Press regulation: taking Leveson to heart

http://www.guardian.co.uk/commentisfree/2012/dec/02/leveson-report-press-regulation

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Lord Justice Leveson is off – putting 10,000 miles between himself and the simmering debate he has left behind. As he lectures in Australia, editors and politicians have to grapple with the problems he has spent a year exhaustively considering. The prime minister and much of the press did not agree with some of his recommendations. But it is simply not possible to return to the world before Leveson and act as though nothing has changed. So rather than beginning the debate on where the major differences are, it may be more productive to first examine where there may be common ground.

One possible starting point for the press and politicians would be to accept the rest of the Leveson report in full. This approach would require the press, in particular, to acknowledge the force and logic of much of his argument and to explain how it proposes to meet his challenges – including the central test of whether it is possible to achieve effective, independent regulation – without the use of statute.

Leveson acknowledged the industry has already travelled some distance in reforming the old, discredited Press Complaints Commission by outlining a new body with real sanctions and investigatory powers. But he did make detailed and substantive proposals in these areas where the press had been unwilling to go for example on transparency, and third-party and group complaints.

The real problem however is around the question of independence. While this idea commanded wide support in principle, three publishers – the Guardian, the FT and the Independent - all signalled significant concerns about the lack of independence in the Hunt-Black plan. For his part, Leveson made it plain he did not think the proposals "came close" to what he considered to be true regulation. He thought the planned "Industry Funding Body" (IFB) – a multi-tentacled octopus at the heart of the regulator – had too many powers of control and appointment. More fundamentally, he felt that the plan to bind newspapers in by contract was complicated and unstable, and contained a "degree of built-in failure". The press would be ill-advised to disregard all these concerns and plough on regardless.

What about Leveson's alternative? Central to Sir Brian's plan for voluntary regulation organised by the press was the incentive of an arbitration system that would be recognised by the courts. This would create a quick and cheap way of resolving legal disputes, including libel and privacy. Anyone outside the system – whether newspapers refusing to join or claimants going directly to court – would risk real financial penalties. Similarly, anyone using the system could reap real rewards. These are powerful carrots and sticks and surely worth the press pursuing.

What is required to make them work? Can these incentives be achieved without any amendment to statute, or are the civil procedure rules enough? Would judges need some assurance that the industry regulator was credible? The distinguished QC David Pannick told the Times at the weekend that it would certainly be open to the industry to run its own arbitration system, but there would be no obligation on complainants to use it, and that an approved scheme with "parliament's blessing" would carry more weight with the courts. These are technical questions – but they need serious attention.

If these legal carrots and sticks can be made meaningful; if all major publishers sign up; and if the press's own regulator is demonstrably independent – as it patently isn't under the current Hunt-Black plan, with the giant octopus of IFB appointment and control at its heart – then a final question remains: how can the body be certified as credible, not only at its inception, but on an ongoing basis?

Leveson thinks the best answer to this question is Ofcom. He believes it has the distance, authority and expertise to satisfy people – including parliament and the courts – that the press's own regulator is (finally) to be trusted. Others, including the editor of the Times, James Harding, have proposed a different kind of oversight panel, appointed by the lord chief justice . We don't think the press should welcome serving judges appointing anyone to oversee them. But there is mileage in the general idea. One could image an audit panel comprising (say) the soon-to-retire lord chief justice, Igor Judge; the director of Liberty, Shami Chakrabarti; and the former editor of ITN, Stewart Purvis, bringing a rigorous eye to the governance and workings of any regulator, in a way that would command the respect of the courts.

It should theoretically be possible, in other words, for the press to take Leveson to heart and design a body – truly independent, fully certified and regularly audited – that met the overwhelming majority of Sir Brian's tests. That doesn't mean Lord Hunt consulting political grandees (one of them pocketing a huge retainer from News International) about a shadow appointments board as though Leveson had never happened. It means a genuinely open process under Nolan rules.

It may even be possible to achieve most, if not all, of these proposals without the use of statute. That will not satisfy those who – perfectly reasonably and sincerely – believe in full statutory underpinning. But it will show that the industry is serious about the lessons of Leveson.