Press regulation: we’re stuck, please help

Sir Brian Leveson cut an impressive figure in his recent appearances before two parliamentary committees, one inquiring into inquiries and the other monitoring the media. The appeal judge was appointed president of the Queen’s Bench division at the beginning of this month, making him deputy to Lord Thomas of Cwmgiedd, the new lord chief justice. If Thomas serves his full four years before reaching retirement age, Leveson will by then be less than two years away from his own 70th birthday. That means he is unlikely to become chief justice.

But Leveson still has a big job ahead of him. It is because he is more interested in his future as a judge than his past as an inquiry chairman that he refused to share his opinions with the Commons media committee. Couldn’t you have answered just a few questions from members of the press at the launch last November, asked Tracey Crouch MP plaintively. Wouldn’t that have allayed some of the fears and the hostility of the industry?

‘I provided a report that is almost 2,000 pages long,’ Leveson retorted. ‘I provided an executive summary that’s 46 pages long. And I provided a summary of that at the launch which was eight pages long. Nobody can be in doubt about what I thought.’

But Crouch didn’t give up. Journalists might have wanted to ask you a few questions about the future of their industry, she suggested.

Leveson reminded the MP that he was quite used to making decisions about people’s futures. It would be inconceivable for him, after giving judgment, to ask if anybody in court had any questions for him. ‘That is exactly how I feel about this report.’

It was not very edifying to see MPs telling Leveson that they were stuck and needed his help to reach a deal with the press. As judges often say when they are asked to make policy decisions, these are matters for parliament.

And, for once, the MPs are united: the Department for Culture, Media and Sport said that the revised draft royal charter it published on 11 October had been agreed by the three main political parties at Westminster. But what emerged very clearly from Leveson’s evidence a day earlier was that the draft charter had never been agreed by him.

It was not only that he had never recommended a charter. None of his witnesses, including ministers, had even suggested it. He recommended legislation. But this would not have amounted to statutory regulation of the press. What Leveson proposed was independent press regulation, organised by the press itself, with a statutory process under which the new self-regulatory body would be recognised. His recognition panel would decide whether a self-regulatory body met required standards.

Leveson had also recommended a series of financial incentives for publishers who subscribed to his new regulatory body, such as a low-cost arbitration service. ‘In order to give effect to the incentives I have outlined,’ Leveson said in November, ‘it is essential that there should be legislation to underpin the independent self-regulatory system and facilitate its recognition in legal processes.’

David Cameron said he was against statutory underpinning. Instead, the government proposed that the recognition panel should be incorporated by the grant of a royal charter, a process that dates back to the 13th century.

But the royal charter itself is underpinned by legislation. Section 96 of the Enterprise and Regulatory Reform Act 2013 says ministers can’t amend or dissolve such a charter unless they comply with its own terms. Those specify that the charter can’t be amended without a two-thirds majority of those voting in each house of parliament. However, section 96 itself could still be repealed on a simple majority.

And there had to be legislation to provide Leveson’s incentives. Section 34 of the Crime and Courts Act 2013, not yet in force, says that exemplary damages may not be awarded against a ‘relevant publisher’ over publication of ‘news-related material’ if the publisher is a member of an ‘approved regulator’. To be approved, a regulator has to be recognised by a body established for the purpose by royal charter.

But newspapers won’t give up without a fight. Their representatives complained that the royal charter was written by politicians. Indeed it was. How, asked the Newspaper Society, could a regulator be voluntary or independent if it was operating under rules imposed by politicians? The answer is that although the regulator will have to meet recognition criteria laid down by politicians, politicians will not write its rules or choose its members.

Unless we are going to keep the current system of voluntary regulation, this seems to be the least worst option. But it’s significantly different from what Leveson recommended. And you can see why he wants nothing more to do with it.