So the politicians have called upon the editors to find a solution to press reform. The two bodies whose interlinking interests have most concerned Leveson-watchers are once again trying to clean up their act, without any intervention from any of the multitude of independent organisations who have an interest in the future of regulation.
Lord Leveson called this kind of arrangement: “the press marking its own homework”. But the press hope to go further. They are intent on appointing a retired judge to ‘regulate’ them. This, as City University lecturer Lis Howell remarked at a Leveson ‘Speed Debate’ on Wednesday, would be a case of the press appointing the head teacher to oversee the marking of their own homework.
The press, Hugh Tomlinson QC (of Inform) told the audience, have agreed only to about fifty per cent of what Leveson required of them. One thing they have accepted is the need for a conscience clause protecting journalists from writing stories that they find ethically untenable. But they have entirely repudiated the point he made that the system would need to be legally constituted if its rulings are to be recognised by a court.
Leveson recommended a system similar to that suggested by Media Reform. However, where Media Reform wants an adjudication tribunal – capable of providing judgements that would be accepted by a higher court – Leveson has opted for an arbitration system, This would be backed by an amendment to the Civil Proceedings Rules requiring courts to take arbitration results into account in any future action.
But Tomlinson doesn’t think this goes far enough. Neither does Alastair Brett, managing director of Early Resolution; both gave evidence to Leveson and have considerable experience dealing with media law. For the editors, on the other hand, any mention of legal underpinning is going too far. They are determined that the only law invoked will be the law of contract, entered into by individual agreement.
Why do these differences matter? As Leveson himself has said, only legal underpinning will produce a body that can be recognised by the courts. Such a body would protect the interests of ordinary people by providing them with free access to judgement and some measure of redress, including a right of reply or apology, where their interests have clearly been damaged.
It would also protect investigative journalists by the simple expedient of recognising the defence of ‘public interest’. Leveson recommended that companies or individuals who use the threat of court action as a form of harassment to prevent investigation of their affairs should instead be encouraged to use the arbitration service. If they opted for court action, however, they would be unable to recover costs. This ‘incentive’ would have opened up real protection for small organisations who do not have access to funding in order to fight legal action.
Under the PCC Mark 2, publications would be bound together by means of a civil contract. As there seems to be no real prospect that the new body would be genuinely independent of the press and Parliament (as Leveson recommended) and it would not have a foundation in statute, it could neither provide the necessary redress to victims (there would, for example, be no power to direct corrections or apologies) nor would it provide protection for investigative journalists. There is therefore no particular incentive for anyone to join it at all.
Of course the editors have some genuine causes for concern. It was not helpful for Leveson to remove journalists’ privileges in relation to data. Those who misuse data with no public interest defence would have been dealt with severely under the new system (as they will be under the existing law). There was no reason to create higher hurdles for those undertaking journalism with a social purpose. That form of journalism was never the target of anger at the Inquiry and it should not have been dragged into the debate.
It was also very unwise to attempt to clarify the murky relationship between journalists and their sources. Those who have not worked in the industry may hate the fact that journalists have unattributed briefings with unnamed people but there is no way that the Guardian would have been able to expose the wrong-doing at News International without back-channels. Journalists don’t have the privileges of police or lawyers and they will always have to work in the dark with the ever-present risk of being wrong.
Leveson should never have offered up such hostages to fortune. He should have kept the target clearly in his sights, gunning only for those who breach privacy for the sake of profit and offering clear protections for those who are working to improve democratic accountability by shining a light where others would rather the lights were turned off.
The ball is now back in the commons where officials are working overtime to put together a bill so utterly unworkable that it will be resoundingly rejected.