affiliated to the International Association of Constitutional Law
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.  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.