Report by Robert Henderson
The Letwin Plan – Freedom of the Press in a post-Leveson UK
Freedom Association meeting 25 February
John Whittingdale MP (Chairman of the DCMS select committee).
George Eustice MP
Harry Cole Blogger
Depressingly John Whittingdale and George Eustice are both wholeheartedly in favour of the Letwin Plan which is the Government’s response to Leveson’s proposals. I say depressingly because the Plan is dishonest in overt intent because it produces a system of regulation which pretends to be independent but is in reality authoritarian.
The proposed structure of the new system of regulation consists of a Recognition Panel (RP) which licences a Regulator, the relationship between the two being broadly akin to that of Ofcom licensing broadcasters, although here there will be three tiers of interested parties – the RP, the regulator and the press – rather than two.
The RP will carry out an assessment of the work of the Regulator every three year. However, in exceptional circumstances an inspection can be made when deemed necessary. The Regulator will have the power to levy substantial fines , viz:
15. 19. The Board should have the power to impose appropriate and proportionate sanctions(including but not limited to financial sanctions up to 1% of turnover of the publication concerned with a maximum of £1,000,000) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body.
The possible size of fines could have an excessive intimidatory effect, especially on publications which have relatively small publications.
The regulatory structure is to derive its legitimacy from a Royal Charter rather than a statute (The full draft Charter can be found at http://tinyurl.com/Draft-Royal-Charter-for-Press). This supposedly gives it independence from politician. Apart from being the thin end of the wedge to more extreme regulation, the personnel of the RP will be drawn from the usual cast list of the Great and the Good and, in the cases of both the RP and the Regulator, there will not be an outright ban on people with a media background merely either restrictions on serving mediafolk or their numbers. The funding of the RP will come from the fees charged to those applying to be Regulators with top ups from the taxpayer if required (the taxpayer will fund the first three years). The Regulator’s income will come from subscriptions and fines levied from subscribers found to be misbehaving.
The dishonesty continues with the claim that signing up to the new regulator will be a voluntary choice for the press. It will give a very strange meaning to the word voluntary, because those who choose not to sign up will leave themselves open to punitive damages in the courts whereas those who do sign up will be legally protected against such damages. This legal protection will require legislation.
During questions I pointed out the dishonesty and said that if the government was going to be authoritarian it was better if it was honest about what it was doing because this type of pretence was precisely what was disillusioning the general public when it came to politics. Another questioner made the pertinent point that two classes of plaintiffs would exist. There would be those suing subscribers to the Regulator (who would be protected against punitive damages) and those suing newspapers who had not signed up with the regulator who would be liable for punitive damages. This
could have the perverse consequence of allowing two plaintiffs with equal cases being awarded substantially different amounts in damages , or even worse, a less serious instance of press misbehaviour resulting in higher damages than a more serious instance. It could also have a seriously intimidatory effect on the smaller publishers.
The general problem with the Letwin Plan as outlined in the draft Royal Charter is the structural complexity of the system. The RP will have an appointments committee which creates an executive board licenses the Regulator which also has an appointment panel to create an executive board for the regulator. The Regulator then has to set up a Code committee to develop the Code of Conduct. This type of diffuse relationship is a recipe for buck passing.
Harry Cole was against the plan because the use of a Royal Charter brought with it difficulties of its own, most notably the fact that an amendment to a Charter required a two thirds majority of the Commons, as opposed to a simple majority to repeal or amend a statute. The draft Charter does indeed state this, viz:
9. CHARTER AMENDMENT
9.1. The Recognition Panel may add to, vary or omit (in whole or in part) any of the provisions of this Charter if, and only if:
a) a resolution has been passed unanimously by all of the Members of the Recognition Panel, who shall determine the matter at a meeting duly convened for that purpose;
b) the requirements of Article 9.2 are met.
9.2. Before any proposal to add to, vary or omit (in whole or in part) a provision of thi s Charter (“proposed change”) can take effect:
a) the leaders of the three main political parties in the House of Commons (being the parties with the first, second and third greatest numbers of Members of Parliament at the relevant time) must each confirm in writing to the Chair of the Board that he agrees to the proposed change;
b) a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means that at least two-thirds of the members of the House in question who vote on the motion do so in support of it. (http://tinyurl.com/Draft-Royal-Charter-for-Press)
Similar qualifications apply to the dissolution of the Charter – see 10. DISSOLUTION10.1
These Charter provisions would if valid make the alteration or the dissolution of the Charter very difficult – the procedures have to be initiated by a unanimous resolution of the Recognition Panel and before any change can be put to Parliament (both houses) the leaders of the three largest parties in the Commons have to each agree to either a Charter change or dissolution of the Charter. However, there is a rather large question mark over whether they are valid. Here are the general rules governing amendments to Royal Charters:
…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of The Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy. (http://privycouncil.independent.gov.uk/royal-charters/chartered-bodies/).
(d) incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (ie Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way; (http://privycouncil.independent.gov.uk/royal-charters/applying-for-a-royal-charter/)
The Privy Council practices appear to come into direct opposition with the draft Royal Charter where it touches on amendments to or dissolution of the Charter. It is important to understand that if granted the Royal Charter will not be an artefact of Parliament. Technically it will be a Royal artefact although in reality a government artefact. It might be thought that Parliament being sovereign could override the Privy Council procedures, but it is not as simple as that. The Privy Council procedures are separate from Parliament. Parliament wanted them to be subordinate to Parliament that would mean a redrawing of the Constitution, something which has can have wide ramifications, as was show all to starkly by the last Labour government’s botched attempt at ending of the post of Lord Chancellor.
The problems do no end there. Reading through the draft Royal Charter there is a distinct whiff of the PCC about the set up. For example, take the parameters of the Code of Conduct:
15 7. The standards code must ultimately be adopted by the Board, and be written by a Code Committee which is comprised of both independent members and servingeditors.8. The code must take into account the importance of freedom of speech, the interests of the public (including but not limited to the public interest in detecting or exposing crime or serious impropriety, protecting public health and safety and preventing the public from being seriously misled), the need for journalists to protect confidential sources of information, and the rights of individuals. Specifically, it must cover standards of:
a) conduct, especially in relation to the treatment of other people in the process of obtaining material;
b) appropriate respect for privacy where there is no sufficient public interest justification for breach; and
c) accuracy, and the need to avoid misrepresentation.
The likely code of Conduct will be one close that of the PCC Code which apart from being frequently not applied by the PCC also gave plenty of wriggle room, especially with the question of the public interest.
None of the panellists suggested that rather than having this great regulatory edifice, a statutory right of reply (RoR) would do what was required without any chance of political interference. This is because
it is a self-organising process which would involve only the newspaper and the complainant or, where an RoR was refused, the courts. Consequently I did. John
Whittingdale tried to dismiss the idea by saying it would be unworkable because of the number of people asking to reply would be vast. I pointed out that this would not be a problem if the RoR was restricted to a reasonable length.
I also suggested that claims for financial redress by those abused by the press should be dealt with through the Small Claims courts with no right of appeal from the Small Court’s verdict and no lawyers allowed, that is, just the lay plaintiff confronting the lay representative of the newspaper involved. Again this met with a blank lack of interest by the two MPs. The Small Claims court could also deal with refusals of a newspaper to publish an RoR.
Had I been given the time I would also have raised the problem of how the Regulator would possibly be able to handle the likely number of complainants. In this context the Information Commissioner’s office (IFO)
can give some idea of the difficulties which are likely to arise. A complaint under either the Freedom of Information or the Data Protection Acts to the IFO is likely to take a year or more to gain an adjudication despite the fact that the IFO employs several hundred people. You can bet your life that the proposed Regulator will not employ hundreds of people because the funding of the Regulator will come from the subscribing newspapers . The difficulty of the numbers complaining vastly exceeding the resources available is exacerbated by the allowing of third party complaints:
15.11. The Board should have the power to hear and decide on complaints about breach of the standards code by those who subscribe. The Board should have the power (but not necessarily the duty) to hear complaints: a) from anyone personally and directly affected by the alleged breach of the standards code, or b) where an alleged breach of the code is significant and there is substantial public interest in the Board giving formal consideration to the complaint, from are presentative group affected by the alleged breach, or c) from a third party seeking to ensure accuracy of published information.
Third party complaints also raise the problem of subjectivity by the Regulator, whose board members, being human, are likely to favour complaints which fit with their political sympathies whilst discriminating against those of which they disapprove.
In short, the proposed regulatory regime is, apart from being the thin end of the wedge for state control of the press, dishonest in intent, constitutionally unsound and administratively impractical .