Lessons from Leveson

‘Why should the press agree to fund and support a regulator that would stop it making money, as the Leveson inquiry proposed?’

Jurisprudence Media UK Politics Westminster

The Leveson inquiry was set up to examine the culture, practices and ethics of the press. Its report soon led to an examination of the benefits, drawbacks and ethos of the law. Little more than an hour after Lord Justice Leveson had called for a “cross-party response” to his recommendations, the Prime Minister declared himself opposed in principle to “writing elements of press regulation into the law of the land” while the Liberal Democrat and Labour leaders offered their unqualified support for such legislation. However, it was not long before the politicians started to coalesce around a common approach.

Leveson had called for independent self-regulation of the press. One can argue that this phrase is a contradiction in terms—if the press regulates itself then its regulator is not independent-but the judge’s plan was clear enough: a regulator funded by the press but run by an independently appointed board with a lay majority and with no serving politicians or editors among its members. There was broad support for such a body, as well as acceptance within the industry that the existing Press Complaints Commission did not satisfy the Leveson test.

Why should the press agree to fund and support a regulator that would stop it making money? After all, Richard Desmond’s Express newspapers are not even part of the existing—ineffective—complaints commission. Leveson’s answer was the classic stick-and-carrot approach. The incentive would be a low-cost arbitration system to resolve complaints; those not prepared to join might end up paying exemplary damages in the courts. But carrots alone would not do the trick. Leveson’s big stick was legislation. 

Crucially, though, the Leveson Act would be no more than “statutory underpinning”. The regulatory body would not be created by Parliament: it would be designed and established by the industry itself, would have to decide whether the regulator had met the required standards and would also have to keep the regulator under review and ensure that standards did not slip. Parliament’s role would be limited to setting out the standards and establishing the recognition body.

What, though, would happen if a regulatory body failed to meet the prescribed standards or if a significant publisher chose not to be part of it? In that case, Leveson was forced to conclude, a statutory backstop regulator would be required. It would need powers to carry out investigations, require corrections and levy fines. This compulsory backstop was not supported by the director of Liberty, Shami Chakrabarti, one of Leveson’s six assessors.

At first, David Cameron appeared to rule out legislation of any sort. He argued that it would “create a vehicle” for politicians to impose regulation on the press. He was also concerned that the legislation to underpin the regulatory body would be “complicated”. It certainly would be but that is no reason for not bringing it in. It seemed that Cameron had no stick left to wield when he called newspaper editors to Downing Street and urged them to bring in effective self-regulation as a matter of urgency. But then, according to The Times, “he issued a clear threat that he would legislate if the industry failed to reform itself”.

So the editors came up with a plan, accepting most but not all of Leveson’s recommendations. But who was to decide whether their scheme was effective enough? Leveson’s suggested recognition body was Ofcom, the broadcasting regulator. But the editors rejected that idea, presumably because Ofcom’s chairman and non-executive directors are appointed by the government.

On their visit to Downing Street, the newspaper editors had been told by Oliver Letwin, the Cabinet Office minister, that the government was creating its own recognition process. There would be an “unimpeachable, impartial” individual or body which would certify that the new press regulator was compliant with Leveson in all respects, the Guardian reported. This “ironclad” system—operating outside statute, “but independent beyond a shadow of doubt”—could also appoint the regulator’s first chairman.

The Times was very keen to bring in the judges, suggesting that either the Lord Chief Justice or a panel of lawyers appointed by him could oversee the industry regulator. But judges cannot operate in a vacuum. Somebody has to set the standards by which the regulator is to be judged. Should that be Sir Brian Leveson? Or Parliament? And if Ofcom is not sufficiently independent, why should a government-established body-even with judicial involvement-be any better? Surely some legislation would be required, if only to set up the low-cost arbitration service that the press apparently supports? Newspapers may no longer be marking their own homework, but more prep is clearly needed.