Media Standards and Media Regulation

Lord Black of Brentwood Excerpts

Thursday 25th October 2012 Lords Chamber

[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.