Future of Investigative Journalism: Communications Committee Report

Lord Inglewood Excerpts

Wednesday 25th July 2012 Grand Committee

Moved by

[Lord Inglewood]

That the Grand Committee takes note of the report of the Communications Committee, The Future of Investigative Journalism (3rd Report, Session 2010-12, HL Paper 256).

[Lord Inglewood]

My Lords, before making my remarks to the Committee, I should explain that I am non-executive chairman of the CN Group, in which I have 1,740 shares, which I am told are worth approximately £6,000. The background for this report and today’s debate is quite simply what we described in our report as,

“the greatest political media scandal of a generation”.

As the weeks and months have passed, the steady drip of revelations from Lord Justice Leveson’s inquiry into the culture, practice and ethics of the press have shocked even the most seasoned observers, and I am sure that Members contributing today will wish to say a word or two about the direction of Lord Justice Leveson’s inquiry—what we have learnt and how we might mould the future. Certainly, the continuing general relevance of this topic is clearly illustrated by the headlines in today’s newspapers.

Before I set out the main findings of the committee’s report, I should say that I fully understand that it will be difficult for the Minister to say a great deal today. We are all awaiting Lord Justice Leveson’s findings, and the committee, I believe entirely sensibly, agreed with the Department for Culture, Media and Sport earlier in the year that any formal government response to our report, prior to Lord Justice Leveson reporting, would be premature. As such, we are in something of a limbo, a “phoney war”, before he reports. The Government, but also Parliament, the media and the public, can reflect on how his findings might be taken forward. Depending on what emerges, we might carry out a short report on Lord Justice Leveson’s findings and/or the Government’s response.

I should also like to say how pleased I am that the noble Lord, Lord Macdonald of Tradeston, is set to speak today. He left the committee at the end of the last Session, but he was a real stalwart and I know that his contribution was greatly valued by all members. I am glad, as I am sure we all are, that he can participate today, and we very much look forward to what he has to tell us.

When we launched our inquiry into investigative journalism last July, the phone-hacking scandal had already led to the closure of Britain’s best selling tabloid newspaper—the News of the World—as well as the resignation of former newspaper editors, senior members of the Metropolitan Police and others. The atmosphere was, as your Lordships will recall, febrile to say the least, with opprobrium being heaped on the media from all sides. There seemed to be no end to the revelations and public revulsion. It is notable, however, although it is often forgotten, that it was the media themselves—Nick Davies from the Guardian—who broke the phone hacking scandal.

The genesis of the report that we are discussing today emerged from my musings when having a bath at home one Saturday evening. It suddenly dawned on me that the committee had to engage with the extraordinary events that were unfolding in front of us. We had been set to launch an inquiry into broadband, which we have subsequently taken up and will report on very soon. But in my Eureka moment, I felt that we had to rethink and enter the prevailing, turbulent debate about the role of the press: in our case, specifically the role of investigative journalism. I am very glad that we did because, while I am sure that Select Committees should not necessarily chase every supposed new revelation, on this occasion I am absolutely sure that we were right to do so.

We began with the belief that investigative journalism is vital for a healthy democracy. It acts as watchdog, holding those in positions of power and authority to account by exposing wrongdoing, hypocrisy and corruption; standing up for the public interest; and, on occasion, campaigning for reform. Its contribution to democracy is just as valuable at a local level as at a national one: it is to hold individuals and institutions to account; to ensure that their work is visible to the people whom they serve; and to keep people informed about what is happening in their local town halls, schools, hospitals or businesses. In essence, investigative journalism allows people to find out what is actually going on, rather than relying on the establishment to say what they want us to think is happening. It is the oil in the engine of a free and open society.

Our basic proposition was that, while illegal activity is obviously to be deplored and should be punished appropriately, high-quality investigative journalism really matters, and that it was also of overriding importance that the current scandal, and the understandable outrage that it provoked, did not lead to hasty policy responses that might permanently damage the place of investigative journalism in our country’s governance. Investigative journalism’s history of exposing issues that are not in the public domain, and speaking truth to power, needed to be guarded and supported, not jettisoned amidst the rubble of the phone hacking scandal.

Our report did not set out to propose possible solutions to the plethora of questions that bubbled up last summer and which are still on the boil. They are often complex and profound, and surround the public interest, privacy and media ethics. Many were then, and still are, being considered in other fora, most notably Lord Justice Leveson’s inquiry. Instead, our report sought to explore the specific media landscape in which investigative journalism operates. We argued that, fundamentally, any change should not be rooted in the past but should seek to enable responsible investigative journalism to flourish in the future.

The key is that responsible—and I stress “responsible” —high-quality investigative journalism is of paramount importance in any democracy worth its salt. It is a vital constituent of the UK’s system of democratic governance and accountability. At its best, it informs and educates us, enhancing our democracy immeasurably. One only has to look at the types of countries and regimes where it is difficult for journalists to operate freely to realise that we must not take it for granted and that any erosion of a free and responsible press should make us all very nervous. After all, we all know that a clamp-down on journalists is so often the first response of an authoritarian regime or a deluded crazed dictator.

It became clear during our inquiry that rapid economic, technological and behavioural change was creating profound economic, legal and regulatory challenges for investigative journalism and how it might be carried out in the future. Furthermore, it emerged that, even before the current scandal started to unfold, the economic climate was threatening original journalism. There was declining newspaper readership, fragmenting television audiences and the migration of printed advertising to online—all exacerbated by the impact of the worst economic recession since the war. As a result, some local newspapers, as your Lordships will know, have been forced to close and many journalists have lost their jobs. That happened long before the closure of the News of the World.

I do not wish to take up your Lordships’ time with an account of all the lines of inquiry that we pursued and all the recommendations that we made. However, I will draw out what I believe to be the most important. These mainly gather around the delicate and sensitive issue of whether it is ever acceptable for journalists to break the law if they believe that exposing a story will benefit the public good. In other words, we considered the vexed issue of “public interest”. When one starts to consider the public interest, it is quickly apparent that little is entirely black and white. It is more a case of 50 shades of grey—if your Lordships will excuse that particular reference.

The concept of public interest, which in British law is used to effect the balance between Article 8 and Article 10 of the European Convention on Human Rights, is at the heart of the issues that we considered. The right honourable Jeremy Hunt MP, the Secretary of State for Culture, the Olympics, Media and Sport, hit the nub of this when he told the committee:

“No journalist is or should ever be above the law, just as no Parliamentarian is or should ever be above the law, but journalists do have a public interest defence”.

He obviously used those words in a layman’s sense.

We learnt that in fact journalists sometimes do just that; they break the law, even though no one argued that any journalist is above it. On occasion they may do so by pruriently hacking into celebrities’ voicemail messages, while on other occasions they may do so with a higher purpose in order to investigate a particular important issue. We heard from witnesses about where and how this might occur, and to what degree. Editors candidly told us that there are occasions when the law is broken because journalists break the rules. We heard, for instance, about the use of illegal methods such as subterfuge or secret filming in order to uncover information for investigations. After hearing the evidence, we concluded that the important practical as opposed to ethical issues to be taken into account by journalists and editors when considering whether to use potentially illegal methods in order to obtain information which they believe to be in the public interest are, first, whether a decision to prosecute would be taken and, secondly, whether a jury would convict if it were.

Considering and determining these issues during the course of an investigation inevitably falls to the journalist and the journalist’s editor, so ultimately the buck stops with them. This is right. Media organisations themselves should and must take responsibility for their decisions on how to investigate and whether to publish a story. However, crucially, in coming to such decisions, it is important that journalists and editors do so in a way that is rigorously structured and that leaves an audit trail for future external scrutiny.

While that conclusion may sound straightforward on the face of it, in real life it can be anything but, so we presented a number of recommendations with the potential, we believe, to make this process significantly clearer and simpler than it is at present. We recommended that media organisations should implement a two-stage internal management process whereby they track and formally record, first, their decisions to investigate and, secondly, whether to publish a story if it actually involves breaches of the law or the Editors’ Code of Practice as justified by the arguments of public interest. We also recommended that regulators should in turn take such an audit trail into account when evaluating the responsibility or otherwise with which investigative journalism has been undertaken. The regulator should also take into account the actions taken ex post facto in considering what penalty is appropriate for any actual breach.

On the critical issue of what the public interest might be, we discovered that investigative journalism is suffering as a result of inconsistencies and lack of clarity in the law. An example of this was highlighted by the evidence of representatives of the Index on Censorship, who told us that:

“Potentially, The Daily Telegraph could have run a public interest defence if prosecuted under the Data Protection Act for leaking MPs expenses claims—but not if it were prosecuted under the Official Secrets Act. This is clearly an anomaly”.

I might go further and say that, frankly, it is absurd. We therefore, without proposing a formal statutory defence relating to the public interest either generally or in other specific statutes, made recommendations that sought to provide clarity in a slightly different way on the complex and sensitive issues surrounding this matter.

As I have just mentioned, we did not actually recommend that all relevant criminal law be redrafted in order to iron out inconsistencies between different pieces of legislation. We did, however, urge the prosecuting authorities to publish their broad approach to determining which cases should be prosecuted or not where illegal activity undertaken by journalists in the course of an investigation might be considered to be in the public interest. We were therefore very pleased when it emerged —just before we reported, as it happens—that quite independently of us, the Director of Public Prosecutions was broadly persuaded of this approach and is already taking it forward.

We argued that the public interest should be characterised by reference to good and responsible behaviour, not least as defined by the relevant regulatory codes of practice, which contain examples of what could constitute a sufficient public interest justification for breaching a rule or regulation. In this regard, we very much welcome the changes made last December to the Editors’ Code of Practice, which required that to argue a public interest exemption to breaching a certain section of the code, an editor must not only show that he or she and the journalists involved had good reason to believe that the public interest would be served in doing so, but show how and with whom that was established at the time.

We also discovered that investigative journalism is suffering from a lack of proper investment and organisational support. To offer some respite from the financial crisis across much of the media, we suggested the creation of an investigative journalism fund. Any fines that are levied for the transgression of journalistic codes of conduct, including fines that might be introduced under a new system of press self-regulation and a proportion of fines issued for breaches of the Ofcom code, should be allocated to this fund, which might be used for investigative journalism itself or for training investigative journalists.

We were also encouraged by the number of new funding and organisational initiatives that have started to materialise as alternative means of promoting investigative journalism. In particular, we agreed that it is vital that measures that are taken to support and foster further initiatives are independent of public subsidies or state support. Charitable status has been suggested as one route to encouraging philanthropic investment in this area, and we therefore recommended that the Government give further thought to this and to possible legislative change in this area. Furthermore, given the vital contribution of investigative journalism to the well-being of democracy, we also asked the Charity Commission to provide greater clarity in this area and to take into consideration the current pressures on investigative journalism, as well as its democratic importance, when interpreting the relevant legislation.

While we recognise the enormous economic pressures on traditional media, we urged them not to vacate the vital area of journalism training. We see some of the new media initiatives as opportunities for training in the skills of investigative journalism, and recognise the invaluable training opportunities provided by the mainstream broadcasters and university departments.

In conclusion, we were well aware that analysis of the media was and still is a very crowded field, but we hope that our examination of the media landscape and investigative journalism’s place in it will help to inform the current debate and assist in influencing any regulatory or legislative reforms that may be forthcoming. I look forward to today’s contributions and to debating these matters again in the future, which the committee sees as part of its core work of assisting the House in this important area of policy, technology and the economy. Looking forward, implementing Lord Justice Leveson’s findings will be of fundamental importance; I sincerely hope and expect that Parliament will be given a clear opportunity to have its say. I look forward to the debate and the Minister’s response although, as I said at the outset, I appreciate that she is on something of a sticky wicket this afternoon. After events at the Oval earlier this week, perhaps I ought to say that she is bowling on a flat one. Finally, I thank our specialist adviser, Steven Barnett, for his enthusiasm and expertise, and record our thanks to Anna Murphy and Emily Davidson, our clerk and policy analyst respectively, both of whom have since moved on to other activities. I beg to move.

--- Later in debate ---

[Lord Inglewood]

My Lords, when a Select Committee is conducting an inquiry, a central part of its chairman’s role is to try to draw together the views and evidence of the expert witnesses, and the expertise and experience of the members of the committee, to try to achieve common ground that is both constructive and sensible. On an occasion such as this, the chairman’s role is to try to present to the Committee an epitome of the consensus that is reached. I—and, I am sure, all the other members of the committee—very much welcome the support that has been given to our report.

We also welcome what I might describe as the reverse engineering that has been carried out on it without breaking support for its consensus. We all know that there are a wide range of views and perspectives about the current political issues surrounding the press and more widely. Of course, it is unfinished business. Our report is not an end in itself. It is meant to be a contribution to the wider political debate and challenge that is posed by what one might call the matter of the media.

Thinking back to my school days, I know that the last day of term is not an occasion to be verbose. I will conclude merely by saying that I hope and believe that my bath-time musings have not been in vain, even if I recognise that they will not bestow immortality on me, as they did on Archimedes.

Motion agreed.