Leveson Inquiry

Lord Sharkey Excerpts

Friday 11th January 2013 Lords Chamber

[Lord Sharkey]

My Lords, on page 1461 of his report, Lord Justice Leveson notes that, among other things, he is required to make recommendations for a new, more effective policy and regulatory regime which supports the plurality of the media. He goes on to say:

“This does not amount to a requirement for a detailed prescription on what constitutes sufficient plurality or the technical means of achieving it. It is important to note that, within the broad constraints of the work that the Inquiry has had to undertake, there has been insufficient time to devote to a full scale review or to look in detail at these issues. My analysis and recommendations are therefore at the level of desirable outcomes and broad policy framework, rather than the technical means of achieving those outcomes”.

Many may feel that this is a real pity and an opportunity missed. Lord Justice Leveson’s rather narrow interpretation of his brief on plurality stands in contrast to his very detailed examination and recommendations on media regulation. It would be a mistake to conclude from this that plurality was less central than the issue of regulation. However, I note that in his opening remark, the Minister made no mention at all of plurality.

The lack of plurality in our current media landscape is a clear driver of misbehaviour in parts of the media. Regulations without structural reform will not solve all the problems Leveson was asked to address. The executive summary of Lord Justice Leveson’s report contains 146 main paragraphs. Of these, only six address plurality. The full report does a little better: it sets out some useful observations on the nature and importance of plurality and of the steps that may be taken to address the problem that lack of plurality presents. Specifically, it notes that Ofcom defines the desired outcome of a plural market as,

“a) ensuring there is a diversity of viewpoints available and consumed across and within media enterprises and b) preventing any one media owner or voice having too much influence over public opinion and the political agenda”.

Leveson notes that the definition,

“seems to be generally accepted”.

Leveson then posed five key questions about plurality. He discusses in some detail the answers given in evidence to these questions. All the questions are important but, in the interest of time, I want to focus on just two: how should plurality be measured; and what form should any requirements to support plurality take and what sort of remedies should be available to deliver them? There are clearly many ways of setting a measure of plurality.

Ofcom considered three types of metric: availability, consumption and impact. Within this, it considered five different types of consumption metrics. Other witnesses spoke of the merits of revenue caps. The Ofcom proposal was very comprehensive but also very complicated. Leveson remarked on this when he said that,

“its complexity is also a disadvantage, in that it will be difficult for most people to understand and could come under sustained attack from those media providers who feel that they may be the subject of plurality concerns”.

I think there is a very important point here, which is that a complex system of ensuring plurality simply will not work. It will be opaque, user-unfriendly, difficult to explain and a bonanza for lawyers; and unlikely to produce simple, clear outcomes. Leveson’s recommendation on this area is that,

“Ofcom and the Government should work, with the industry, on the measurement framework, in order to achieve as great a measure of consensus as is possible on the theory of how media plurality should be measured before the measuring system is deployed, with all the likely commercial tensions that will emerge”.

Of course they should. However, there needs to be a strict timetable and a simple default mechanism for these discussions, otherwise all this is simply for the long grass.

In fact, there are simple proposals for a measurement framework. Both Claire Enders and Professor Barnett gave evidence on the notion of a simple revenue cap. Harriet Harman, Nick Clegg and Vince Cable were also open to the idea. It seems to me that a revenue cap is an essential starting point for any meaningful discussion of plurality. It has the merit of clarity and is related clearly to the real world. It reduces the need for bureaucratic or highly technical definitions and exceptions.

Whether or not a revenue cap is a central part of any future method of ensuring plurality, the second Leveson question is: what action can or should be taken if plurality rules are breached? At the moment, the existing and inadequate rules on plurality allow intervention only at the point of merger or acquisition. There are obvious problems with this. What about organic growth? There are hard questions here that should not be dodged. As with other markets where a company’s size is judged to be detrimental to the public interest, divestment must surely be an available remedy.

There are also obvious problems with the Leveson report’s brief recommendation on the internet in its section on plurality. The recommendation says simply that,

“online publication should be included in any market assessment for consideration of plurality”.

So they should, but it does raise the issue of what is meant by “publication”. Does this include Google and Facebook? Does it include Twitter? Arguably, these are all publications, but currently they do not have any obvious editorial function.

This is another area with perhaps an inbuilt and unfortunate invitation to complexity. It should not be like that. In fact, whatever rules, if any, finally emerge for plurality, they should be characterised by simplicity, ease of understanding and accessibility to common sense. That can be done for the internet, for example, by restricting considerations of plurality to those outlets that have an obvious and direct editorial influence on their content.

I repeat that regulation alone will not solve the problems addressed by Lord Justice Leveson. For example, the corrupting cosiness between politicians, the press and the police will not be stopped just by enforcing behavioural regulations. Politicians and the police have been too close to the media because of their perception of the media’s influence, and the size of this perceived influence is very often related very directly to the size of the media organisation. Regulation may stop criminal or shameful behaviour for a while, but it certainly will not stop undue influence. If undue influence does not stop, nor, in any enduring sense, will unacceptable media behaviour. Parts of the media in this country have felt themselves above the law. This is a cultural problem and is rooted in the establishment’s perception of the media’s power to damage, and that is related to size.

I end by asking my noble friend the Minister two simple questions. First, will he confirm to the House the Government’s commitment to addressing the plurality problem? Secondly, will he consider urgently bringing forward recommendations for a process and a timetable to complete the work on plurality only just begun by Lord Justice Leveson?