Tag Archives: Leveson Inquiry

Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson

aileenIain Jamieson’s earlier post argues that the ability of the Scottish Parliament to implement its own model of press regulation in response to the Leveson Report has effectively been ousted by the UK government’s proposal to establish a UK-wide system of press regulation by Royal Charter.  I would take issue with two aspects of his analysis.

First, Jamieson claims that, since the provisions of the proposed Royal Charter will be entrenched by clause 92 of the Enterprise and Regulatory Reform Bill, which applies to Scotland, the Scottish Parliament cannot legislate to amend the Royal Charter or provide that it should not apply to Scotland.  Clause 92 provides that the Charter cannot be amended except in accordance with the procedure laid out in the Charter itself (two thirds majority of each House).  As Jacob Rowbottom has argued on this blog, the degree of entrenchment actually provided by this device is limited because clause 92 can itself be repealed or amended by subsequent UK legislation with no special majority.

To argue that the Scottish Parliament will nevertheless bound be by clause 92 therefore requires the further claim that, because clause 92 (however indirectly) ‘occupies the field’ in relation to press regulation, the Scotland Act 1998 will be impliedly repealed insofar as it devolves power to legislate on that issue to the Scottish Parliament.  There are at least three ways of responding to this implied repeal argument, all of which lead to the conclusion that the Scottish Parliament will not in fact be bound by clause 92.

The first, and most speculative, response would be to rely on Laws LJ’s obiter dictum in Thoburn to the effect that, since the Scotland Act is a constitutional statute, it cannot be impliedly repealed.  This would mean that the only way in which the Scottish Parliament’s legislative competence can be reduced would be through express amendment via primary legislation or a section 30 order, either of which would require (by convention, in the former case, and by statute, in the latter) the consent of the Scottish Parliament.

It is, however, unnecessary to adopt such a heterodox approach.  A second, more conventional, approach would be to accept that the Scotland Act may be impliedly repealed, but to argue, as Barber and Young have done (‘The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty’ [2003] PL 112, pp 112-6), that a statute can only be impliedly repealed by a subsequent statute on the same subject matter, not merely by a later conflicting statutory norm.  Since the Enterprise and Regulatory Reform Bill does not deal with the same subject matter as the Scotland Act (the division between reserved and devolved legislative competences), it cannot impliedly repeal the transfer of power to the Scottish Parliament effected by the Scotland Act even if a norm contained within it or flowing from it for the time being ‘occupies the field’ of a particular devolved competence.  It would, on this analysis, still be open to the Scottish Parliament to assert its legislative competence in relation to press regulation and repeal (expressly or impliedly) the provisions contained in clause 92.

A third, even more conventional approach, would lead to the same conclusion.  This would be to accept that a statutory provision can be impliedly repealed by a later inconsistent statutory norm, even if the subject matter of the two statutes is not identical.  This view, however, requires a more nuanced approach to when such a conflict arises.  In relation to the Scotland Act 1998, for instance, it may be argued that the transfer of legislative competence in devolved areas to the Scottish Parliament is not inconsistent with (and therefore not impliedly repealed by) later UK legislation on a devolved matter because the Scotland Act itself, in s.28(7) expressly envisages that such a situation may occur.  This approach suggests that the Scotland Act, properly understood, involves a sharing of legislative power between the UK and Scottish Parliaments, and that the latest norm on a particular devolved matter will prevail irrespective of the Parliament from which it emanates.  This analysis would appear to be the one which best fits the post-devolution legislative practice, where the Scottish Parliament has regularly consented to allow the UK Parliament to legislate on its behalf, but has on some occasions subsequently amended such legislation.

The second point which arises out of Jamieson’s blog concerns whether the UK government is legally or constitutionally entitled to impose a system of press regulation on Scotland via the royal prerogative.  The constitutional position, as set out in written answer by Tony Blair on 30 June 1999,  is that where the exercise of prerogative powers relates to a matter within devolved competence, it is for the First Minister rather than Ministers of the Crown to advise the Queen.  The situation is slightly different in relation to business of the Privy Council, such as grant or amendment of a Royal Charter, because it is the Privy Council as a whole rather than a particular minister which advises the Queen.  Nevertheless, the written answer states that:

the advice in relation to a particular matter which the Privy Council offers to Her Majesty is in many instances based, either by virtue of statutory provision but more often by convention, on advice or information provided to the Privy Council by one or more particular Ministers of the Crown as the Privy Counsellor with the principal interest in that matter.’

It goes on to state that, in areas of devolved competence, the Privy Counsellor with the principal interest would be the First Minister (who is a member of the Privy Council).

It is not clear from these provisions whether the Privy Council as a whole is entitled to depart from the advice of the principal minister.  Where there is a conflict of views between members of the same administration it may perhaps be argued that the majority view should prevail.  However, in the case of a conflict between the view of the First Minister and other Privy Counsellors representing the UK government, there is a strong case (for the reasons that Jamieson outlines) for saying that it should not.

Given that the question of who should advise the monarch on the exercise of the royal prerogative is a matter of convention rather than law, it may be difficult to argue that the UK government would be acting illegally if the Privy Council were to recommend the adoption of a system of press regulation applying throughout the UK in the face of Scottish opposition.  As a matter of constitutional morality, though, it is hard to avoid the conclusion that to treat the design of a new UK-wide system of press regulation as a matter for negotiation purely between the main parties in the UK Parliament is constitutionally improper.

Contrary to Jamieson, therefore, I would argue that just because the UK government has chosen a regulatory vehicle which manages to avoid the application of the Sewel Convention, it does not thereby follow that the Scottish Parliament is compelled to accept it or deprived of its competence to legislate for a different system of press regulation in Scotland.

(I am grateful to Chris Himsworth for his very helpful comments on this note and particularly for alerting me to the Blair written answer.)

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

 Suggested citation: A. McHarg, ‘The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson’ UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

 

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Iain Jamieson: The Leveson Report, the Royal Charter and the Scottish Parliament

The Scottish Parliament can legislate to regulate the press in Scotland. This is because this matter  is not made a reserved matter. In principle, therefore, it would be competent for the Scottish Parliament to legislate to give effect to the Leveson Report in whatever way they thought fit.

It was for this reason that the Scottish Government appointed an Expert Group under the chairmanship of  Lord McCluskey  to consider what was the most appropriate way of giving effect to that Report in Scotland. The Expert Group has now published their report but it has been met with an almost universal hostile reception by the press.

However, the Expert Group Report may, to a large extent, now be irrelevant.  This is as a  result of the way in which the UK Government is proposing to give effect to the  main recommendations in Leveson regarding the setting up of the Recognition Panel  to recognise the independent regulatory body for the press.   The UK Government propose to do so by means of a Royal Charter. This will be contained in an Order in Council made under the Royal Prerogative. There is nothing in the Royal Charter to indicate that it is not intended to extend to Scotland. In the absence of any such indication, it will extend to Scotland.

By implementing the Leveson Report in this way, the UK Government has, in effect, bypassed the need to obtain the consent of the Scottish Parliament to the terms of the Royal Charter in so far as they extend to Scotland.. This is because the consent of the Scottish Parliament is only required, under the Sewel Convention, to approve any Bill proposed in the UK Parliament which deals with devolved matters or affects the legislative competence of the Parliament. Neither the Royal Charter nor the Order in Council will constitute such a Bill. The Scottish Parliament will, therefore, have  been deprived of having any say in the provisions of that Royal Charter.

Given the terms of the Royal Charter, it would not appear that the Scottish Parliament could provide for the press in Scotland to be compelled to join a regulatory scheme, as the McCluskey Report proposed.  Accordingly, it would seem that all that would be left for the Scottish Parliament to do is to provide , as a matter of Scots law, for  similar incentives to encourage the press to join the new regulatory scheme as those made in clause 21A of the Crime and Courts Bill (as amended  at Third Reading in the Commons).

In certain circumstances, the UK Parliament can over-ride the prerogative and it is thought that the Scottish Parliament would also be able to do so within devolved matters.  It may be thought, therefore, that it would still be possible for the Scottish Parliament to legislate to amend the Royal Charter or to provide that it should not apply in Scotland.

However, this would not appear to be possible because the Royal Charter also provides that it cannot be amended, or the Recognition Panel dissolved, unless a draft of the proposed change has been laid before the UK Parliament and approved by a resolution of two thirds of the members of each House.  No mention is made of any need to obtain the consent of the Scottish Parliament, whether by simple majority or otherwise.

These provisions in the Royal Charter are entrenched by clause 92 of the Enterprise and Regulatory Reform Bill (as amended at HL Report) which provides-

“Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter, or dissolve the body, unless any requirement included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”

This clause extends to Scotland (see clause 97(8)). However, it may be doubted whether, given the very general terms of clause 92, it would trigger the need for a LCM (or Sewel motion) in the Scottish Parliament but, even if it did, the consent required would only relate to that provision and not to the terms of the Royal Charter itself.

The effect of all this is that the Scottish Parliament has, in effect, been  deprived of its power to make substantive provision for the regulation of the press in Scotland. This has been done not by any of the recognised ways of amending the list of reserved matters in Schedule 5 to the Scotland Act 1998, such as by means of a section 30 order, but indirectly as a by-product of the UK Government deciding to use the Royal Prerogative to give effect to Leveson.

Suggested citation: I. Jamieson, ‘The Leveson Report, the Royal Charter and the Scottish Parliament’ UK Const. L. Blog (20th March 2013) (available at http://ukconstitutionallaw.org)

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Jacob Rowbottom: Entrenching a Royal Charter – some initial thoughts

jacob-rowbottom-photoAfter much political manoeuvring over the weekend, a deal has been struck on the Royal Charter to implement Leveson. A key point is that it will prevent the Charter being unilaterally changed by future governments. An amendment to the Enterprise and Regulatory Reform Bill seeks to achieve this by providing:

“Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”

It is stated in general terms, not referring to the newspaper industry, to avoid anything resembling a ‘press law’.

My initial thoughts are that this clause raises a few questions. It allows for some procedural entrenchment of certain types of Charter, as gives the government power to include ‘requirements’ relating to parliamentary approval, such as a super-majority. It does not require the initial version of the Royal Charter to be approved by Parliament. So, if a future government decides to set up a body by Charter with functions relating to a particular industry, but fears that the opposing party (if elected) may wish to tinker with it, that government can insert terms saying the Charter cannot be amended without a three-quarter majority in both the Commons and Lords. The hands of the future governments would be tied by the decision of its predecessor.

Constitutional lawyers are familiar with this type of issue when looking at the manner and form argument in relation to legislation. However, prerogative powers are different, are less transparent and do not go through the same process of scrutiny.  This means that if the terms of a Charter are thrashed out behind closed doors between interested parties, they can be put in terms that protect it from change without a super-majority. Maybe we should be cautious about giving ministers a power to entrench. While limited to only to Charter bodies ‘with functions relating to the carrying on of an industry’ (and I have no idea how often this will crop up), it sounds like a significant power to give to the government that sets up the body.

The terms of such a Charter may be safe from changes by ministers, as the clause controls recommendations being made ‘to Her Majesty in Council to amend the body’s Charter or dissolve the body’. However, it would still be open to Parliament to override the terms of the Charter. For example, what happens if in future the new press regulator becomes subject to criticism and the political party in government argues that some changes need to be made to the body that recognizes the regulator (it is the recognition body that will be established by Charter). That government would not be able to amend the Charter itself without a super-majority, but it could certainly pass primary legislation to change the functions of the recognition body with a simple majority. If that means the changes have to go through the full rigour of political scrutiny in Parliament, that is no bad thing. However, many of the arguments advanced against having a Leveson statute were that future governments could tinker with the law through amendment. As I argue in a recent paper, that possibility is still left open with the case of a Royal Charter. While a decent system of independent self-regulation can be established through a Charter, it is not clear whether it offers any advantages over legislation.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Entrenching a Royal Charter – Some Initial Thoughts’  UK Const. L. Blog (18th March 2013) (available at http://ukconstitutionallaw.org)

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Jacob Rowbottom: Ministers, media and the decision to investigate

Last week, an editorial in the Guardian called for the Independent Adviser on Ministerial Interests to be scrapped. The paper argued that, as the Adviser is called into action so infrequently, his £20,000 salary is not a good use of resources. Since that article was published, Baroness Warsi has been referred to the Independent Adviser, so at least the current holder of the office, Sir Alex Allan, has some work to be getting on with. However, controversy still surrounds David Cameron’s decision not to refer Jeremy Hunt to the Independent Adviser too.

While there are differing views as to whether Hunt acted in breach of the Ministerial Code, the difficulty lies with the process for deciding whether to refer a matter to the Independent Adviser. It is the Prime Minister that determines whether an alleged breach of the Ministerial Code should be subject to an independent investigation. Whenever I teach ministerial responsibility, most students are pretty quick to spot the basic problem with this arrangement, namely that the PM will have a strong incentive not to refer matters that might have significant political repercussions. So, some commentators speculate that Cameron has been unwilling to refer Jeremy Hunt because an investigation into his with News Corp might reflect badly on Number 10 too. By contrast, an investigation into Baroness Warsi’s alleged failure to disclose a business interest is less likely to wreak damage to the government as a whole (and may have little long term impact on Warsi’s career).

Whether such incentives are at play is speculative. While we can’t know for sure the PM’s reasons, there is still a public perception that the power to refer to the Independent Adviser is used strategically. The PM’s has discretion not only in initiating a formal investigation, but also in deciding the sanction in the event of a breach of the Ministerial Code. That latter discretion is unavoidable, as questions relating to the composition of the Cabinet are ultimately for PM.

The position of Independent Adviser was set up in 2006, as part of a gradual process that has led to more formalized controls on ministerial ethics. The current system seeks to provide some sort of independent check on ministers, while preserving the PM’s ultimate responsibility for the government. It is a system that is a mixture of political discretion and formal investigation. The current concern is that the former element undermines the latter. There are, of course, improvements that could be made. In 2008, the Public Administration Select Committee (PASC) called for the Independent Adviser to be given powers to initiate an investigation of an alleged breach of the Ministerial Code, without a referral from the PM. In March this year, the PASC made the same call again for such a powers to be granted. That change would preserve some political discretion, but do so at the sanctions rather than the initiation stage.

The very issue that has led to calls for Jeremy Hunt’s investigation, the role of the government in relation to the regulation of media mergers, raises a parallel issue. When a media merger is to take place, the Secretary of State has the power to initiate an investigation into the effects of that merger on media plurality (the public interest test). In such circumstances, the minister refers the matter to Ofcom. After Ofcom has made its report, the minister can then refer the merger to the Competition Commission (News Corp’s BSkyB bid was at this stage last summer when the phone hacking scandal broke). If the Commission makes a finding that the merger will be detrimental to the public interest, the minister has the power to approve, block, or attach conditions to the merger. Like the PM’s power on the Ministerial Code, the Secretary of State has the power to initiate an investigation and to impose remedies after the conclusion of the investigation, but an independent body conducts the investigation. It too is a mixture of political discretion and formal investigation. It is also similar to the Ministerial Code process in that there is great suspicion that the minister uses the discretion for strategic reasons.

Again, one solution is to give the investigator, in this case Ofcom, the power to get the process started without a reference from the minister. The House of Lords Communications Committee proposed such a reform in 2008. The possibility of handing the process to independent regulators was also recently discussed at the Leveson Inquiry. At the Leveson hearings, Vince Cable voiced opposition to such a change, arguing that politicians have a legitimate role to play in the media mergers regime. He said:

‘[…]elected politicians, ministers, have a role in the process, and I think that’s absolutely right. I think it’s right because when we’re talking about matters of public interest, we’re making qualitative judgments. We’re not following a sort of quantitative metric, which is what one would normally do with, say, a competition case, and I think it’s right that those decisions be made by people who are — have legitimacy through the democratic process, who are accountable to Parliament […]’

He went on to say that the risks of bias are limited, given that the Secretary of State has to follow a prescribed process, take legal advice and can be subject to judicial review. Cable then noted that to take the decision to initiate the process away from a politician would be to seek ‘artificial comfort’ in a bureaucratic mechanism.

Generally speaking, I have some sympathy with Vince Cable’s point. A decision does not become any less political by giving it to a bureaucrat or quango, and judgments involving the public interest are normally for the democratically accountable parts of government. The question of media plurality is, however, different. It is tied up with issues of power – namely who can own the media (and how much of it can be owned by one person). The media often legitimizes its power by claiming an ability to act as a check on politicians. While some newspapers may favour and give preferential coverage to a particular politician, plurality means that other titles out there may take a more critical stance. That check can be undercut if the minister uses a discretionary power to win favour from a particular media outlet, and give that outlet an advantage over its competitors. In other words, as media plurality is a component of a system that holds the government to account, we should be cautious about giving the government control over the composition of that system in specific cases (as opposed to formulating general rules on plurality).

Giving Ofcom the power to initiate an investigation is just one option. The Coordinating Committee for Media Reform proposes (along with a range of other media reforms) that the public interest investigation should be triggered automatically when a proposed merger meets a threshold of the market share. That approach would take a step away from the current reliance on discretion, whether from a politician or a regulator. Initiating investigations either through Ofcom or a thresholds approach would be an important step, but more may be necessary. In the case of Jeremy Hunt, the public interest investigation was already under way when he became Culture Secretary, and the issue was whether to refer the matter to the Competition Commission. The question is then whether the political discretion should be limited at that intermediate stage too, for example by letting Ofcom decide whether the merger should go on to the Commission.

The questions surrounding Jeremy Hunt both in relation to the Ministerial Code and media plurality raise parallel issues about the role of politicians in the very processes that are supposed to hold them to account. The reforms discussed here would not remove politicians from the processes altogether, but would at least stop them deciding when the wheels can be set in motion. That, I believe, would be a step towards a stronger system of political accountability.

Jacob Rowbottom is a Fellow of University College, Oxford. 

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Jacob Rowbottom: Press independence and the Leveson Inquiry

The view of the press as the ‘fourth estate’ is sometimes described by media historians as a myth created to legitimise the press in the nineteenth century. It has nonetheless had an enduring role in debates about press freedom. While the meaning of the term ‘fourth estate’ seems to have changed over the years, now it is commonly used to refer to the watchdog and checking roles of the press. In debates the term is normally used to argue against any regulations of the press. However, I argue the fourth estate/watchdog argument explains a problem with the current press in the phone hacking scandal. That view of the press might even point to the introduction of some controls on the media. Before getting to that argument, I first want to look at the way the fourth estate/watchdog was advanced at the recent Leveson Inquiry preliminary seminars. The seminars are not part of the formal record, but brought together a number of media professionals, experts and academics to help define the issue for the inquiry.

Most of those representing the press at the Leveson seminars made clear their opposition to a statutory regulator of the press – no surprise. What interested me were the justifications for press freedom. Alan Rusbridger, editor of the Guardian, told the seminar:

‘The press is sometimes called the fourth estate and that is probably too grandiose a concept for most journalists’ tastes but it does suggest an important, coherent and independent force in society. That apartness is crucial. The press doesn’t share the same aims as Government, the legislature, the executive, religion or commerce, it is or it should be an outside.’

He referred to the hacking scandal to illustrate the importance of press freedom – where the ‘normal checks and balances in civil society’ (the police, the Press Complaints Commission and Parliament) failed, the Guardian was able to step in and cover the abuses. Under this view, the press uses its resources to investigate and hold the powerful to account.

While not using the language of the ‘fourth estate’, many other participants at the seminar stressed the importance of press independence and the idea that the news media can act as a check on government. Paul Dacre, editor of the Daily Mail, said that most journalists work hard to ‘give voice to the voiceless and expose the misdeeds of the rich, the powerful and the pompous’ and that to over-regulate the press would put ‘democracy itself in peril.’ Former News of the World editor Phil Hall said that a government-appointed regulator would ‘inevitably increase the pressures on editors to give governments a wide berth, when surely their role is to question and hold to account our leaders and politicians.’

That approach to press freedom holds the press out as something separate to other speakers. It is an institution that requires freedom to perform a role for the public benefit. As Alan Rusbridger again said:

‘A free press is anyway not there for the benefit of a group called journalists. It’s primarily there for the benefit of ordinary citizens.’

Similarly, Trevor Kavanagh, associate editor of the Sun, told the seminar that ‘biggest loser of all, if we go further down the road of regulation, is the British public.’ By making these points, the rights being asserted are not ordinary free speech rights, but a separate right held by an institution.

Ronald Dworkin has warned that such a line of argument actually weakens the position of the press and provides a poor strategy when arguing against regulation. By premising press freedom on its contribution to the public benefit, it is something to be balanced with competing claims in the public interest. (see A Matter of Principle, p.387). According to Dworkin, the argument is one of policy rather than principle and is not a trump. By pursuing this line of argument, the press are opening themselves up to arguments that they should be subject to responsibilities. This is less problematic in the European setting where Article 10 of the ECHR allows for competing claims to be taken into account. Furthermore, even if the watchdog justification does open the door to some balancing, its advocates say it provides a strong argument that should outweigh the competing considerations.

The key argument underlining the watchdog function is that the press as an institution must be independent. While there is debate about whether this means independence from advertisers and other commercial pressures or from subsidies from moguls and oligarchs, most agree that it means independence from government. In the Leveson seminars, these arguments have been used to warn against further regulation of the press as a response to the hacking scandal. However, the importance of press independence underlines one of the central problems of the hacking scandal. The hacking of phones did not occur due to an absence of laws. Legislation was already in place prohibiting the practices of the private investigators. The question is why those laws were not enforced?

The answer to that is one of the matters Leveson will consider, but a lack of press independence and separation from government is one possible explanation. A part of the press became too close to politicians and the police. This gave the press a chance to lobby, apply pressure and thereby make any further investigation by politicians and the police into the hacking less likely. At the Leveson seminars, Damian Tambini (London School of Economics) and Ivor Gaber (City University) raised the possibility that journalists acted with impunity because they believed they would not have to face any consequences for the actions, as a result of their close relations with government. Tom Watson made an argument along similar lines in the House of Commons in 2010, when he said of the tabloid press:

‘They laugh at the law; they sneer at Parliament. They have the power to hurt us, and they do, with gusto and precision, with joy and criminality. Prime Ministers quail before them, and that is how they like it.’

It is that power to ‘hurt’ that is thought to give the press leverage, which discourages officials taking actions for their wrongdoings.

So the normal boundaries between press and politics were breached, but in this account it was the press that were able to bully or pressure government rather than vice versa. Should this be a concern from the perspective of press freedom? Could it be taken to mean that Murdoch reflects the ideal of press freedom, in so far as he can stand up to politicians? I would argue not and that such leverage over the political sphere is deeply problematic if we are concerned with the press as an independent check on government.

First, if the press are treated favourably by officials, then it may be asked what are the press doing in return and how does this affect the coverage of those officials? Secondly, if the press has strong lobbying power over the government and potentially has disproportionate influence on areas of policy, then it ceases to act as a check on government power. Just as Berlusconi’s media empire is not the most vigorous check on the Italian premier, News Corp’s credibility as a watchdog is jeopardised in a system where Rupert Murdoch is (to quote Lance Price) treated like a Cabinet member. Where the press has such political influence it becomes a participant in the political process with its own policy preferences to pursue – it is closer to a pressure group (whether for corporate or ideological goals) rather than institution with specific role in scrutinising the powerful.

An emphasis on the watchdog function and the independence of the press might point to some reforms or regulations that promote separation from government. I don’t think full separation is possible or desirable (and in my view that is a problem for the watchdog account). The press will always need to develop contacts with politicians for their stories and the politicians depend on the press to carry their messages. That is healthy, but some steps might be considered to draw a boundary.

First are transparency measures. There have been steps towards this with the Freedom of Information Act and government disclosure of information, but more could still be done. A more formal system of publishing information about lobbying, which the Coalition has promised, would shed more light on the influence of the media on policy making. This would cover those instances where a newspaper proprietor or editor speaks with a minister to discuss policy. The disclosure obligations need not be limited to politicians. For example, George Monbiot recently proposed that journalists disclose their sources of income on a on a register.  There are, however, shortcomings to disclosure strategies. Much communication between politicians would still take place off the radar, such as off the record briefings between a politicians and journalists.

Second is to focus on the ‘revolving door’, in which former officials go on to work for the media and those in the media go on to work in government. Just as former ministers are given a cooling off period before they can take up jobs that involve lobbying, a cooling off period could be imposed before former officials can work in the media and media professionals work in government. That might curtail the potential conflicts of interest that can arise if officials or journalists cosy up to one another to secure future employment. This strategy raises problems of its own. There are some jobs in government for which journalists are thought to be well qualified, such as in press relations. Furthermore, would such a prohibition stop a politician writing for a newspaper? If so, then the rule would be overly restrictive and might stop some important communications from politicians. Others might think they do too little and only curtail one type of connection between media and the press.

A third area concerns the power of the press. Arguments for the press as an institutional check on government suggest the need for a strong media that is not intimidated by the government and is well resourced. On this view, the concentration of the press is not a bad thing if it gives the newspaper a strong base from which to perform its function. There is, however, a need to ensure that there is a multiplicity of voices in the media and competition between media outlets. That way, it is hoped that the different newspapers will provide a check on one another, a point that Rusbridger mentioned (although the track record of newspapers actually doing this is questionable). More importantly, more diverse ownership would also limit the power (actual or perceived) of any media company and possibly reduce its leverage over politicians. The questions about media ownership have a role to play in separating the press and politicians.

The watchdog argument for press freedom has a long history. Personally, I think it is just one argument among several and need not dominate the discussion. However, if the argument is to be taken seriously (as many editors seem to wish), then we should follow its logic and think about ways to secure the independence of the press and keep it separate from government. That may not point to an absence of regulation.

Jacob Rowbottom will be taking up a fellowship at University College, Oxford in the new year.

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Carol Harlow: Press, Police and Parliament

So the silly season is back with a second instalment of last year’s soap opera but with the two main protagonists, Politicians and Press, in different stances! The Daily Telegraph, last year’s Press champion in the great parliamentary expenses row, has retired wearing the victor’s crown of investigative journalism. It leaves the field to the News of the World – suddenly, after more than a century, an ex-tabloid. Rupert Murdoch, most powerful of media magnates, is very much on the back foot, humbled and betrayed, as he told the Culture, Media and Sport Select Committee of the House of Commons (CMSC) (Phone Hacking – uncorrected evidence: HC 903-ii 20 July 2011), by unknown employees at the NoW. Rebecca Brookes and Andy Coulson, both editors of the NoW at a time when the hacking of private cell-phones – unforgivably including that of missing schoolgirl Millie Dowler during the course of what became a murder investigation – was allegedly taking place, deny all knowledge, as does James Murdoch, chairman of News International. The first two have since been arrested, bringing into issue the PM’s involvement with Coulson, who worked as communications director at Number 10 until his resignation in January this year after allegations of involvement in phone-hacking.

This enthralling soap opera is really no more than an instalment in a necessary debate over press freedom, press accountability and privacy that we have never really held. Looking back at debates on the Human Rights Bill, we find Jack Straw announcing to the Commons that the Labour Government had no plans to legislate on privacy; the matter was best left to the judges [HC Deb. 22 December 1997 vol. 303 cc639-40] Fierce lobbying ensured that press freedom was strongly emphasised in debates on the Bill and we find explicit reference to the importance of freedom of expression and need to protect the publication of ‘journalistic material’ ‘in the public interest’. No attempt was made to define that slippery phrase. No regulatory machinery was put in place; the field was left to the purely voluntary Press Complaints Commission (PCC). Unsurprisingly, the judiciary at first moved with circumspection. But Eady J’s recent decision in the action brought by Max Mosley against the NoW (Mosley v News Group Newspapers Ltd. [2008] EWHC 1777) that publication of material about the ‘private personal life’ of public figures, especially if obtained by covert surveillance methods, is not automatically covered by a ‘public interest’ defence but is actionable and can be restrained by injunction provoked a forthright attack on the judiciary from Daily Mail editor Paul Dacre. There was a further outcry when the use of so-called ‘super injunctions’ to bar publication of items concerning the private life of celebrities was revealed (see http://www.parliament.uk/business/news/2011/may/injunctions). The revelation culminated in an unseemly episode in which individuals were named in the House of Commons by John Hemming MP in a use of parliamentary privilege condemned by many parliamentarians as improper. The CMSC had previously issued a report on Press standards, privacy and libel (HC 362, 2009-10), which dealt at some length with phone-hacking. It was this that enabled the CMSC to call for new evidence from the Murdochs which, fortunately, they agreed to give.

The backcloth against which the current soap opera is being played out is one of rapid technological advance that has made intrusive invasions of privacy almost effortless. We have, as the Information Commissioner has put it, been ‘sleepwalking into a surveillance society’ where surveillance is considered acceptable [ICO, Surveillance Studies Network, A Report on the Surveillance Society: Full Report (2006).  People are happy to post intimate details of their lives and other people’s secrets on social networking sites. Relationships are conducted and news exchanged by blogging, twittering and tweeting. Transparency is the ultimate virtue. In the case of TV and broadcasting, freedom to publish is balanced by a measure of accountability. Ofcom, the statutory regulator, can intervene to protect people from being treated unfairly in television and radio programmes and from having their privacy invaded.  As already indicated, no such statutory machinery is in place in respect of the press; the Press Complaints Commission (PCC) is wholly dependent on voluntary submission to its tenuous authority. It has no sanctions at its disposal. In the NoW phone-hacking affair, the PCC had to admit that it had been misled and its Chairman (Baroness Buscombe) conceded that the present informal machinery was inadequate:

“The status quo is clearly not an option, and we need to identify how the model of an independent PCC can be enhanced best to meet these challenges. Hence the action we have taken today.”

(Statement from the PCC on phone hacking, 6 July 2011)

Does this go far enough? Has the time come for a statutory regulator? This is the question that faces the Leveson inquiry set up to:

 “inquire into the culture, practices and ethics of the press; its relationship with the police; the failure of the current system of regulation; the contacts made, and discussions had, between national newspapers and politicians; why previous warnings about press misconduct were not heeded; and the issue of cross-media ownership. [Lord Justice Leveson] is to make recommendations for a new, more effective way of regulating the press—one that supports its freedom, plurality and independence from Government, but which also demands the highest ethical and professional standards. He will also make recommendations about the future conduct of relations between politicians and the press.”

(The Prime Minister, David Cameron, HC Deb, 13 July 2011, col 311).

The Leveson Inquiry has a second task for which its powers under the Inquiries Act 2005 to summon witnesses and take evidence under oath and in public may be more appropriate: to examine the extent of unlawful or improper conduct at the News of the World and other newspapers, and the way in which management failures may have allowed it to happen and to look into the original police investigation of phone-hacking and allegations of corrupt payments to police officers, with implications for the relationships between newspapers and the police. These allegations have already claimed the heads of two of the Met’s most senior officers, Commissioner Sir Paul Stephenson and Assistant Commissioner John Yates In response, Theresa May, the Home Secretary, has asked for an inquiry by the Independent Police Complaints Commission (IPCC) into the p hone-hacking investigation; a further inquiry into the powers of the IPCC; an inquiry by Elizabeth Filkin, previously Parliamentary Commissioner for Standards, on ‘ethical considerations concerning relations between the Met and the media’; and  an inquiry by the Inspectorate of Constabulary into police corruption generally (see HC Deb 18 July 2011, Col. 622).  To date the phone-hacking scandal has spawned twelve – thirteen if one includes the Speaker’s inquiry into how shaving foam came to be thrown at Rupert Murdoch in a House of Commons committee room – many of which seriously overlap. How effective are they? Do they primarily serve to deflect public wrath when things go wrong? (C Harlow and R Rawlings, Law and Administration (Cambridge University Press, 3rd edn 2009, ch. 12).

What the government has notably not done is to halt the passage of its Police Reform and Social Responsibility Bill, which introduces elected police commissioners to whom chief constables will henceforth be accountable (See Baroness Browning, HL Deb, 18 July 2011 Col. 1116). The Bill is currently paused after Third Reading in the House of Lords and returned to the House of Commons for consideration of a Lords ‘wrecking amendment’ (see HL Deb 11 May 2011, Col. 895) It is too much to hope that this will prove an opportunity to abandon a measure very widely seen as a dangerous and inappropriate politicisation of the police leading inevitably to a serious dilution of police independence and of real accountability. Surely such a measure, which breaks with a fundamental constitutional convention, could at least await the outcome of the Leveson Inquiry? And is a judicially-chaired public inquiry, even with the aid of a reasonably high-powered advisory panel*, really the most appropriate forum to debate wide-ranging matters of policy such as press freedom or police independence? The Leveson Inquiry is effectively acting as a Royal Commission. It might be better to make it one.

 

Carol Harlow is Emeritus Professor of Law at the London School of Economics

 


*  The panel consists of Liberty Director Shami Chakrabarti, former West Midlands police chief Sir Paul Scott-Lee, ex-Ofcom chairman Lord David Currie, former Channel 4 News political editor Elinor Goodman, ex-Daily Telegraph political editor George Jones and former Financial Times chairman Sir David Bell.

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