and attempting to control media content, or the difference between the how and the what. Let us be clear, the Government agree with her that we must not stray into the regulation of content itself, beyond the application of the general rule of law as it already applies today. The noble Lord, Lord Janvrin, also made that important point. By articulating media process as the focus of regulation, therefore, it is possible to distinguish very clearly where we should engage in debate in order to assess whether regulatory solutions are likely to encroach upon media freedoms.
The noble Baroness, Lady O’Neill, goes on to state that media standards as currently formulated are not sufficient. She argues there are three essential ingredients needed to ensure the public are presented with accessible, intelligible and assessable information through the media. It is the last point, the assessability of information presented to the public by the media, that she feels is least well served, as she has highlighted so eloquently today.
I turn now to a number of observations from noble Lords who have spoken. First, my noble friend Lord Eccles rightly focused on the human interest stories, when individuals are caught up unwittingly in a media storm. I agree with him that they have a particular right of protection—but, as he pointed out, without statutory regulation.
My noble friend Lord Stoneham pointed out in detailed terms the importance of looking at market dominance. I can confirm that Lord Justice Leveson is looking at media ownership and plurality—and there is hope that he will comment on that when he reports.
The noble Lord, Lord Janvrin, made a strong point about having a stronger and more effective code of conduct. I agree with that, and I have noted it. This particular code of conduct has of course to be accepted and respected by all stakeholders.
The noble Lord, Lord Sugar, made the point that there has never been such a demand for stories. He said that these stories are produced so quickly, to keep the media going, that media standards are lowered. Certainly that is something that needs to be looked at in terms of media process. It comes back to the lack of assessability.
Several comments were made about the internet and convergence. My noble friends Lord Inglewood and Lord Black spoke on that subject, making some powerful points, along with my noble friend Lord Wakeham and the noble Lord, Lord Janvrin, about the increasing power of the internet and the power of media contact and stories that can be experienced across a wide variety of platforms, from print to online publishing to TV, video, smart phones and tablets. In other words, it has become an extremely complex landscape. Stories can go viral and almost immediately they are global, so there are very important issues around convergence. These will be considered by the Government in their communications review. As your Lordships will know, a White Paper will come out in the new year. Surely responsibility for process must ultimately lie with the originator. Only the originator of a story can answer for that, as the noble Lord, Lord Puttnam, pointed out.
I note from following the inquiry that Lord Justice Leveson has received a range of proposals for future press regulation. I felt it was easiest to present these by placing them on a continuum or a sliding scale. These proposals ranged from at the one end a continued form of self-regulation through to a fully fledged statutory approach at the other. However, I note that today no speaker has focused on the regulation side in great depth.
I would like to pick up a number of comments that were made about self-regulation and the degrees of self-regulation that we hope are being considered. The noble Lord, Lord Black, referred to the work that my noble friend Lord Hunt has done in making some proposals and, indeed, pioneering a form of self-regulation that they believe will be a way forward. It is a form of self-regulation backed by contracts between the press and the regulator. As my noble friend Lord Black pointed out, that regulation would essentially be buttressed by civil law and would not be statutory. It would have real powers of investigation and sanctions to deal with breakdowns. My noble friend Lord Black mentioned that fines of up to seven figures would be possible. However, such fines would need to be proportionate to the size of the media involved. Then the question arises of why a publication would sign up to this. Let us presuppose that publications signed such a contract. We assume that this would be a rolling five-year contract. In essence, if any publication decided to pull out, that would be a breach of contract and penalties would be involved. Let us assume that those penalties would be strong enough to prevent them so doing.
A number of incentives to join such a scheme are being considered, as has been mentioned by noble Lords today. They include legal incentives: for example, partial defence in defamation cases, as in the Irish cases, and a defence can be claimed by members of a regulator. In addition, there would be a cap on damages in civil court cases as an incentive to join and a delay in court proceedings to allow complaints to be followed up. The noble Lord, Lord Soley, mentioned a financial incentive. Publications that signed up to the scheme would be subject to a zero rate of VAT.
Kitemark schemes have been mentioned. I believe this is an interesting way forward in that publications that did join up would in effect be accredited and would have a kitemark attached to them, which would give them a great deal of credibility. This was mentioned by the noble Lord, Lord Janvrin. The noble Lord, Lord Soley, was very helpful in highlighting these incentives.
Taking a further step along the sliding scale, the introduction of an underpinning statute was suggested. This option would still see the continuation of self-regulation in day-to-day practice, but with the provision of backstop powers for use in the event that it was failing. Put forward by the Media Standards Trust among others, this option would provide additional teeth and involve creating a small body which would oversee the regulator or regulators. Such a body would be able to intervene if certain agreed standards were not met by the regulator, adding a further layer of accountability to the system and a safeguard if the regulator was not performing as it should.
Returning to the arguments made by the noble Baroness in opening this debate, I note that, having established that regulation should be limited to media process, she argued that an element of statutory underpinning is now needed to place it on an effective footing. While any system needs to safeguard media freedom, the distinctions made by the noble Baroness today are helpful in focusing the debate more specifically on the question we must all consider: the extent to which the freedom to publish would be impacted by underpinning the regulation of some aspects of press processes. If such a course were taken, we would need to think very carefully and safeguards would need to be put in place. I note the passionate argument of my noble friend Lord Black of Brentwood against state intervention, particularly that any use of statute risks sliding down a slippery slope. However, I think it is helpful to be clear that regulating process may not be the same as regulating content if it came to a form of statutory underpinning.
The outcome of any new system must be to give the public confidence that the press is operating responsibly and that all complaints will be transparently and fairly handled, while allowing the press to remain free to continue pursuing world-class journalism. The key question must be: what constitutes the most effective way of achieving these ends? They would be achieved by a system that is appropriately independent of the press, government and politicians, is accountable, has teeth and is capable of delivering access to fair, cheap, quick and reliable justice for victims, which is what everyone has called for during the Leveson inquiry.
As the Prime Minister has recently commented:
“We don’t want heavy-handed state intervention”.
However, he added:
“The status quo is not an option”.
Baroness O'Neill of Bengarve
My Lords, I am grateful to all noble Lords who have taken part in the debate. There cannot be any of us who has not learnt a great deal. I particularly wish to thank the Minister for the care with which he has followed my lines of argument. It is rare to find at the Dispatch Box such a detailed grasp of the various lines of argument that are put forward round the House and I appreciate that very much.
As we listened to positions that challenged each of us in various ways, it occurred to me that we have to be very careful about our future use of the term “independent”. Surely what we want are independent media. Sometimes I felt that the adjective was sliding to and fro between the media and the regulation. There are many different forms of regulation. I would be extremely critical of—what shall we call it?—a full waterfront mode of regulation for the media. I do not think that it could serve its purpose. As I suggested, I would be highly appreciative of a complaints service that really served the needs of the public in a way that at its best the Press Complaints Commission has succeeded in doing. However, one has to say that often it has not left members of the public feeling that their complaint was heard or that the corrections had an adequate prominence to constitute any sort of reparation.
There is a long way to go. We wait for Lord Justice Leveson to give us the next chapter, but I am sure that we will be back debating these things in the not-too-distant future. When we do, I hope that we can, as it were, put on one side the thought that there is one position that owns the label “independent regulation”. As I suggested, self-regulation does not automatically count as independent regulation. It is too often and too readily a form of self-serving regulation. But, equally, we can all of us imagine forms of statutory regulation which would probably kill the goose as they sought to protect it. I believe that statutory regulation will in the end be needed but only on a very narrow front to enable independent bodies to have the necessary powers. The thought that it can be done by the civil law is, of course, highly attractive but you have to contract in at the beginning, and there is the rub. Not everybody will wish to contract in at the beginning. Therefore, departing will carry no sanctions for them and we will have perhaps a small, high-quality press that has contracted in and others who see that there is profit and advantage in remaining an outlaw. Therefore, we have not solved the problem. We did not expect to do so this morning, but I do not regret having this debate at this time. I thank everybody who has contributed.