On 1 March 2018 the government announced that it would not be proceeding with the second stage of the Leveson Inquiry, and would seek to repeal section 40 of the Crime and Courts Act 2013. This post explains the background to that decision and assesses where that leaves us with press regulation.

Background

The first part of the inquiry chaired by Lord Justice Leveson from 2011-12 looked into phone-hacking and other unlawful conduct by newspaper publishers, following a scandal that had caused the closure of the News of the World in 2011, extensive civil litigation (which is still ongoing), and eventually led to the conviction of a number of journalists in 2014.

The Leveson Report, published in 2012, made a number of recommendations designed to facilitate effective independent press regulation, one of which resulted in the establishment, under a royal charter, of a Press Recognition Panel (PRP) to approve any press regulator.

Section 40 of the 2013 Act would then provide that any publisher NOT regulated in accordance with that system, would be liable to pay the costs of any defamation or privacy claims brought against them, even if the claim was not successful. The section was enacted, but was not brought into effect along with the rest of the statute.

There was widespread opposition to section 40 from mainstream press publishers, most of whom are signed up to a regulator, IPSO, that is not approved by the PRP. This means that they would not benefit from the protection from the draconian costs provisions that such approval would have conferred under section 40(6). There is a PRP-approved regulator (IMPRESS) whose members would have been protected, but most of the mainstream publishers don’t want to join it.

The second part of the Leveson Inquiry (‘Leveson 2’) was intended to examine wrongdoing by the press and the police, including the failure of the first police investigations, corporate governance issues and implications for police and press relations. The reason that did not proceed as soon as the first part was dealt with, was because a number of criminal proceedings had to be concluded first.

The consultation

In November 2016 the then Secretary of State for Culture, Media and Sport, Karen Bradley, issued a consultation on whether Leveson 2 should now go ahead, and section 40 be brought into force. That consultation ran until the 10 January 2017. There were ultimately nearly 175,000 direct responses, plus over 200,000 by way of petition. It was one of the largest responses to any government consultation. In October 2017, Bradley told a parliamentary committee that the government’s response would be published before the end of the year, but it was further delayed while the views of Sir Brian Leveson were sought.

As noted above, there was widespread opposition from the mainstream press. To encourage their readers to respond to the consultation, some owners printed letters in their newspapers, in which the purpose and effect of section 40 was not always accurately presented, with coupons their readers could fill out and send in. The PRP set up under a royal charter was routinely described by press opponents as a ‘state-backed regulator’. But, however one might cavil at that, the fact remains that no industry can be regulated under a system that does not command broad support from that industry’s members.

On the other hand, there was also a very vocal impetus in favour of implementing section 40, notably from bodies such as Hacked Off, representing the interests of victims of phone-hacking and other abuses, and seeking to promote better press regulation.

There was much the same division over Leveson 2, except that there were also the two petitions, one from 38 degrees comprising over 130,000 signatures, and one from Avaaz comprising a further 70,000-plus signatures, all in favour of its continuing. It also appears from his correspondence with the government that Sir Brian Leveson himself was in favour of continuing with his inquiry, for reasons which he set out in a letter to the Home Secretary, Amber Rudd, and Bradley’s successor as Secretary of State for Digital, Culture, Media and Sport, Matt Hancock.

The key points in Sir Brian’s letter are set out in a news update on Inforrm’s blog, as follows:

• That, since Part 1 of the Inquiry, it had been revealed that phone hacking was more widespread than was then disclosed [and] that the evidence given to Part 1 was “far from complete”, so that it “remains unclear exactly how widespread these and similar practices have been throughout the print media”.
• That neither Part 1 nor the criminal trials have provided answers to “who did what to whom”
• That there were sharp differences of opinion as to whether IPSO was sufficiently distinct from the PCC as to have resulted in a real difference in behaviour.  This could be assessed during Part 2.
• That there has been no investigation of corporate governance and management failures at News International and other newspapers.
• That Part 2 could deal with the question as to whether new media outlets should be subject to greater regulation.
• That the problems with data protection identified in Part 1 remain.

Sir Brian concludes

“I have no doubt that there is still a legitimate expectation on behalf of the public and, in particular, the alleged victims of phone hacking and other unlawful conduct, that there will be a full public examination of the circumstances that allowed that behaviour to develop and clear reassurances that nothing of the same scale could occur again: that is what they were promised”.

See News: Government Abandons Leveson Part Two, Sir Brian Leveson “fundamentally disagrees”

Our analysis

The government’s response is much as we predicted back in December 2016, soon after the consultation was opened: Press regulation: what are we waiting for now? We wrote:

In the face of this virtually unanimous chorus of objection, with a government mired in uncertainty over Brexit and struggling to demonstrate competence in other areas, it seems extremely unlikely that it will trigger the nuclear option of section 40 and further alienate the tabloid press. Nor, given the current financial climate, and the quagmire into which the Child Sex Abuse inquiry is currently floundering, is there likely to much appetite for further inquiry hearings. So Leveson 2 is, very probably, either going to be cancelled altogether, or placed into further suspended animation (though it is hard to see on what basis). At any rate, the likelihood of its getting a green light at this stage is vanishingly small.

The reason given by Matt Hancock when announcing the decision in Parliament was that “We do not believe that reopening this costly and time-consuming public inquiry is the right way forward.” That begs the question of what the government thinks really is the right way forward.

Hancock has previously signalled his opposition to votes by the House of Lords, while debating the Data Protection Bill, in favour of a measure similar to section 40, and calling for Leveson 2 to proceed. (The Guardian, Matt Hancock: Lords’ Leveson ‘yes’ vote is blow to local press.)

In assessing the consultation responses, the government explicitly gave equal weight to all the direct responses (including those consisting of coupons filled in at the prompting of newspaper bosses) but chose to ignore the response by way of petition. So the 200,428 petition signatures in favour of proceeding with Leveson 2 were ignored when weighing up the 12% (20,967) in favour of Leveson 2 against the 66% (104,838) against it, and the 22% (38,441) who did not give a view either way.

If the petition responses had been taken into account as votes in favour of Leveson 2, the voting outcome would have been very different:

• Yes to Leveson 2: 200,428 + 20,967 = 221,395.
• No to Leveson 2: 104,838.
• Don’t know: 38,441.

The decision to ignore the petition but take into account mass responses organised by lobby groups and newspaper owners suggests an approach to the process of public consultation which is not entirely democratic.

In his statement, Hancock said there had been many changes since the 2012 Leveson report:

“It’s clear that we’ve seen significant progress, from publications, from the police and from the new regulator. The world has changed since the Leveson inquiry was established in 2011. Since then we have seen seismic changes to the media landscape.”

One change has been the falling circulation and consequent drop in advertising revenues of the newspapers themselves, particularly local newspapers. Anxiety over what this might mean for proper coverage of the courts and local democracy has been manifested in two recent developments. One was the establishment of the  BBC-funded Local News Partnership, funding 150 ‘local democracy reporters’ out of licence fee money, with content shared among media organisations. The other was the setting up by Her Majesty’s Courts and Tribunals Service (HMCTS) of working parties, one to work with the Society of Editors and another to promote media access within the current court modernisation project known as HMCTS Reform. We wrote about these in a recent post, Crisis in Our Courts – and How to Solve it.

Section 40 was always going to be a difficult sell, with its dependence on membership of an approved regulator.

The PRP has only approved one regulator, Impress, but its funding depends on something called the Independent Press Regulation Trust (IPRT), a charitable trust funded in turn by the Alexander Mosley Charitable Trust (AMCT), whose main donor is Max Mosley. His involvement is undoubtedly controversial, though there is no suggestion that he has any control over Impress operational decision making.

Mosley has been in the news last week with allegations of his involvement in a long-lost election leaflet dating from the early 1960s, containing racist material, and suggestions that he may have lied about this during his successful privacy claim against the News of the World in 2008. He has denied that. Nevertheless, the timing of the revelations has certainly been convenient for the press. Mosley has long been regarded by those newspapers who prefer collective self-regulation via IPSO, as an unsuitable, even toxic, funder and supporter of press regulation. There is little doubt that his involvement, rightly or wrongly, has harmed the public perception of Impress, which is also very evidently the preferred regulator of organisations like Hacked Off who represent other victims of press wrongdoing. But as they would no doubt point out, they support it precisely because it conforms to the blueprint in the Leveson Report.

In its response to the consultation, the National Union of Journalists said it was ‘very concerned about the implementation of the potentially punitive elements of Section 40’, and that:

The notion that successfully defended cases, brought in the wake of significant journalistic investigations and reporting in the public interest, could still lead to a newspaper having to pay costs for the losing side is not tenable.

Instead, the NUJ proposed partially implementing section 40 in such a way as to promote an adequate arbitration service, that has the support of the public as well as journalists. We understand that to mean that, providing a publisher belonged to any regulator with adequate arbitration systems in place, that might satisfy the conditions of section 40 without the need to be approved by the PRP. Potentially that could bring IPSO within the embrace of the exemption in section 40(6). In this context, it is interesting that IPSO has recently relaunched its somewhat under-used arbitration service – though, as Dominic Ponsford pointed out in the Press Gazette, ‘as the scheme is optional for publishers it is, in all honesty, rather meaningless’.

The NUJ was also in favour of continuing with Leveson 2, which it described as ‘unfinished business’.

Even accepting the demise of section 40, the discontinuance of Leveson 2 seems more obviously open to the charge of appeasement of the mainstream press publishers, or at any rate an overly eager accommodation of their concerns. Sir Brian’s own reference (a very carefully chosen and judicious one, no doubt) to there being a ‘legitimate expectation’ of the inquiry being resumed might be interpreted in some quarters as flagging up a possible ground for a claim for judicial review. That would put the government’s decision under very close scrutiny, if leave were granted for such a claim to go ahead. Crowd-sourced judicial review claims have met with mixed fortunes in the courts, however, and there is also a risk of some quarters of the press adopting an ‘enemies of the people’ position.

There has not yet been much commentary on the May government’s rejection of the Leveson agenda which the Coalition government of David Cameron had so strongly supported. In an editorial issued the same day (1 March 2018) The Guardian said the government’s approach, which it saw as aiming to ‘improve the culture, practice and ethics of the press and at the same time protect and promote the best of journalism in the public interest’ should be ‘given a chance’ (The Guardian view on Leveson part two: look ahead, not behind). It pointed the finger at the greater threat of fake news on social media, at the Internet giants like Google and Facebook who have failed to control the interference of ‘malicious foreign actors’, and at attempts to use data protection law ‘as a Trojan horse for state-backed press regulation’.

No doubt all of this is fair criticism, but while it may support more or better regulation it does not justify abandoning an inquiry into the problems of the past. All inquiries look at what happened in the past, in order to learn lessons for the future. It’s what the SpyCops inquiry is doing, the Grenfell Tower Inquiry, the Sex Abuse Inquiry. It’s what Leveson 1 did and the Hillsborough Inquiry. The Guardian’s suggestion that it amounts to ‘a driver learning to steer by looking in the rear-view mirror at the road behind rather than the one ahead’ is positively fatuous.

In The Times, an article by Ashley Highfield, chief executive of Johnston Press, which owns a number of local newspapers, can hardly be considered impartial. Nevertheless, his view that ‘There is simply no precedent for a functioning democracy without a vibrant and independent press’ is one that few if any would argue with.

But when he complains about the digital revolution concentrating power in the hands of a few tech giants, he seems curiously oblivious of the few hands into which for many years the majority of press publishing power has been concentrated. And in the end his article, Democracy is threatened if local papers lose out to Google and Facebook [£], is not complaining about regulation so much as about competition, which he thinks is unfair. It may be, but that seems no reason not to provide strong and effective regulation.

Further reading:

Government response to the Consultation on the Leveson Inquiry and Its implementation

Press Gazette:

• Government closes Leveson Inquiry and pledges to repeal Section 40 laws as it says focus now on ‘challenges’ facing news industry
• National newspapers welcome closure of Leveson Inquiry but warn of threat to press freedom from Data Protection Bill changes
• Max Mosley’s long fight with the British press: He has a lost a battle but he could still win the war 

Brian Cathcart, via Byline / Inforrm, The Guardian’s Leveson Betrayal, Line by Line

Featured image: Yesterdays News by (Mick Baker)rooster, reproduced with thanks via Flickr creative commons.