Press Regulation (Communications Committee Report)

Lord Best Excerpts

Tuesday 20th December 2016 Lords Chamber

Moved by

[Lord Best]

That this House takes note of the Report from the Communications Committee Press Regulation: where are we now? (3rd Report, Session 2014–15, HL Paper 135).

[Lord Best (CB)]

My Lords, it is a pleasure to introduce this debate on press regulation, which flows from a report on this theme from your Lordships’ Select Committee on Communications, which I have the honour to chair.

I am very grateful to noble Lords who are here to participate in this debate. I also place on the record my appreciation to the members of the committee, who work in an exemplary cross-party spirit to great effect. On their behalf I thank our clerks Anna Murphy and Nicole Mason, who did invaluable work at the time of this report, and Theo Pembroke, who has succeeded Anna, and our ever-helpful policy analyst, Helena Peacock.

Our report, Press Regulation: Where Are We Now?, came out back in March 2015. However, the committee has revisited the subject over recent weeks, and I will endeavour to share with your Lordships our understanding of the current state of play. Neither our original inquiry nor our latest investigation has sought to review the rights and wrongs of the Leveson report or the subsequent arrangements approved by all the political parties. We have seen our role as trying to clarify where things stand using the unique opportunities open to a Select Committee to quiz the key participants. Twenty months ago, we concluded that the picture was confusing for the public and uncertain for the press. I have to say that the picture today remains one of confusion and uncertainty. Let me recap.

Following the hacking scandals and criminal behaviour by the press uncovered in 2011, the Leveson inquiry was established. It reported in November 2012, and Lord Justice Leveson said:

“There have been too many times when, chasing the story, parts of the press have acted as if its own code, which it wrote, simply did not exist. This has caused real hardship and, on occasion, wreaked havoc with the lives of innocent people whose rights and liberties have been disdained”.

Lord Justice Leveson’s report sought to come up with a system of press regulation that would be acceptable to the public as sufficiently robust to protect the individual citizen, and acceptable to the industry in maintaining the freedom of the press from undue state interference. In the event, after lengthy negotiations between politicians, the press and others—including Hacked Off, the body representing hacking victims—the mechanism of a royal charter, not mentioned by Leveson, was agreed as a compromise between those supporting and those opposing statutory regulation. Then, first the Enterprise and Regulatory Reform Act 2013 and then the Crime and Courts Act 2013 were used by Parliament to give statutory backing to the new arrangements.

Two key ingredients were required to make a new system work. First, there had to be at least one regulator of the required competence, independent of government and of the industry; and secondly, there had to be some means of persuading publishers to subject themselves to such an approved regulator. The first issue was resolved through the creation of a Press Recognition Panel, duly established under the chairmanship of David Wolfe QC. This has had the job of considering whether any potential regulator can satisfy an established set of criteria mostly aimed at assuring the regulator’s independence, but including the requirement of the regulator for its members to join an arbitration scheme to settle disputes more cheaply and swiftly than through the courts.

Since our committee report last year, the Press Recognition Panel has indeed given formal recognition to a regulator, Impress, the Independent Monitor for the Press, chaired by Walter Merricks CBE. However, a large part of the national and local press which was already in membership of the self-regulatory body established by the industry itself—IPSO, the Independent Press Standards Organisation, chaired by Sir Alan Moses —has expressed no desire to switch to the newly recognised regulatory body, and IPSO itself has declared that it has no wish to be considered for official recognition. Indeed, my committee heard from Ashley Highfield, who chairs the News Media Association, that his organisation disputes the validity of the official recognition of Impress and will be taking the matter to judicial review.

The second ingredient in the new arrangements concerns the incentives for publishers to join an approved regulator, once one exists, and the disincentives for not doing so. The architects of the new arrangements in 2013 recognised that, in the absence of legal compulsion, some sticks and carrots were needed. This ingredient in the mix has proved even more problematic than the first. The carrot for joining an approved scheme is the more lenient treatment in respect of damages to be awarded where the publisher loses a case. This measure, covering exemplary damages, is already in force. The stick, which has not yet materialised, is contained in Section 40 of the Crime and Courts Act 2013. Under Section 40 all those publishers not signing up to be members of an approved regulator would face the potentially severe penalty of having all the costs of a complainant’s libel or privacy action automatically awarded against that publisher whether they won or lost the case. The intention was clearly that the significant risks of financial loss would strongly encourage publishers to join an approved, recognised regulator.

Section 40 could be effective only once there was a recognised regulator to which all publishers could belong. With the recognition of Impress, that requirement appears to be satisfied and the DCMS Secretary of State can press the button on implementing Section 40. The Secretary of State, Karen Bradley, told us how she wanted to consider all the relevant issues before taking any action, and a consultation process is under way and due to conclude on 10 January. The announcement of this government consultation emerged during debate on an amendment to the then Investigatory Powers Bill from my noble friend Lady Hollins, in effect to introduce the provisions of Section 40 in respect of hacking—“unlawful interceptions”—which was approved in your Lordships’ House but rejected in the other place.

Having listened to the key players, I think my fellow committee members will agree that matters are very far from being resolved. The members of IPSO will, it seems, passionately resist attempts to make them join a recognised regulator, of which the only one at present is Impress, with no others in the offing. Their objections are financial, with a belief that the compulsory arbitration scheme would be damaging to an industry which is going through tough times because of competition from the new online media, with consequent loss of advertising revenue. Their objections also relate to Impress itself, to which, for example, the News Media Association objects on grounds of lack of independence since its funding emanates mostly from a single sponsor, Max Mosley; because it lacks expertise, with no serving editors on its board or major publishers as members; and because it does not have its own code of practice. Important elements of the press object too on personal, philosophical, political and, to borrow a word from Sir Alan Moses, “theological” grounds. There is deep resentment of coercion by government, alongside fears for press freedom of expression that could deter editorial investigations and campaigns. We suspect that those newspapers such as the Guardian, the Financial Times and the Independent, which have not joined any regulatory body but have devised their own procedures for handling complaints, will also be very reluctant to join Impress for some of the same reasons.

The Communications Committee has also heard, on the other side, from Hacked Off and others that the current arrangements, although almost certainly an improvement on the previous position with the Press Complaints Commission, are far from perfect. IPSO is criticised for its lack of real independence from its paymasters and for its policies and decisions in relation to the prominence given to corrections, the need for apologies for victims, the ownership of the Editors’ Code of Practice by the industry and not the regulator, the absence of arbitration arrangements and more.

The position today seems to be one of stalemate, with the opposing camps showing no willingness to compromise on any point. Yet action by government to resolve matters has its own drawbacks. The Secretary of State could determine that self-regulation has not worked and could bring forward legislation for statutory regulation. This would lead to a protracted and acrimonious conflict with the press, which in my experience politicians are minded to avoid, not least at a time when Brexit discussions will occupy so much political time and capital. Alternatively, the Secretary of State could trigger Section 40 of the Crime and Courts Act 2013, thereby strongly incentivising the newspapers to join the only currently recognised regulator, Impress. From what we have heard, the press at large will do everything it possibly can to avoid this outcome. The temptation for the Government will be to postpone and delay action, perhaps keeping the sword of Damocles, in the form of an unimplemented Section 40, hanging over the press. Yet this outcome cannot be regarded as the optimum from the perspective of either the wider public or the press itself.

We are coming up to the 70th anniversary of the first Royal Commission on the Press, set up in 1947. The second royal commission was appointed in 1962 in response to the perceived failure of the first. The third royal commission reported in 1977, 40 years ago, and so the list goes on, with those concerned with the system of press regulation in the UK struggling to find a system that balances freedom of expression with the citizen’s right to privacy.

Yet broadly satisfactory regulatory regimes are operating within virtually all other industries. Statutory regulation applies to broadcasting; self-regulation works for the advertising industry; most sectors have mature arrangements for resolution of disputes. Surely it is not impossible to envisage arrangements that work satisfactorily for this important industry, the press, as well.

I ask the Government, once again, the question we posed in our earlier report: will the current situation, whereby the majority of the press refuses to submit to the royal charter, be allowed to pertain indefinitely? Your Lordships’ Communications Committee has not attempted to devise a new Leveson report or to produce the silver bullet that would make the royal charter a success. Rather we wanted, in our report of last year, to shed light on the state of play. In our recent probings, I hope we have brought things up to date in a helpful way. I beg to move.

--- Later in debate ---

[Lord Best]

My Lords, I am very grateful to the Minister for his excellent summary of all that has gone before, which means that I need not spend too much time repeating any of that. This debate illustrates that there is something to be said for a pause between a report being published and it being debated in your Lordships’ House. With the opportunity to reflect on these matters in the intervening period, the quality of debate has been enormously high. I am very grateful to noble Lords.

Roughly speaking, I discovered that one-third of your Lordships were in favour of the absolutely essential Section 40 being introduced forthwith; roughly one-third thought that Section 40 should not be introduced now or ever; and a third looked for the opportunity of a compromise solution that could genuinely be devised to secure that balance between the freedom of the press and real protection for citizens from libel or invasion of privacy by the press. That is a very rounded debate that I hope the Government will find of considerable value in the consultation exercise into which, fortuitously, all this now plays. With gratitude to all my colleagues for their contributions, I beg to move.

Motion agreed.