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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 819- iii
House of commons
TAKEN BEFORE THE
Culture, Media and Sport Committee
regulation of the press
Tuesday 19 March 2013
MAX MOSLEY, PROFESSOR BRIAN CATHCART and hugh tomlinson qc
Evidence heard in Public Questions 234 - 362
USE OF THE TRANSCRIPT
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Taken before the Culture, Media and Sport Committee
on Tuesday 19 March 2013
Mr John Whittingdale (Chair)
Mr Gerry Sutcliffe
Examination of Witnesses
Witnesses: Max Mosley, and Professor Brian Cathcart, and Hugh Tomlinson QC, Hacked Off, gave evidence.
Q234 Chair: Good morning. This is a further session of the Committee’s examination of Lord Justice Leveson’s report on the issue of regulation of the press. I would like to welcome back Professor Brian Cathcart and Hugh Tomlinson QC, representing Hacked Off, and also Max Mosley. I will start by asking you to give a general reaction to what happened in Parliament yesterday.
Hugh Tomlinson: I think there is a very strong consensus among the politicians around a Royal Charter and the bits of supporting statute, which I think everybody agrees were necessary to implement Lord Justice Leveson’s recommendations. There were obviously some long and difficult negotiations, but in the end everybody coalesced around something that we think will provide a workable way forward.
It is very important to understand-and some of the press commentary today perhaps has not understood-that this is only the first phase. What was done yesterday is to facilitate a system, set up a recognition panel. Nothing is being imposed on anyone. The recognition panel is there and available. It will open its doors one hopes within a relatively short time, and then it will wait for the press to approach it with a proposal that it will consider whether or not meets the Leveson recommendations. The ball is now in the court of the press, and I think everybody hopes that we can proceed in a spirit of co-operation.
From the Hacked Off perspective, we have spoken to many of the victims of press abuses since the debate in Parliament, and I think everyone is very pleased with the way that the political parties have now dealt with the position. Brian, I don’t know if there is anything that you-
Professor Cathcart: No, that sums it up.
Q235 Chair: I seem to recall you were, initially at least, somewhat sceptical about the Royal Charter idea.
Professor Cathcart: We were, yes. The background is that we were set up to campaign for a public inquiry, and when the public inquiry came along we supported and reported the inquiry, certainly rather more fully and robustly than many of the newspapers did. When the report came out we felt that this inquiry and this report ought to be implemented, on the basis that it was a solution to something that-as I have said to the Committee before-politicians would find difficult to deal with and that the public would be sceptical of political involvement with, and we felt it was also a good and fair solution. Lord Justice Leveson said implement by statute, a one-off and pretty succinct statute it would have been, and we favoured doing what he recommended. The Royal Charter seemed to be a roundabout way and a rather odd way, and I don’t think there was anybody who, when it was first suggested, did not raise an eyebrow of surprise. We were sceptical, but we were persuaded in the end.
Q236 Chair: Would you say that the solution that was reached does deliver everything you want or is it an acceptable compromise a little way short of your preferred option?
Professor Cathcart: It is an acceptable compromise. There are points in it where changes have been made from Lord Justice Leveson’s proposals. We have thought hard about them, but we think that a workable system could result. I think there are still some elements to be looked at, and we hope that they will be looked at before the House of Lords deals, for example, with the exemplary damages and costs issues, and I think it was acknowledged last night that those are still not in a perfect state. However, broadly speaking, this is a package we can live with, yes.
Hugh Tomlinson: Could I add one thing, which is a matter of some regret to us? Lord Justice Leveson recommended that statute be used for three reasons. One was to set up a recognition body. That has been dealt with by the Royal Charter. The second was to provide incentives. The third was to provide, for the first time in English law, an express guarantee of media freedom. I saw, I think just yesterday, that Harry Evans, the distinguished former editor of the Sunday Times repeated that he thought that that would be a very useful provision and one that would have helped him in his fights over investigative journalism when he was at the Sunday Times. Such a guarantee exists in the law of many other European countries, and it seems to us that the press have got themselves into an entrenched position where they say, "We don’t like statute, full stop," without actually considering the merits. The clause that was proposed about media freedom has no negative sides at all for the press and would have been of positive benefit to them. That has gone in the course of the discussions, because we said to the Government, "Look, this is what Lord Justice Leveson recommended," and the Government said, "Well, the press don’t want it so we are not going to press it further." We think it is regrettable that the press’s position has got them into not supporting something that, on analysis, would have benefited them.
Q237 Chair: Is it not to some extent delivered by article 10?
Hugh Tomlinson: It is to some extent but, as many people have pointed out, article 10 does not mention the press, so any rights that the press get from article 10 have to be got by implication. There are all kinds of examples you can think of, but if you have an express right to press freedom it means that public officials, when considering, for example, providing access to courts or providing documents, have to take the interests of the press into account. Taking the interests of the press into account is something different from a general interest in freedom of expression.
Q238 Chair: If that is the case, why are the newspapers not all clamouring for this to be-
Hugh Tomlinson: I am afraid I think the newspapers have got themselves into a position where they have, in their minds, equated statute with censorship and therefore can’t see the benefits that are facing them. It is just an entrenched position that they have not thought through.
Professor Cathcart: There has always been a call for an equivalent to the First Amendment, but of course the First Amendment is statute.
Chair: Indeed. Max?
Max Mosley: I think there are two really important elements that have come out and are already there, if one forgets the sort of detail for a moment. The first is that with what was voted yesterday we are going to have the rules enforced. I think that was one of the first big problems in the previous regime, that the rules themselves were not that bad but they were never enforced. So that new element is extremely important.
The other very important element is that, as I understand it, Leveson now gives access to justice for no cost, and that is so important. The costs of libel and defamation actions put them beyond the reach of almost everybody, and now his, I think, very ingenious solution says, "Here is the arbitral system if you wish to use it. If you want to stay outside and you don’t wish to be part of the regulator and use our arbitral system, the courts will still deal with it, but the courts now have the right to award costs to the complainant even if the complainant loses, providing it was a serious case." That really means that the ordinary victim can either go to the arbitral system free of charge or go to court without huge risk of costs, so their legal rights are protected; but equally, at the same time, the rights under the editors’ code are also then going to be enforced. I think those two things in combination change the climate completely and are actually in the interests of the press because when they finally make their mind up-which I am sure they will-that it is more economical to be part of the regulator than not to be part of the regulator, they will save vast amounts in legal costs themselves.
It seems to me a win-win, and I completely endorse what Lord Hill has said, that they had got themselves into a frame of mind where anything remotely legal was somehow a great threat to their freedom, which is simply not the case. I think the quite ingenious solution that has been, first of all, proposed by Leveson and then taken one stage further by Parliament, which is to distance the element that stabilises-if I can say that-the Royal Charter from any sort of legislation about the press, works very well.
Q239 Chair: Would you have used the arbitral arm had it been in existence?
Max Mosley: Yes, I would. When I first sued the first thing the lawyers said to me was, "They will make you a part 36 offer, and if you refuse it, you’ll end up paying all the costs." I said, "Well, what is that?" and they said, "More or less £1 million." That is quite frightening, and then even if you win the case-because they would simply offer more than a reasonable judge would give. They did not do it in my case because I think they thought I would take the money and run. In fact, I had made my mind up to get them into the witness box whatever it cost, so that was a different situation. If I had had the arbitral arm, I would have been completely relaxed about it. There would have been another great advantage as well, which is, as I understand it, the arbitration proceeding would have been in private. Obviously, it would have all been published afterwards if I had lost. But, at the moment, you have this completely mad paradox where you sue for breach of privacy, the action comes in front of a court, that which you wish to keep private is canvassed all over again in court, in all the papers, so you then have a double dose. As I have said many times, it is as if you sued somebody for breaking your leg and the first thing the court does, when you go to court to sue for it, is break the other leg, and it is obviously not a good way of going on. I think the arbitral system gets around that.
Q240 Philip Davies: It is really quite disingenuous of Hacked Off to come here and claim to be the champions of a free press, isn’t it? It is quite laughable that you come here and say that the only thing you are disappointed about is that it has left the press not as free as you otherwise would have liked. You are not really being serious when you try to come out with that line, are you?
Professor Cathcart: Perfectly serious. I have been a journalist all my working life. I believe passionately in the free press. I have been engaged in campaigns and other work to support the free press, both in this country and elsewhere. I do not believe that the package that is on offer in terms of the Royal Charter is in any way a threat to the free press, and people such as Sir Harry Evans and Tom Stoppard, only yesterday, were writing in the press saying the same thing. There are freedom of expression organisations in this country of some distinction, such as Article 19 and English PEN, which say they see no threat to freedom of expression in the Leveson package relating to self-regulation. So I do not see that anything that we have done is in conflict with a free press.
Q241 Philip Davies: Taking the EU out of the equation, which is a pleasant thought, if we could take the EU out of the equation, in this country you are free to do what you want unless an Act of Parliament says that you can’t. That is the way we operate in this country, so you do not need an Act of Parliament to enshrine your freedom. In this country, you are automatically free unless you are told that you can’t be free. So how on earth do you come to the perverse decision that the freedom of the press can only really properly be enshrined in statute? It defies all logic, doesn’t it?
Hugh Tomlinson: I am afraid there is a basic misunderstanding there. Of course the basic principle in England is you can do anything you like as long as it is not forbidden, but the Government has massive powers to do all kinds of things. To take an example that is of great concern to the press and doubtless in many of your local areas, the local authorities can set up newspapers-they have powers to do that-and those newspapers constitute a serious interference with the economics of the local press. If there was a guarantee of media freedom in the law, before a local authority could do that, it would have to take into account its impact on the local press. At the moment, it doesn’t. So the local press would receive additional protection from the kind of guarantee that Lord Justice Leveson recommended that it does not have at the moment. That is one of many examples. The fact is that public officials make decisions all the time that impact negatively on the press, putting up fees for getting court documents and things, and at the moment the press have no right at all to do anything about it. We find the implication of your question rather offensive. Hacked Off has always involved journalists, has always involved people that have campaigned for free speech for many years, and our campaign is for a free media, as well as an accountable media, and we regard the two as going together as absolutely essential.
Q242 Philip Davies: You are not here to represent a free press. You are here to represent people who, on the one hand, court publicity for all its worth if there is a financial return for them, but don’t like the negative publicity that sometimes goes with it. You are here representing the Hugh Grants of the world. You are not here representing the free press of the world, are you? If you are choosing between one or the other, you are standing up for the Hugh Grants.
Max Mosley: I am afraid this is complete nonsense, complete nonsense. What Hacked Off have been doing is saying on the one side, "We want a free press," which all of us want, all members of the public want. It is in our interest to have a free press and without a free press the scandal would not have been exposed, as it was by Nick Davies. To suggest that we don’t want that is simply wrong.
Q243 Philip Davies: Saying you want it is not the same as actually wanting it. Everyone can say they want it, but your actions speak louder than your words.
Max Mosley: The action is when there are breaches of the law, which there have been, some of us can attack, most of us can’t because we do not have the money, and your sympathies are obviously clearly with the sort of people who broke the stories about the McCanns and the Dowlers and so on. Well, sorry, we don’t agree. We do agree we want a free press, but we don’t agree that that should be allowed to continue.
Q244 Philip Davies: I thought you were a lawyer, Mr Mosley.
Max Mosley: I beg your pardon?
Philip Davies: I thought you were a lawyer.
Max Mosley: I am.
Q245 Philip Davies: You would know that what happened to the McCanns was illegal and that newspapers paid a fortune in reparation. What happened in terms of phone hacking is illegal and people have gone to jail for that. These things are already illegal, so don’t please start pretending we need laws to make something illegal that is already illegal.
Max Mosley: No, we are not taking laws to make that illegal. What is happening is that Leveson is bringing in provisions that would have allowed the McCanns and the Dowlers to bring proceedings that the abolition of conditional fee arrangements would have stopped.
Q246 Philip Davies: The McCanns did bring proceedings.
Max Mosley: Yes, because they had conditional fee arrangements that you have now abolished.
Hugh Tomlinson: Mr Davies, is your suggestion that the press should not have any form of regulation?
Philip Davies: My view is that they should have self-regulation.
Hugh Tomlinson: That is what they are being given.
Q247 Philip Davies: No, no, it is in statute now. My premise is that you are coming along here today rather disingenuously claiming to be the champions of the free press. You are perfectly entitled to your particular opinion-I have no quibble with that-but please at least come here being straight about what your motives are. They are to protect these powerful people, famous people who don’t like negative publicity. You are not here to argue for the merits of a free press. That is my particular beef with what you are trying to do today.
Professor Cathcart: That is clearly your view. It is mistaken.
Max Mosley: Don’t accuse us of not being straight. You have absolutely no right to do that. In my case, everything that could happen to me has happened. My interest in this is trying to make sure, one, it does not happen to other people and, two, if it does happen to other people they can afford to bring the sort of proceedings I brought. Don’t say that I am not straight. That is as straight as you can possibly be.
Q248 Philip Davies: When you say these proposals are a win-win, in effect if a newspaper loses the case they still have to pay costs. That is a win-win from your perspective. It is not particularly a win-win from a press perspective. You might call that a lose-lose.
Max Mosley: It is a win-win from the point of view of society because it means that the person who was in that situation had to bring proceedings in court because they couldn’t go to the arbitral body, and the reason they couldn’t go to the arbitral body was the newspaper in question refused to join. If the newspaper in question had joined there would be no problem.
Q249 Philip Davies: My final question is I want to know do you think, in any shape or form, that what is proposed will have any chilling effect on the media, given what they may well face? Newspapers, as we all know, are not a growing industry. They are a declining industry; they are suffering financially. This is not the same kind of industry it was 30 or 40 years ago. Some of these people will not be able to afford to take the risk of publishing something that may well be in the public interest-
Max Mosley: But they can-
Philip Davies: but actually turns out it may be too much of a risk for them. Do you not fear about the chilling effect that this will have on the press?
Max Mosley: The arbitral process will be extremely cheap for the newspapers and free for the complainant. It will be far cheaper than court. At the moment serious newspapers are deterred from attacking people who have money because they might face expensive legal proceedings. Under Leveson, those proceedings would have to be brought in the arbitral body. If a rich person said, "I am going to ignore the arbitral body and go to court," under Leveson, that person would end up paying the costs.
Q250 Philip Davies: So you pay a £1 million fine instead of a £1 million costs?
Max Mosley: You are not going to get a £1 million fine unless you do something absolutely outrageous.
Professor Cathcart: Further to your question, I am reminded of a quotation from a former news editor at the News of the World who was recorded telling a colleague, "This is what we do, Charlie, we go out and destroy other people’s lives." I teach journalism. I wouldn’t teach anybody that that is what journalism was about. If we chill that, I think it will be a job well done.
Q251 Jim Sheridan: I don’t think it will come as any surprise that I have diametrically opposed views to Mr Davies. This whole question about alleged press freedom being damaged is a complete red herring and I think most people know that. Self-regulation has been tried and failed badly, and so I do not see any problem with newspapers or journalists being asked to print the truth. If the truth is hurtful then so be it. My concern is that many professions and disciplines that are already under statute have some difficulty in understanding the hysterical and exaggerated response from the press. If you look across the water at Ireland and look at the Irish system where there is regulation and statute, it seems to be working perfectly well under the same editors; maybe not the same editors, but under the same proprietors. If it is working okay in Ireland, why can it not work here?
Professor Cathcart: I can only say that I would ask the same question. A great deal of the response to this debate-the whole Leveson inquiry-has been hysterical, and some of it has involved an abuse of the power that the press has in terms of we speak often of the megaphone of the press. I think the distortion in the reporting-and again this is something that Sir Harry Evans drew attention to-of the Leveson inquiry as it progressed was pretty shocking. The distortion in the reporting of the report when it appeared was extraordinary. The clear effort of some newspapers to influence public opinion and to protect themselves from, as you say, more effective regulation by the abuse of the power they have to communicate to the public is further evidence of the need for what Lord Justice Leveson recommended.
Max Mosley: One has to remember about Ireland that it is a much smaller place and they all know each other. When one talks, for example, to Dáithí O’Ceallaigh, the Chairman, it becomes clear that managing the press in that society by straightforward consent, which is what they have got, seems to work very well. Although, I think it is questionable whether you could have that system with something as big as we have here and as big a press body as we have here, and I think Leveson thought about that in great detail. Of course he had both Dáithí O’Ceallaigh and the Ombudsman giving evidence. He took that into account and then came up with his, I think, very ingenious system. However, it is a very different society, and I think one has to bear that in mind.
Q252 Jim Sheridan: What concerns me is there are parasitical elements within the press who abuse their position in here in terms of hiding behind their pens and calling people names. That is the so-called brave people. I don’t understand why they are allowed to come into this place and behave in the way that they do. This proposal is not going to stop them from behaving the way they behave, but hopefully it will bring some kind of decency to them.
Professor Cathcart: Something that you encounter when you are teaching journalism is that journalism has a fantastic power to do good. It is essential that it should be there to do that good, but it also has a tremendous power to do harm, and I think young journalists are sometimes taken aback by the ability they have to hurt people and harm people. Sometimes that is necessary; sometimes it is right to harm people. But it is also no less than the public should expect that, when journalists harm people, they should have thought carefully about it in advance, and they should have processes so that they can account for the choices they have made. I don’t think that is unreasonable. Nobody wants it to be some vast bureaucracy, but I don’t think it is unreasonable that journalists should be asked in that way.
Q253 Angie Bray: Good morning. Mr Cathcart, you said that Hacked Off had been set up in the first place to press for a public inquiry, which you got.
Professor Cathcart: Which happened.
Angie Bray: Yes. Then you obviously continued your work within that public inquiry to press for some serious changes to the way the press are regulated, so your role changed from having got the public inquiry to then pressing for a particular type of outcome. It would seem that you have finally set yourselves up as a kind of final arbiters of what would actually be acceptable, in terms of where we are now. Do you think it is right that a group like Hacked Off should ultimately be the people who give the thumbs up or the thumbs down to what is acceptable in the change of the way we do our press regulation in this land?
Professor Cathcart: First of all, the recommendations we are talking about were not ours; they were the judge’s.
Q254 Angie Bray: Although you are the ones that gave a running commentary on whether it was getting close to what you wanted or not.
Professor Cathcart: Well, they were the judge’s recommendations. Everybody had their say in front of the judge over a period of I think it was 14 months. Absolutely everybody had their say, and having seen the mass of the report, you can’t say that he did not take account of those opinions. I think in terms of us supposedly dictating terms, one of the things that was missing-the judge referred to I think it is seven inquiries in 70 years; for six of those inquiries the reports have been shelved essentially. On this occasion, that has not happened, and one of the many reasons that that has not happened is that this time, for the first time, the voices of the public-and I do not claim any monopoly on the ability of the public to express its views on this matter-and the voices of the victims of press abuse have been heard throughout the discussions. Previously, you had a report that is then pitched to the politicians who, I am afraid-and it is no reflection on the people in this room-decade after decade after decade have done shabby deals with their friends in the press to kick these things into the long grass, water them down, whatever metaphor you prefer.
Q255 Angie Bray: But since the Leveson report came out, you have continued to set yourselves up as the group that says what is going to come to pass is acceptable. I think you call it the Dowler test. Would that be right?
Hugh Tomlinson: The position is that, since the report came out, we have campaigned for implementation of its recommendations-no more, but no less. We have never at any stage said in the course of our campaigns, "Lord Justice Leveson ought to be beefed up because our own view is that all these things ought to be added on." The Dowler test is the victims of press abuse have taken the view, and they have made many public statements about it, that the Leveson recommendations are a good package, and then what we have done-
Q256 Angie Bray: Because they are pretty close to what you originally wanted.
Hugh Tomlinson: That is not actually true. Gerry McCann, for example, said that he thought the Leveson recommendations were much less than he wanted but it was a balanced package and was something that he was prepared to support. The victims decided that they would support the Leveson recommendations, and what we have done in our campaigns since the end of November is simply pointed out the best way of implementing those recommendations, and when the press have sought to dilute those recommendations, as they have through putting pressure on certain Conservative Ministers-
Q257 Angie Bray: They are entitled to lobby the same as you, I guess.
Hugh Tomlinson: We don’t think they are entitled to lobby because they-
Angie Bray: They don’t have a right to-
Hugh Tomlinson: No, no, because the position is that there was a public inquiry where they were represented by a total of eight or 10 different QCs, who argued their case. They brought their evidence; the judge considered it; and the judge came to his conclusion. The judge has come to his conclusion, and we think that the press shouldn’t have a second bite of the cherry trying to lobby Ministers again with arguments that failed in front of the public inquiry. We think, and we continue to think, that those recommendations ought to be implemented. That is the basis of our campaigning, not for anything more, not for our own private views.
Q258 Angie Bray: But your campaigning does extend to threatening people with unpleasant press releases of your own, for instance, threatening to say dirty deals and all that, so you are quite happy to put that kind of pressure on.
Hugh Tomlinson: No, it is very straightforward. Our campaigning is for implementation of Lord Justice Leveson’s report and recommendations.
Angie Bray: Whatever it takes.
Hugh Tomlinson: Wait a minute. If politicians for whatever reason decide that they are going to dilute those recommendations in response to pressure from the press, it is perfectly proper for us to point that out. That is what we have said to people throughout. We haven’t been running our own private agenda. We have been running absolutely transparently-unlike the press-Lord Justice Leveson’s agenda.
Max Mosley: If I may, somebody has to represent the public, and the difficulty is-
Q259 Angie Bray: That is you, is it? Who invited you to represent them?
Max Mosley: Interestingly, something like 176,000 people signed the petition-
Angie Bray: Asking for Max Mosley to represent them?
Max Mosley: I am not part of Hacked Off. I am just an ordinary member of the public.
Angie Bray: Oh, really?
Max Mosley: You may not agree, but the fact of the matter is that somebody had to voice this thing to the public. Every time there has been an opinion poll, something like 75% of the public have wanted implementation of Leveson. Now, these people have published that. Is that wrong? Is it wrong to try to get the politicians to do what the vast majority of the public want? What is wrong with that?
Q260 Angie Bray: I do not think the vast majority of the public have been asked about the specifics; but do you think it is appropriate that, ultimately, you should line up the Hacked Off agenda behind the Dowler test? Everybody knows that the Dowlers in particular had a terribly tragic set of circumstances, and I think everybody feels very badly for them, but is it absolutely appropriate that the Dowler test should be used as the leading light for the whole Hacked Off movement, and what do you think is going to be the right way to conduct press regulation in the future? For instance, is it normally appropriate for victims, however tragically they have been treated, to be invited to be the final arbiters on those people who they feel have badly treated them? I do not recall that being what happens in a court of this land, for instance. When sentences are handed down, it is not for the victims to be the final arbiter.
Professor Cathcart: I have explained why I think it is very important that the voices of victims of press abuse be heard.
Q261 Angie Bray: They are heard, but whether they should be the final arbiter is a different point.
Professor Cathcart: Can I refer you to the words of the Prime Minister? I can’t quote them directly, but he said on several occasions that the opinions of the Dowlers and families like them who have been "thrown to the wolves"-were his words-were absolutely central in this debate. It was not what politicians thought and it was not what the press thought, the Prime Minister spelled out. So you may ask him what he thinks about the Dowler test.
Hugh Tomlinson: I was going to say the Dowler test was one formulated by the Prime Minister, not by us. The Prime Minister said on several occasions that the ultimate test would be whether the victims accepted it. We are not setting something up from the outside. We are actually going along with what the Prime Minister himself said, perfectly properly, was an appropriate way to proceed.
Q262 Mr Bradshaw: Max Mosley, you sounded rather confident earlier that those news organisations that have not yet agreed to join this new regulatory body will. Why are you so confident?
Max Mosley: I think the reason they will join is that in the end they are all running a business and it will be much more economic, much better commercially, for them to be part of the regulator than it is to be outside. I think the immediate reaction has been emotional, because they feel they have carried out a campaign saying that this was all infringing on the freedom of the press, which they will come to recognise it is not. Then when they sit down and look at it calmly, they will realise that this will save them a fortune in legal fees, make everything much smoother, quicker and easier to run, and if they stay outside, they are going to have all sorts of disadvantages with costs and so on, and the commercial imperatives will prevail. I think that even if the editors don’t like it, the proprietors, who are interested in the money, will simply say, "I am afraid you have to do this."
Q263 Mr Bradshaw: This is a question for all of you. If they don’t, what should happen?
Professor Cathcart: Lord Justice Leveson rather backed away from that one in his report and so we have not expressed a view. In the charter, there is an arrangement whereby, if the recognition body after a certain period of time has been unable to recognise a regulator, it reports to I think it is the Secretary of State for Culture, Media and Sport who then must decide how to take it forward. The judge aired a series of arguments about what should happen if there is failure, but he did not prescribe. I think he was trying to avoid the sort of last chance saloon-or the sword of Damocles I suppose would be a better one-threat that we have seen in the past, but he aired some options such as it is possible that the Government might itself set up a regulatory body, perhaps on a temporary basis, or might pass responsibility to an existing regulator.
Max Mosley: If I may add a bit, I think the reality is if people can bring actions in the courts in the knowledge that if the action is reasonable then, won or lost, it will be paid for by the newspaper, we could continue with that system for quite some time. The only problem of a lot of people staying outside would not be the enforcement of legal rights. It would be getting them to observe their code. But, even there, failure to observe the code would obviously weigh with the court when assessing damages. So it does seem to me that the overwhelming probability is they will all come in. If they don’t, we could go for quite a long time without them in, and in the end it would come back to Parliament to decide what to do.
Q264 Mr Bradshaw: Can I be clear about Hacked Off’s position on this? If these remaining newspaper groups do not come in, should the Government legislate and use Ofcom as the backstop? Is that your view?
Professor Cathcart: We do not really have a formal view on it because we are living with Leveson. I can give you a personal opinion. If that were to happen, I think that the ideal arrangement would be that the Government sets up a temporary regulator, along exactly the lines described by Leveson, and lets that run until such time as the press is prepared to take it over and run it independently itself.
Q265 Mr Bradshaw: Can I ask you about the digital problem? What is your understanding of the status of the digital media, vis-à-vis what was agreed yesterday, and how enforceable is it?
Hugh Tomlinson: Lord Justice Leveson is often criticised for not dealing more with the internet, but of course it did not form part of his terms of reference. His terms of reference were confined to the press. What he envisaged was a regulator-and he says this in so many words and it is very clear in the Royal Charter-that is open on different terms to different kinds of members. It is clear from his report that he had in mind that small digital publishers could join and then they would have the advantages of being part of a regulator and on different terms. If you publish a blog and have a few thousand readers a day, obviously you pay a completely different fee to join than you do if you are the Daily Mail. What he envisaged is that the regulator would provide a protective framework that would assist digital publishers so that digital publishers could join in, get its advantages, and if it worked well, they would be attracted to it. Obviously, what we need to do is to see what regulator is set up and how it works.
In answer to your earlier question, I think I would say the well known politician’s answer, "That is a hypothetical question. Let’s wait and see." I think we all now hope that the press, who have, after all, told Lord Justice Leveson that they wanted to set up an effective regulator-and indeed I think they circulated all MPs at the weekend with a document saying, "This is the regulator we have in mind and we are going to set it up."-do that and that this regulator works, and then it will attract not just magazines and newspapers but also digital publishers.
Q266 Mr Bradshaw: What do you do about the likes of Guido Fawkes who told a previous hearing of-I don’t think this Committee-the Joint Committee on Privacy and Super Injunctions that he bases his operation in the United States outside the UK’s legal jurisdiction?
Hugh Tomlinson: The fact that you can’t devise a mechanism to catch absolutely everybody, every possible arrangement, is not an argument against a mechanism that catches most people. It is always going to be possible. It always has been possible. After all, books used to be published in Holland to avoid English restrictions in the 15th and 16th century. People have always managed to avoid restrictions, so I don’t think we need to think about them. We need to think about the vast mainstream of people who do want to do the right thing, who do want to obey the rules. If this regulator is set up and recognised in the way that this scheme envisages, I think it will be of positive benefit to everybody, digital or paper.
Max Mosley: There have been cases about breach of copyright. In a recent one in front of Mr Justice Arnold it emerged that 94% of all the internet traffic in the UK is just six internet service providers. Of course, in the worst case you can, figuratively speaking, cut the wire. So an order of the English court is enforceable in England in that way, but obviously nobody wants to do that. I would not want anyone to think it is not practicable because it is.
Q267 Conor Burns: There is no doubt at all that Hacked Off have had significant influence in recent months, and particularly in recent days, and as political practitioners, regardless of what side we are on, we are rather admiring of you as a campaigning/lobbying organisation. Can I ask who from Hacked Off was present in the Leader of the Opposition’s office on Sunday night/Monday morning?
Professor Cathcart: Yes. Hugh and I were there and Dr Evan Harris. With us, although he is not a member of Hacked Off, was Martin Moore from the Media Standards Trust, who is very expert in the regulation issues.
Q268 Conor Burns: How did you come to be there?
Professor Cathcart: We were invited by Mr Miliband’s staff.
Q269 Conor Burns: Anybody in particular on Mr Miliband’s staff?
Professor Cathcart: I can’t remember; I am sorry.
Hugh Tomlinson: We received a phone call saying, "Would we like to come to attend a meeting to discuss aspects of what was being proposed?"
Q270 Conor Burns: Perhaps you might remember after the meeting and let us know. It is quite interesting to us that you had the Deputy Prime Minister, the Leader of the Opposition, the Prime Minister’s ambassador in the form of Oliver Letwin and yourselves, so it would be interesting to know how you came to be there and who asked you to be there.
Professor Cathcart: I have been reminded that Mr Clegg was expecting us to be there as well. The invitation came through Mr Miliband’s staff, but it was-
Q271 Conor Burns: Was Mr Clegg expecting you to be there because Mr Miliband’s people had let Mr Clegg know, or was it a joint invitation?
Professor Cathcart: I don’t know. I got the message indirectly that we were required to be there at very short notice.
Q272 Conor Burns: Did Oliver Letwin at any point express any surprise that you were there?
Professor Cathcart: I don’t recall.
Hugh Tomlinson: Not at all. We have had a number of meetings that we have made public. We have been invited to meet Oliver Letwin in the Cabinet Office on a number of occasions to discuss with him the detail of these documents.
Q273 Conor Burns: So Mr Letwin thought it was perfectly normal that-
Hugh Tomlinson: I don’t know what Mr Letwin thought. All I can tell you is what he said.
Q274 Conor Burns: Fine. Who did Hugh Grant call within the Shadow Cabinet?
Professor Cathcart: I don’t know
Q275 Conor Burns: You don’t know? One of your major spokespeople, one of your major advocates?
Professor Cathcart: All I can say is that we are a lobbying organisation. We phone everybody we can get hold of and ask them questions and pester them. If you buy any of the textbooks about campaigning, they tell you to do that. We do it. I daresay more people answer the phone when Mr Grant calls than they do when we call. I have, however, buttonholed you twice in the corridors outside and asked you for a meeting.
Q276 Conor Burns: I do know that when we go canvassing as politicians we don’t go down the street all knocking on the same door. We do tend to divide out the doors that we are going to knock on. Did you not divide up the Shadow Cabinet doors that you knocked on or phone calls that you made?
Professor Cathcart: I don’t think I have any Shadow Cabinet phone numbers. I might have one.
Q277 Conor Burns: Mr Grant has all the Shadow Cabinet phone numbers?
Professor Cathcart: Well, he was able to get hold of some, as I say. I was ringing. I have been ringing people for months. Some people on this Committee will have been pestered by me, and other members of the organisation do the same thing.
Q278 Conor Burns: Did you prepare a press release prior to the Royal Charter deal being done condemning Mr Miliband and Ms Harman for signing up to a Royal Charter deal?
Professor Cathcart: We certainly prepared one, yes, a draft.
Q279 Conor Burns: Why did your spokesman, Mr Hurst, deny last week that you had prepared such a press release?
Professor Cathcart: I doubt if he did.
Conor Burns: You doubt if he did?
Professor Cathcart: I doubt if he did.
Hugh Tomlinson: The quotation I saw I think it was he admitted it but-
Q280 Conor Burns: That is interesting. Can I ask, who are Hacked Off’s donors?
Professor Cathcart: We are very open about this. I refer you to our website. We have donations from the public online. We have donations from, notably, the Joseph Rowntree Reform Trust, who have been very generous. We have received quite a substantial sum of money from Hugh Grant, which was roughly the sum of damages that he received from News International, so we regard it in a way as a donation from Rupert Murdoch, and we have some private donors who have chosen not to make their names public.
Q281 Conor Burns: This is interesting, because there you are sitting in the Leader of the Opposition’s room, with the Leader of the Opposition, the Deputy Prime Minister, the Prime Minister’s ambassador on press regulation acting in the Prime Minister’s name, and you are the only other group there represented and you think it is okay. You talked earlier about transparency and openness and the obligation of people to be completely clear, but you think it is okay to have private donations funding your lobbying activity, sitting inside the Palace of Westminster with decision-makers on fundamental reform of how the press in this country is regulated, and not declare who those donors are?
Hugh Tomlinson: Mr Burns, we certainly do and we do for a very simple reason, that anybody who campaigns against what the press perceives to be its interest is subject to attack by the press. I know, because they have told me and some have spoken publicly, that Members of this House have been subject to exactly the same pressures. They have been told privately that, "If you carry on speaking out against Mr Murdoch, we will make sure that your political career suffers." There are individuals who support our work and who are justly concerned that, if their names are made public, they would be subject to attack in the press. On that basis, we have said to them that, "We will give you confidentiality." It is entirely for that reason and for that reason alone.
Q282 Conor Burns: But you are a lobbying organisation fundamentally trying to change the laws of this land and you are behaving in a way that no other vested interest or commercial interest or trade union in this country would be able to do. You are concealing private donations, I presume, from very significantly wealthy people. Are any of the names that Guido Fawkes listed on his website yesterday incorrect, the French financier, for example, Annabel Goldsmith, Lord Sainsbury? Are these names that you recognise from your bank accounts?
Professor Cathcart: I am not going to comment on those.
Q283 Conor Burns: You are not going to comment. That is interesting. It is interesting that, on the basis of transparency and openness that you want the press to have, you are not prepared to comment.
Hugh Tomlinson: I am sorry, Mr Burns, the position is that the press have been conducting a campaign entirely in their own self-interest, directly and indirectly. Of course they are entitled to campaign on their own behalf.
Q284 Conor Burns: We know who owns the newspapers, but we don’t know who owns you.
Hugh Tomlinson: We don’t know who finances the Free Speech Network, for example. The Free Speech Network is a lobbying organisation set up by the press to argue in its favour. They don’t make their finance or donations-they don’t make anything transparent about how they operate.
Q285 Conor Burns: With respect, Mr Tomlinson, they were not in the Shadow Cabinet room with the Deputy Prime Minister, the Prime Minister’s ambassador on press regulation and the Leader of the Opposition, seeking to do a deal to change the way the press is regulated in this country. You must operate to a higher standard.
Hugh Tomlinson: We will know when the Prime Minister eventually releases the details of his meetings with the press-which remains I think six months behind in terms of the details he promised to release-how often he met with the representatives of the press. At the moment there has been no public disclosure of that. The difference between us and the press is that we have made it clear throughout when we have met with politicians. We have published it on our website. We have made our whole activities entirely public. The press have done this behind closed doors. We don’t know what conversations they were having on Sunday or over the weekend with Ministers.
Q286 Conor Burns: We know they were not in the room. They were not in the room with you.
Hugh Tomlinson: They were not in the room with us, but we don’t know who they were in the room with because none of that has been disclosed.
Professor Cathcart: Can I take you back to the background of this? When Lord Justice Leveson reported, he called on politicians to engage in an open and transparent process of implementation. He spoke of an immediate need for openness because he believed that that was going to increase public trust in the process and in the outcome. What happened was that the process slipped behind closed doors immediately. Thanks, I am afraid, to the choice of the Prime Minister, it slipped behind closed doors immediately, so that the public had no idea what was going on-
Conor Burns: It was certainly behind closed doors on Sunday.
Professor Cathcart: Repeated contacts with the press. We are quite clear that the Royal Charter draft first produced by Oliver Letwin was rewritten, either with the press holding the pen or with the press dictating the words, at the beginning of January-rewritten to the dictates of the industry. This was the industry whose views had been fully heard by the public inquiry. They had had their chance.
Q287 Conor Burns: As we all heard, you were in the room on Sunday. I am interested in this point about the room on Sunday behind closed doors. The press were not with you.
Professor Cathcart: All we were doing, all we are doing is advocating the implementation of the Leveson recommendations.
Q288 Conor Burns: But you said the press had their opportunity to speak to Leveson, and you had your opportunity to speak to Leveson. Why did you need to be in the room on Sunday evening/Monday morning, eating pizza with Mr Miliband at 2 o’clock in the morning, doing a deal to change the regulatory regime of the press in this country?
Hugh Tomlinson: Nobody offered us a pizza, and the very simple answer is we were in the room because we were invited. We were invited, and one possible and rather obvious reason is that we have spent a lot of time working on this. We have quite a lot of expertise to contribute. We went because we were invited, and we have been perfectly open and clear about it, unlike the press who have been invited to secret meetings and have not said anything publicly about it at all.
Conor Burns: We could not have had a more secret meeting than the one on Sunday evening.
Q289 Chair: Would you have been happy if the Society of Editors and Peter Wright, for instance, from Associated Newspapers was also in the room?
Professor Cathcart: Can I ask a question?
Conor Burns: You can certainly ask Mr Harris’s question that he has just passed you, please do.
Professor Cathcart: Actually, Mr Harris has just passed me a page from the summary of recommendations of Lord Justice Leveson referring to the need for greater transparency, and you might take a note of this, "Political leaders should reflect constructively on the merits of publishing on behalf of their party a statement setting out for the public an explanation of the approach they propose to take as a matter of policy in conducting relationships with the press." That is recommendation 82. I don’t think your party has complied with it yet.
Q290 Conor Burns: Mr Mosley, are you a donor to Hacked Off?
Max Mosley: No, I have not given them a penny.
Conor Burns: You have not given them a penny. My final question-
Max Mosley: I have spent quite a lot of money in other areas, trying to help victims and things like that, but Hacked Off seem to be able to look after themselves.
Angie Bray: They have plenty of money without yours.
Max Mosley: Say that again.
Q291 Conor Burns: My final question is to Mr Mosley. Mr Mosley, how would you describe your relationship with Lord Skidelsky?
Max Mosley: A friendship of 50-odd years. Horrifying actually; we have known each other since 1959. We were at Oxford together.
Q292 Conor Burns: Did you help Lord Skidelsky in any way with the amendments that he tabled to the Enterprise and Regulatory Reform Bill?
Max Mosley: No, I didn’t. I think they were all originally drafted by Hacked Off. I think they originally came from Hacked Off.
Conor Burns: They were all from Hacked Off. Thank you.
Max Mosley: But I certainly didn’t help with them, no.
Q293 Jim Sheridan: Chair, could I raise a point of order? On the question of influence and press and what have you, it might be worthwhile reminding the Committee that the press paid for private investigators to follow members of this Committee.
Chair: Can I respond first? In the words, I think, of the Speaker, members will have heard what you said but I am not sure that is a point of order to the Chair. Although, in actual fact, on a point of information, I think we only established that only one member of the Committee was definitely put under surveillance.
Mr Bradshaw: Chairman, can I also say I think it is important we put on the record that the Newspaper Society were invited to come and give evidence to us this morning and did not manage to provide anyone.
Chair: Also the Society of Editors.
Conor Burns: The society said they would be prepared to come on a future date.
Philip Davies: Can I just ask as a follow up to Conor-
Chair: No, I have a long list of people before. You can come back.
Q294 Paul Farrelly: I have met with quite a number of victims now, and one of the things that they have said consistently to me is that without the shoulder to lean on of Hacked Off they wouldn’t have had the courage to tell their stories. So I applaud, in a free society, the ability and commitment of people in an organisation like Hacked Off to make their case, and I think you have done it very well. It would have seemed rude to have said no if invited to the final meeting that might break the logjam, as it did. I congratulate you on the role that you have played, and Max Mosley as well and the courage that he showed in not kowtowing and taking on the press, even though it was rather counter to the intention to keep private things private.
Now on to questions: I think Ben has talked about what happens if this recognition body is set up and nothing happens. Say we have a properly constituted body, it is there; it gives annual reports to Parliament, just like the BBC and Channel 4. We might even invite it to come and see us in the future. What does happen if it has nothing to say and they are just left twiddling their thumbs?
Hugh Tomlinson: As I said, I think in answer to Mr Bradshaw, that is a hypothetical question. Let’s wait and see. The obvious answer is something will have to be done. I think everybody accepts, including the press themselves, that an effective regulator for the press is necessary. The press have made that absolutely clear. The disputes have been about exactly how it will operate but nobody at all says that such a body is not necessary, so if no such body was established and nobody was put forward for recognition obviously further steps would have to be taken. Speaking for myself-and Hacked Off does not have a policy on this-I would have said that it would depend entirely on what had happened in the interim. If a body was in existence, was working but was not recognised, different things might need to be done than from a situation where the newspapers decided they would not co-operate in any way with any form of regulator. If we got to that situation then it seems to me that Parliament would have to act, and Parliament would have to act in a way that balanced the rights of media freedom against the rights of the public and the rights of individuals.
Q295 Paul Farrelly: In setting up the recognition body in the first place, and in terms of the appointments panel, this gives a lot of power and influence to the Commissioner for Public Appointments, yet the charter is silent on how he should exercise his decision making and be transparent about it. Do you have any thoughts on that?
Hugh Tomlinson: I am not sure it is quite fair to say it is silent. We had this problem when we were before the Committee last time. These mechanisms are very elaborate, and they are very elaborate precisely because everybody recognises it is necessary to have independence in the ultimate decision-making body, so you can’t have a regulator that is under the influence of outside people. The idea of the Commissioner for Public Appointments is that he is an obviously independent figure who is used to making appointments. What he does is to set up an appointments committee that appoints the board of the recogniser. If you look at the criteria on page 10 of the copy of the charter that you find on the website, they set out the criteria for appointment to the recognition panel. The criteria are things that might be fairly obvious: they have to be experienced; they have to understand what is going on; they have to have qualifications, financial skills, experience in public policymaking and so on. Then there are certainly exclusions: they can’t be editors; they can’t be MPs; they can’t be politicians. There is quite a lot there. Presumably, he will advertise, an advertising process will be put in place and it will say, "Applicants are invited and they must have these qualities as listed." Then there will be a transparent recruitment process.
Q296 Paul Farrelly: This would be the expectation from day one?
Hugh Tomlinson: That is what the charter says. I don’t know, but I am sure that the Commissioner for Public Appointments has been consulted before being given this role. He must have agreed with the Government that it was a role he could carry out, and it is a role that he is well experienced in carrying out. I think we can have some confidence that this process will produce a board that is suitably qualified and suitably independent.
Q297 Paul Farrelly: One of the things that seems to have got lost in all this is that this is about setting up a recognition body, but the press itself, under this regime, will still have it in its own hands to set up the appointments panel and its own regulator. That has got lost in some of the translation. One of the key tests for the appointments panel for the regulator itself is there should be individuals who are independent of the industry. I can think of lots of people who are independent of my industry or your industry but might be my pals. How do we stop the regulator being captured from the outset if the industry is responsible for setting up the appointments process and the regulator itself?
Hugh Tomlinson: Lord Justice Leveson said, and there was never any dispute about these words, that it should be appointed in an independent, fair and open way. I think it has been said publicly, certainly it is my understanding, that at an early stage the industry asked the Government whether the Commissioner for Public Appointments could assist in designing this process-we are not talking now about the recognition body; we are talking about the self-regulator-and the Government agreed. So he is assisting, and you may know there is a committee, which again they have announced publicly, chaired by Lord Phillips, the former President of the Supreme Court. That body is advising them on how to run this process, along with the Commissioner for Public Appointments.
Again, we do not come at this with any kind of prejudice. We do not think, "Oh, the press are just going to fiddle it." We take them at their word. This is a process that sets out an independent, fair, open process, and we assume that that is going to be carried out with those distinguished individuals overseeing it.
Q298 Paul Farrelly: I was interested to see last weekend a report in the Times about a foundation group being set up by Lord Phillips of Worth Matravers-I don’t know whether you know this is true or not-that reportedly included Trevor Kavanagh of the Sun. Is that-
Professor Cathcart: I would just echo what Hugh says. I do not think it is anybody’s business but the press’s how they go about doing this now. The key point is that if you have a recognition body that applies the tests on behalf of the public to ensure that this is not a captured body, then if the body that is set up passes those tests nobody will have anything to complain about. If it does not, they will clearly have to go back and try again.
Hugh Tomlinson: The foundation group is not, as I understand it, intended to be any part of this regulatory system. It is just a group that is intended to bring people together to design the rules. One may have objections or not to all kinds of individuals in that group, but, as Brian says, that is not our business. Lord Hunt has said on many occasions that huge efforts have been put into designing this process. It has been done in a way that is designed to be compliant with the Leveson requirements, and ultimately the recognition body will decide whether that is fulfilled. If there is any problem with this process, the recognition body will say, "No, sorry, that is not good enough. You’ve got to redesign your system."
Q299 Paul Farrelly: I have not asked them directly-I hope we will get the chance to ask them directly-but is it your understanding that Trevor Kavanagh is part of this group?
Professor Cathcart: I have read the same reports you have.
Q300 Paul Farrelly: I am very interested in the practicalities of getting from A to B and the perils that might be encountered along the journey.
Can I ask just one final question? Lord Hunt-a very respected man in his field-has set himself against what happened yesterday in Parliament and seems to have put himself in the position where he is the chair of a regulator but he has been the mouthpiece for the industry’s view. Do you think Lord Hunt is an appropriate individual, given the recent history, to be chair of a new regulator?
Hugh Tomlinson: Sorry, two things. The first is I am not aware of him having made any public statements to that effect. I may be wrong. He may have said something. He is not eligible to be chair of the new regulator, because he is a peer who takes the Conservative whip, and he will not be the chair. He is a man who is assisting in the design of the system perfectly properly-someone has got to do it-and, as Brian said, what we expect is the press to operate the system in good faith. Ultimately, a person will be chosen to chair the new body who fits the criteria, who is completely independent. Again, we have faith that if that person is not independent, the recognition body will say no.
Paul Farrelly: My apologies, I have seen so many versions of this draft charter, I had forgotten that Members of the House of the Lords, in the final draft, who have been affiliated for the last five years are barred. It is a useful reminder. Thank you.
Q301 Tracey Crouch: Do you agree with the Prime Minister when he claimed yesterday that this is not statutory underpinning?
Professor Cathcart: I find it very hard to agree with him. Let me say that we are very grateful to the Prime Minister for the position he has taken and I can say on behalf of notably the victims for whom we speak that they are very pleased that there is a cross-party outcome to this and there is consensus. The statutory underpin is about a form of words, perhaps, but there is no doubt that there is a clause of statute now, which-
Angie Bray: A dab of statute was the way you put it.
Professor Cathcart: A dab of statute, which gives effect to the paragraph of the Royal Charter that assures its independence from the Privy Council. That had to be done and it had to be done for rather the reverse reason from the one that has often been presented. It had to be done to protect the freedom of the press.
Q302 Tracey Crouch: Do you think the Prime Minster misled Parliament yesterday?
Hugh Tomlinson: I do not think the Prime Minister misled Parliament. The statutory underpinning is not a term of art. It does not have a precise legal meaning or even precise general meaning. The position that we arrived at-and this was originally something that has been reported correctly that I suggested-was that we understood that the Government’s legal advice was, if you had a Royal Charter, it could be altered by the Privy Council, which essentially is Ministers. The whole problem that the press have identified is the Government in the future interfering with any system of press regulation. The concern was, even assuming for the moment the present set of Ministers would not want to interfere, that in the future some Ministers might say, "We are going to amend the Royal Charter because we do not like this bit or this bit."
Q303 Tracey Crouch: Although it is not binding on new Parliaments, so a new Parliament with a majority can change it anyway.
Hugh Tomlinson: No, sorry, wait a moment. It was thought necessary to have some kind of statutory protection for the Royal Charter. The press had a concern about mentioning the press in that piece of statute. I suggested that the statute be put in more general terms. You are right to say that the position is that Parliament, which is sovereign, can change the rules. Parliament can change the rules in any way it wants. Parliament can cancel the Royal Charter by a piece of legislation if it wants. But what the piece of statute that was put yesterday into the Enterprise and Regulatory Reform Bill means is that Government Ministers cannot, without the backing of Parliament, change the Royal Charter. That seemed to us to be an essential protection both ways. It protected the press from Government Ministers interfering with the charter. It also protected the public from a position where the press put pressure on Ministers to change the charter to get rid of bits they did not like. Of course, Parliament can decide in the future to change the system, but it seemed to us, and I think there was fairly general agreement, that this was a necessary legal protection. We are not hung up on whether you call it underpinning, the words you use; whatever you call it, the position is that this small clause in the Enterprise and Regulatory Reform Bill is an essential protection for everybody, not just-
Q304 Tracey Crouch: So what you are saying is that it is regulation by statute. It is statutory underpinning. The Prime Minister claimed yesterday-
Hugh Tomlinson: No, sorry, forgive me. Regulation by statute has a very clear meaning. Regulation by statute means here is the statute and it sets out the regulation.
Q305 Tracey Crouch: But it is a dab of statute.
Hugh Tomlinson: No, it is not at all. What the position is, is that-
Angie Bray: When is a statute not a statute?
Hugh Tomlinson: No, no, no. Statutory regulation is a statute setting out the regulation. That does not happen here. The statute does not even set out the terms of the recognition. The statute says nothing about recognition. All the statute does, the best way to describe it, is it gives statutory protection. The statute is protecting the recognition charter from being interfered with by politicians. Now, you may laugh. You may think that is a bad idea. You may think it is a good idea that Government Ministers should be able to interfere with the press. We happen to think it is a bad idea, and we are rather surprised that the press do not agree with us.
Q306 Tracey Crouch: Brian, you teach students still. Will this new Royal Charter and everything that has been discussed today, the press regulation, fit into your media law module or something else?
Professor Cathcart: In fact, our modules are being currently completely redesigned in a rather tiresome way. It would fit into a law and ethics module. I can’t give it a name now, but that is where it would fit.
Q307 Tracey Crouch: But it is, effectively, the legal aspects, the legislative aspects of press regulation?
Professor Cathcart: In that module, they are taught about libel law, so the existence of libel law or, for example, data protection law-
Q308 Tracey Crouch: But that is statutory.
Professor Cathcart: Is that statutory regulation to you? Would you characterise-
Q309 Tracey Crouch: I think libel legislation would be considered-
Professor Cathcart: So that is statutory regulation to you?
Tracey Crouch: I would consider so, yes.
Professor Cathcart: Well, then what happened yesterday that was new?
Tracey Crouch: The fact that the Prime Minister claimed that it was not statutory underpinning.
Professor Cathcart: I think you will have to ask the Prime Minister about that.
Q310 Tracey Crouch: That was my question to you. The question is do you think that the Prime Minister, when he claimed that it was not statutory underpinning, was in fact misleading Parliament?
Mr Bradshaw: Are you accusing your leader of misleading Parliament?
Tracey Crouch: I voted against it.
Professor Cathcart: Forgive me, but I am not sure it is a useful line of argument as something that I can address. I think that-
Q311 Tracey Crouch: I just wanted to be clear as to whether the idea of statutory underpinning is where we are at, because I think there was confusion yesterday as to whether-
Professor Cathcart: It is a term I will happily use in this context, partly because it is so essential to protect the public and to protect the freedom of the press. Before we go further, could I read a quotation from the Prime Minister about the Dowler test? He said, and I am not quite sure of the context but I think it might have been in front of the Leveson inquiry itself, "That is the real test. If the families like the Dowlers feel this has really changed the way they would have been treated, we would have done our job properly."
Mr Bradshaw: Hear, hear.
Q312 Tracey Crouch: Thank you for reading out that quote. Can I ask you a quick question on the arbitration and costs? What do you think will be the impact of the exemplary damages on the local and regional press?
Hugh Tomlinson: Sorry, the exemplary damages?
Tracey Crouch: The new arbitration process and everything else. The costs are going to have claimants who are going through the process.
Hugh Tomlinson: The new arbitration system on the regional press will be minimal for the simple reason-
Tracey Crouch: Local press?
Hugh Tomlinson: We offered to talk to the regional press about this because I think that they had misunderstood what was being proposed. The arbitration system is an alternative way of dealing with civil claims. At the moment, you can bring a civil claim against a local or regional newspaper at no cost on the basis of using a conditional fee agreement and after the event insurance-so no cost and no risk to you. The number of claims each year is negligible. No figures are published, but I would be surprised if they reached double figures and there probably may be only one or two a year. Under the new system, from the claimant’s point of view, the position would be identical, so you could bring the claim at no cost in the arbitration system. Is that going to encourage any more claims? I simply do not see how. Why would it, because if people could bring claims at no cost now and they can bring claims at no cost in the future, why would it make any difference?
Secondly, if they did bring claims, let’s just say for the sake of argument there are 10 claims a year against the local press-as I say, I do not think there are any figures published-and let’s say that those claims cost the local press on average £30,000 a time, again a reasonable estimate, that is £300,000 a year. Using the arbitration system, if it is working properly the costs will probably be cut in half. So, therefore, you would be saving the regional press £150,000 a year. The people who will be paying that money will be the lawyers. The lawyers will lose out to the tune of £150,000 a year and the regional press will gain. So I do not think that the regional press have anything at all to fear from the arbitration system properly understood. If there are claims against them, they will be cheaper, but I do not think it will encourage people to bring claims.
Max Mosley: Can I interrupt, because I think there is a very fundamental point that has been missed for the protection of the regional press, which is that if a regional newspaper is sued by somebody who is wealthy, it is absolutely catastrophic for them because, even if they win, the difference between their costs awarded against this rich person and the costs they have to pay their solicitor is significant. It can be tens of thousands of pounds. So a great danger for the local press is that some rich local person, who wants to bully them or stop them printing something that they should print, threatens to sue them and even if they are confident they can win, they will not fight the case because of the difference in the so-called assessed costs and the actual costs it costs them.
You can see this on a huge scale when Mr Barber of the Financial Times was giving evidence. He said they fear an oligarch suing them because, just to take some crude figures, if an oligarch sues them and it costs him £1 million and it costs them £1 million and they, the Financial Times, win hands down, they will get about 70% of their costs from the oligarch but they will be left with the other £300,000. It costs the oligarch £1.7 million. Meanwhile, he has been able to fine the Financial Times £300,000, which he might find very satisfying.
On a much smaller scale, a rich local councillor or somebody of that kind who wants to bully a local newspaper can do that. Under the arbitral system, as Hugh as pointed out, that would disappear because the local rich person would have to go to the arbitral system and it would all cost nothing. It would cost very little for the newspaper. If he did not do that, if he said, "No, I am going to go to court and I will sue," then Lord Justice Leveson’s system would come in and that rich local person would end up paying the newspaper’s costs. It is a real protection, but the trouble is these costs are so complex that people do not usually follow them. A lot of the local press are not fully aware of just how beneficial Leveson is to them.
Q313 Tracey Crouch: Max, I wanted to ask you a question following up from what you said earlier. You said that you wanted "to prevent what happened to me happening to others." What precisely do you think would be prevented under what was passed yesterday?
Max Mosley: First of all, even if they did that to somebody with no money, under what was passed yesterday that person would have a remedy, which previously they would not. Secondly, because we are looking at exemplary damages and all the things that go with them-and there is also now no duty, but there is a suggestion that it is beneficial to ask the regulator in a difficult case, "Should we publish this? Is it in the public interest? Get an independent view"-all of that would mean that if the News of the World had that story, under Leveson they probably would not have published it, because they would be looking at massive damages, massive costs and quite probably a fine from the regulator into the bargain.
You can never stop somebody doing something if they are absolutely determined to do it, but I think what one can say is that Leveson greatly reduces the probability of doing to anybody what they did to me. Much more important than that, in the old days they could do it to somebody with no money. One of the first questions apparently the tabloids, according to Peppiatt, ask when you ring in with a story about somebody is, "Where do they live?" and if they live in a council flat and they do not appear to have any money, "Publish the story. We can do it without risk." That would stop under Leveson.
Q314 Tracey Crouch: But surely your story probably would still have been printed under the definition of public interest?
Max Mosley: Which story? My story?
Tracey Crouch: Yes.
Max Mosley: No, because the thing is that anybody who had sat and looked at that objectively would have said it is not in the public interest and they would not have published it. The problem is that an editor, like the editor of the News of the World in those days, sees what looks like a lovely story, put it on the front page, and sell some newspapers; it is very tempting to do it. If they had to ask a regulator, "Do you think this is a good idea? Should we publish this?" that would be a deterrent. Also their lawyer, the latter-day Tom Crone, would say to them, "This is going to be very expensive and maybe Mr Murdoch won’t be happy with the exemplary damages and the costs and all things going." It is a question of reducing probability and I think what we have with Leveson, what was passed yesterday, will reduce the probability.
Q315 Tracey Crouch: Are you disappointed that there has been no progress on pre-publication notifications?
Max Mosley: I am sad or a little bit disappointed that Leveson did not make more of a thing of that. What he did do is he said that there should be the right but not the obligation to ask the regulator and there should be the right but not the obligation of the regulator to give an answer. If somebody published a story without asking the regulator or asked the regulator and were told, "Don’t publish it," and published it notwithstanding, I think in both those cases the lawyer for the plaintiff, the complainant, would have a good basis to ask for exemplary damages. More than that you can’t do. Leveson has not gone as far as I would have gone, but I would say that, wouldn’t I?
Q316 Tracey Crouch: There was a point made earlier that this is just the start of a process, that you very much welcomed the announcement yesterday, that you saw this as the beginning. Do you see this as becoming part of the end result that you all desire?
Max Mosley: I think we are going to get a change of culture. The press will realise that they have great freedoms and great encouragement to do serious investigative journalism, but the quid pro quo is no more McCanns and no more Dowlers. I think that is a fair bargain. The vast majority of journalists would be very much in favour of a system where we no longer have the Dowler and McCann-type stories.
Q317 Tracey Crouch: Brian, is this the thin end of the wedge?
Professor Cathcart: The thin end of the wedge? The charter is the charter, and so far as I am aware, it is now pretty entrenched. It does not suggest that there is some sort of creeping process of-
Q318 Tracey Crouch: Is that it for Hacked Off? Are you done?
Professor Cathcart: I am afraid there are some rather more recommendations of-
Q319 Tracey Crouch: So it is just the thin end of the wedge?
Professor Cathcart: You may see more of us. There are other recommendations. I am very keen to see recommendations 82 to 84, relating to the press and politicians, implemented.
Q320 Tracey Crouch: Final question: do you think in hindsight that there should have been representatives of the press industry there with you guys at midnight in the Opposition leader’s room trying to come to a final conclusion on this?
Professor Cathcart: It was not our call and I do not see why we would have an opinion, but I will say this: in the Leveson inquiry and the Leveson report, the victims were not found to have been guilty of systemic wrongdoing in some cases. They were not found to have wreaked havoc in the lives of ordinary people, to use the judge’s words. The victims, and on their behalf Hacked Off, were not asking for anything different from what the judge in a properly constituted public inquiry had recommended. The press, however, had been found guilty of wrongdoing, had been found guilty of wreaking havoc in the lives of ordinary people. They had a series of recommendations before them, which were extraordinarily measured and well-balanced, and they were trying and have been trying since that day, since the day of publication of the report, to have it rewritten or buried. We were there doing our bit in the effort to have the recommendations implemented and not to have them buried, diluted, shelved or whatever by some conspiracy with the press.
Max Mosley: Like the last seven times.
Professor Cathcart: Like the last, I think, it is six occasions.
Q321 Tracey Crouch: Max, how would you feel if the British Government decided it was going to change the layout of Silverstone and the Grand Prix and it had conversations with all the spectators and the consumers and the broadcasters, but did not bother to consult with the drivers and the manufacturers?
Max Mosley: I am completely out of my depth there. I do not know what is going on with Silverstone.
Tracey Crouch: It is a hypothetical question.
Max Mosley: I remember doing a campaign to get the road improved, but that was several years ago. I have been out of that world now for more than three years, so I have to plead ignorance on that, sorry.
Tracey Crouch: Can I just seek some clarity on-
Chair: We have three more and we do not have very much time, so if we can be fairly quick.
Q322 Philip Davies: Three very quick points: first, what was it that Mr Miliband and Mr Clegg asked you on Sunday night when you were at those meetings? What were they asking you?
Professor Cathcart: We were discussing the-
Q323 Philip Davies: We know what you were discussing. You were discussing the proposal. What did they ask you? It is a specific question. What did they ask you?
Professor Cathcart: Some detailed drafting points.
Q324 Philip Davies: Did they ask you if they should agree, sign up to, the final deal?
Hugh Tomlinson: No. As we understand it-we did not see this person-the Government had a parliamentary counsel in a room somewhere and occasionally documents were sent through and then the terms of the drafting were discussed. Oliver Letwin produced the documents and said, "This is what parliamentary counsel is proposing to meet the position. Is this a good idea or not?" and that was discussed. Nobody at any stage said to us, "Do you approve this document?"
Q325 Philip Davies: My final question is, you said in an answer earlier that you felt that you were speaking up for the public. The only politician involved in your campaign that I know of is sat behind you, Dr Evan Harris, and he lost his seat at the last general election; he was voted out by the public at the last general election. On that basis, how do you think that that shows that you are speaking for the public when the one person you have was voted out by the public?
Professor Cathcart: The first thing is I would refer you, when you see the transcript, to the words I used, which were not as general as you imply. Secondly, the evidence of opinion polls over a sustained period is that they want to see almost certainly something tougher than Leveson. They want to see effective press regulation backed by law. We are talking very high numbers. I am sure you are all familiar with polling, but we are talking numbers in the 70s. These are high numbers. The numbers contrary are almost negligible. The public feeling was pretty clear, I think, when you held your debate in the House of Commons in July 2011. What we are looking at now is the consequence of that.
Q326 Paul Farrelly: I am trying to get a bit of perspective with some of these questions and trying to remind myself that we are not moving on to new ground from some halcyon days of press regulations we have had to date. Brian, I remember it was your article in the New Statesman that was very influential in persuading this Committee to look at libel, privacy and eventually phone hacking again. That was your article entitled "How the Press Tried to Destroy the McCanns" and I remember at the time it was absolutely laughable to the McCanns to go and complain to a regulator that they felt was owned by all the editors who had accused them, effectively, of murdering their own child. My question for you now, Brian, and Max and Hugh, is do you think that a code of conduct would stand more chance of being enforced properly by a regulator if the committee overseeing it was not chaired by the editor of a newspaper that regularly breaks or ignores the code?
Professor Cathcart: We have endorsed the Royal Charter agreed by all the parties yesterday. We welcomed it. It entails an arrangement in which the code committee is essentially two thirds journalists and the membership of the code committee is chosen by the board of the regulator. That seems to me to be a good arrangement. Whether they choose the editor of any particular paper to be the chair of the committee, or whether the committee, once chosen, appoints that editor is a matter for them.
Q327 Paul Farrelly: That is not an answer. Yes or no?
Professor Cathcart: I think that is the answer you are getting, sorry.
Paul Farrelly: You should be on this side of the table.
Max Mosley: For example, the editor of the code committee under the PCC is Paul Dacre. I think it is worrying when somebody like that is the editor because just looking at one thing that the Daily Mail does, which is every time somebody attacks them or does something-the point that Hugh alluded to earlier-you get punished. For example, in my case, when I said something unkind about them during my evidence to Leveson, the very next day they resuscitated an article about my case from four years before. They did the same thing with Hugh Grant. He mentioned about the plummy-voiced person and said he could think of no reason other than phone hacking for them to have that information. He was immediately viciously attacked. There is something deeply unpleasant about retribution in that way by the press, as Hugh said earlier on. I would rather see somebody a little bit more neutral or one of the editors from a paper that does not indulge in those practices.
Hugh Tomlinson: Could I make one very important point that sometimes gets missed? The PCC has what it calls an editors’ code. What Lord Justice Leveson talked about was a standards code. One of the things it seems to us that is important to get away from is the idea that the code is written by the editors of national newspapers. In most European countries the code that applies to journalism is written by journalists. It is not written by newspaper editors at all. The idea that journalists are actively involved seems to us to be important. This should be a code that deals with the way that journalists behave when they are serving the public interest, writing about people, exposing wrongdoing and so on. Working journalists should have an important input into it. It should deal generally with journalistic standards. It should not be something that is the property of a small group of national newspaper editors. To that extent, I agree with you that the code committee should not be chaired by any particular editor. It seems to me it should be something that is the property of working journalists, including editors.
Q328 Angie Bray: On the back of something that you said, Mr Mosley, you thought that the chances are that under the new regime, if that is the right word, it would have been less likely that the original stories about you would have been published. It is certainly true that Justice Eady did say that he did not think, in the end, that what had been written about you was in the public interest. I think probably that was a finely balanced decision; it was debatable. After all, you occupied an incredibly senior position in one of the most important sports, so I think that is a debatable point. Would you not agree that this finely balanced situation is going to militate against publishing certain stories on the basis of erring on the side of caution? I think you have indicated you think that is true. Isn’t the public, therefore, going to lose something by that?
Max Mosley: With great respect, I think you are absolutely wrong about the fine balance. I do not think any rational person or any lawyer will ever say that that story was in the public interest because it had nothing whatever to do with the work I was doing. It was completely irrelevant and it was beside the point. The judge recognised that and he explained it in great detail.
Q329 Angie Bray: Would that apply to politicians, too, then? After all, they get exposed in their private lives and everybody thinks that is perfectly legitimate even though it may not be anything to do with the particular role they hold in Parliament.
Max Mosley: In my view, and I think it is a widely held view, if something affects their public life, so if it is information that the public need to have in order to make a decision, it should absolutely be published. But if it is not information that is relevant in that way, if it is a footballer having an affair or something of that kind, completely irrelevant to how well he plays on the pitch, it should not be published. But all these things are quite difficult decisions that have to be taken by a judge. What is important is that the matter should come in front of an independent person in the arbitral system who would then say yes or no. I think, if anything, the newspapers would probably be more courageous about publishing something difficult because, if they were under the regulator, they could be taken to the arbitral system and it would not cost them a fortune if they got it wrong. The problem at the moment is if a newspaper gets it wrong, it costs £1 million. It cost the News of the World £1 million plus what they did to me. So I think a system where it is much cheaper, much less expensive-it is also inquisitorial; it is simple; it is quick-is just infinitely better.
Q330 Angie Bray: One other very quick question. Would you care to comment on the views expressed by three leading QCs, including David Pannick who, when he was talking about the whole new system of exemplary fines and so on, claimed that the proposals were, "Objectionable in principle due to their arbitrary extension and what is widely regarded as an anomalous feature of English law". The opinion also said that, "The proposals single out a particular category of defendant rather than a particular kind of conduct".
Hugh Tomlinson: I am afraid to say he is wrong. The Law Commission looked at this 16 years ago, and they, unusually, conducted two separate consultations over their recommendations. They recommended that exemplary damages should not be abolished and, indeed, should be extended. That is a view that is also held by some distinguished Law Lords who regard exemplary damages as a necessary remedy in appropriate cases. You have to remember that in the Crime and Courts Bill amendments passed yesterday, proposed by David Cameron, the exemplary damages would only be awarded in cases where there is a deliberate and outrageous disregard of rights.
Q331 Angie Bray: Can you think of an example where that might have arisen in the past?
Hugh Tomlinson: Phone hacking is a very good example. If somebody-or you saw the-
Q332 Angie Bray: That is also illegal. People are going to prison for that.
Hugh Tomlinson: No, no. We are talking about civil damages. Look at the case involving a Member of this House, Siobhain McDonagh, yesterday where the Sun admitted in court that information had been obtained from a stolen mobile telephone. That is outrageous disregard of her rights. Under the present law, it cannot be the subject of exemplary damages. When this clause comes into force, it will be the subject for an award to exemplary damages. It seems to me that that is entirely appropriate. I have to say I have the greatest respect for David Pannick who is a QC of the greatest distinction, but I am afraid-
Angie Bray: He is just plain wrong?
Hugh Tomlinson: On this point, he is just wrong.
Q333 Angie Bray: A very quick final question if I may, because these are just little details that I am interested to get your comment on. Editors will now be forced to comply with rules on where they place apologies in their newspapers but also, as I understand it, corrections to stories. Who would decide what sort of corrections needed to be made?
Hugh Tomlinson: This will be decided by the board of the independent regulator after a complaint is made and after appropriate investigation has been carried out. If, as happens-and I am afraid to say it happens all the time in my professional experience-a newspaper publishes a story that says of you that you were seen staggering out of a nightclub at 3 in the morning much the worse for wear.
Angie Bray: Good heavens.
Hugh Tomlinson: You say, "I can prove that I was in France at the time. I was simply nowhere near it." The front page story is about you and it is completely false. At the moment, you go to the PCC; there will be to-ing and fro-ing; and eventually a small apology or a correction will appear on page 7 or something. The idea is the regulator-
Q334 Angie Bray: The wording would also be the regulator?
Hugh Tomlinson: The wording, ultimately, as in all regulators. I am part of a regulated profession and I am ordered to do things by the regulator if I get things wrong. But this is a self-regulator, so it is appointed by the press, as we know. The point of the board would be that, in the case I mentioned, it would be able to direct the newspaper to say, "When we published this story, it was wrong and we apologise," and that is perfectly proper as far as I am concerned.
Q335 Angie Bray: It might well be me staggering out of a nightclub at 3 o’clock in the morning, but you have picked a particularly clear-cut, extreme example. It might not be nearly as clear-cut as that. There could be times when you have various people lobbying for various causes that might wish to insert words or say that you have not quite described it in the right way. You could get down to some quite difficult decisions where the regulator would have to decide whether or not to take one side or the other and could end up having to basically take the editor’s role in this and say, "We are going to write it this way."
Professor Cathcart: We do assume that an independent board of people, duly appointed, would be able to form a view about what is fair and right.
Angie Bray: It should be the editor, surely-
Professor Cathcart: It is certainly a big improvement on a system where, routinely, the Press Complaints Commission in such matters, I am afraid, was likely to put the interests of the newspaper and the editor before those of the public and the complainant. I am sorry, but that is really what we are talking about. We are talking about regulation that is in the interests of the public.
Q336 Angie Bray: But you are going to open up the possibility of a lot of people saying they do not like the way they have been written about and they want to change the way they have been described.
Chair: We are going to have to move on.
Hugh Tomlinson: Sorry, forgive me, I just wanted to draw your attention to some words from Lord Justice Leveson’s report that were not in his recommendations but in the body of his report that were inserted in the recognition criteria to make the position absolutely crystal clear, "The board will have the discretion not to look at complaints if they feel that the complaint is"-I will leave some words out-"an attempt to argue a point of opinion rather than a standards code breach or is simply an attempt to lobby." It has been made absolutely crystal clear on the face of the document the board is not going to and should not respond to simple lobbying and opinion points of the kind you mention.
Q337 Mr Sutcliffe: I have listened with great interest to the range and types of questions that colleagues have asked this morning, and I am glad, Hugh, that you raised the case of Siobhain McDonagh, which was one I wanted to raise in terms of the overall nature of this and changing the culture. As a former Home Office Minister who appeared on the front page of the Sunday Times twice with scurrilous stories-the apology was on page 7 two weeks later-I understand the concern of victims. While a Home Officer Minister, we were always trying to, in the judicial system, put the voice of victims in the courts because clearly we thought that was important. Governments of all persuasions try to do that-the voice of the victims. You were quite right; seven times the opportunity has been given to politicians to do something about this and failed seven times. So I think Hacked Off has done a great job. But I really want to get your feel for do you think there is going to be a change of culture? Do you think this attack on what happened yesterday is a sign of a continual view that they are always right and we are wrong? Do you think there will be a culture change?
Professor Cathcart: I can only express a hope. I think that the framework is there for independent self-regulation that is effective. The framework is there. I do not understand why an industry that has been through what this industry has been through over the past few years should not want to step forward and say, "Bring it on. We want something that will enable us to show the public that we have high standards." They argue that they have high standards. This is a way of demonstrating it: engage with a proper regulator. The journalists working on those newspapers should surely welcome the idea, the opportunity to show that they are not operating in the kind of environment that gave rise to Motorman, that gave rise to phone hacking, that gave rise to all the horrible scandals that we have been talking about today.
Q338 Mr Bradshaw: Are they still in denial?
Professor Cathcart: They may be. Some of them may be. One of the important developments of the last few weeks is that we are not looking at a united picture in terms of the national press. I simply do not know with the regional press. I think that there may be some people in denial. Although, as I say, all I can express is a hope.
Q339 Chair: I have one very quick small one that is just for Hugh Tomlinson. You were very clear about David Pannick. A person who is a media lawyer, who I think was a former pupil of yours, suggested to me that the provisions in the Courts Bill that we passed yesterday on exemplary damages might be vulnerable to challenge under European law. Do you see any danger of that?
Hugh Tomlinson: No. I am very sad if a former pupil of mine has fallen into error in that way. The position is, first of all, the European Court of Human Rights does not award exemplary damages, although it is sometimes claimed. The Court has a little formula that is, "This Court does not, as a matter of practice, award exemplary damages." Note, not as a matter of principle, but as a matter of practice. I did a little survey as part of looking at the David Pannick opinion and I think exemplary damages are mentioned in about 25 cases, because they exist in England, they exist in Ireland and they exist in Cyprus, which are all subject to the Court of Human Rights. In none of those cases is anything negative said about the fact that they are available in the domestic legal system. So not only has the Court of Human Rights never condemned exemplary damages in its own procedure-it is just as a matter of practice it does not give them-it has not condemned them in the legal systems of the three member states that do have them. So, it seems to me-
Q340 Chair: The differentiation between exemplary damages being awarded to people who are outside the system but not to people who are inside, that could not be challenged under European law?
Hugh Tomlinson: The position is that if you discriminate, if you make a different award in different circumstances, you have to have a good reason for doing it. The good reason is that bodies that are regulated are subject to regulatory sanctions in a way that non-regulated bodies are not. The devastating, if I can put it this way, answer to the Pannick position is just to point out that in the United States, which has the strongest protection for freedom of expression in the world-it is a system that is uniquely really off the scale compared to most other countries-they have exemplary damages for cases involving freedom of expression. If the United States do not find them objectionable-they have them in Canada, they have them in New Zealand and so on.
Q341 Chair: None of those places are, of course, subject to European law.
Hugh Tomlinson: No. Sorry, I am just saying those places have constitutional protection for freedom of expression in similar ways to the convention and in none of those countries has it been found that their constitution is objectionable.
Q342 Chair: So you think a challenge here will not-
Hugh Tomlinson: A challenge would, I would say, be utterly hopeless.
Chair: Thank you.
Jim Sheridan: Can I just say, Chair, that in the court of public opinion, and in other courts as well, I have not had one single letter, e-mail, correspondence from constituents supporting the case for the press.
Tracey Crouch: I have.
Jim Sheridan Well, good luck.
Chair: So have I, but I am not sure we will prolong the debate about our own constituency correspondence. Thank you all very much for your time.
Witness: Seamus Dooley, Assistant General Secretary, National Association of Journalists, gave evidence.
Q343 Chair: In the second part of this morning’s session, I welcome Seamus Dooley, the Assistant General Secretary of the National Union of Journalists. Thank you for your patience waiting for the start. Can I kick off by asking you the same question I asked the previous panel at the beginning, which is what your reaction is to the agreement reached in Parliament yesterday?
Seamus Dooley: First of all, thank you, Chairman. I am based in Dublin and I am a founder member of the Steering Committee of the Press Industry Council in Ireland. I am a member of the Administrative Committee of the Press Council and, therefore, I bring with me a knowledge of the foundation of the Irish system. I work very closely with representatives of Associated Newspapers and News International and, indeed, the owners of the Star, which is partly owned by Northern & Shell. So I have worked very closely with representatives of the companies who are now jumping up and down and getting very excited. I was reminded of a phrase that a colleague on the council said to me when the same fears were expressed when we talked about some form of statutory reinforcement. That was that there is sometimes, "Nothing more eloquent than a vested interest disguised as a point of principle." The sky is not going to fall down. The world is not going to stop revolving.
I would have preferred if there had been consultation and if the NUJ were in that room the other night. But-do you know what?-the editors got what was coming to them because we have been locked outside the PCC for years by the same organisations. So pardon me if I do not cry completely for them, but there has been something deeply unedifying about the principle of press freedom and accountability being debated in private. That was not what Lord Leveson envisaged. We as a union sought engagement with the owners. We did not have it. We are appearing before this Committee at a very late stage. We have not been included. We are the representatives of 30,000 journalists in the United Kingdom and in Ireland, and we have a track record. We are the union of Shaw; we are the union of George Orwell. We are the union that represents the journalists up and down the country who behave ethically every day of the week.
So I would prefer that we had arrived at where we are in a different way, but I think that what has emerged over the last 48 hours is the beginning, hopefully, of something that I believe and the NUJ believe has the capacity to serve the newspaper industry and the public interest. But it will not, on its own, change the culture that was identified by Leveson. It will be an improvement on the PCC because anything would be, but it will not change the culture of bullying that was accepted by Leveson. Our members, on a daily basis, face the same kind of pressures as politicians or anyone who dares to challenge the consensus. British editors are unique, and it is interesting that we have the issue of the Royal Charter, because they seem to think they have the divine right of kings. No other regulatory system involving journalism is based on the presumption that it is an editors’ code. The problem is in the wording. The problem is that the function of journalism is, by definition, active. You need the involvement. In Ireland, our experience was that when the newspaper industry nominated people to the Code Committee and to the Press Council, they did not automatically nominate Madam Editor; they did not nominate Sir Editor; they nominated, in some cases, an editor. The Sun, which does not agree with statutory underpinning, nominated the editor in Ireland. Other organisations nominated what I would call production journalists and you have that skill and that mixture.
One of the problems about the debate in the last 48 hours or so has been the focus on the regulatory system and not on the code. The regulatory system is meant to enforce standards and what I think might happen-I hope would happen-over the next week or so is that when the newspaper owners get over themselves and look at what is being proposed they might accept that what we need to do is how we can win back the trust of the public, because the public in England, Scotland, Wales and Northern Ireland, throughout England, are the customers. I do not know of any other industry where you actively seek to get up the nose of everyone who buys your paper or the people who you write about. There are good reasons why journalists are sceptical about an all-party consensus on anything. Journalists are trained to be cynical. They should be cynical.
Where I differ from, perhaps, Hacked Off is that I recognise that, first of all, the majority of journalists behave ethically and honourably and break news stories on a daily basis. Where journalists in the public interest are forced to break the law, they do break the law and I defend them. We claim protection for the protection of sources in the public interest, but that also means we have to accept responsibilities. I think what we need in this debate is to look at why we are where we are.
Q344 Chair: Do you think there has been any improvement in the culture you referred to since all this saga unfolded?
Seamus Dooley: It has got worse.
Chair: It has got worse?
Seamus Dooley: It has got worse because anyone who has dared to support publicly Lord Leveson, in terms of-and we have seen it on a daily basis. I have seen the coverage of my own General Secretary, Michelle Stanistreet, who has been the target of a campaign by the media. Within the industry itself, we are still dealing with bullying complaints. We are not recognised as a union in many of the organisations that are crying over the loss of freedom of expression. The people who are talking about running to Europe in relation to the right to freedom of expression are not so clear on the European obligations in relation to the right to organise, the right to be represented. This is an element of hypocrisy there.
I think that this debate in a way has obscured some of the other things that are happening in the media, in the newspaper industry. The problem, the big threat to freedom of expression, the threat to the media, does not come from Hacked Off. It came from the small group who engage in criminality and the executives at the highest level who, it has been proven, give precedence to market share over editorial values. That remains a problem. It is interesting that what has been lost in all of this was the cross-party agreement, confirmed by the Prime Minister on the day of the launch, that there would be a conscience clause that journalists could invoke to say, "I am not going to engage in criminality," and that the law will protect that. It is a pity that in that room the other night-the conclave mark 2-there was not a discussion on a conscience clause. Of course, bringing you back to the evidence of Mr Murdoch when someone said, "Why did the woman just not give up her job?" and Lord Leveson rightly intervened to say, "Maybe she needed it. Maybe she needed her job."
We were told at the outset that this was a rogue reporter; it was an individual. What Leveson showed was that there was high level organised criminality. I believe that that is not happening, but I believe that the culture and the statements over the last few days seem to suggest that publishers and editors still do not get it, that we need to clean out the stables and we need to bring people with us and it needs to be collaborative.
Q345 Chair: The new regulatory system that is being put in place will potentially deal with criminality, invasion of privacy, libel, but none of the bullying culture you were talking about, where newspapers decide to pursue somebody in a vendetta because they have crossed them in some way, will be affected by the new system at all, will it?
Seamus Dooley: I think that the acceptance, an acceptance of the new system-I wouldn’t be optimistic-in time would lead to a change. I can draw on my own experience that initially the involvement of civic society reps was viewed by publishers-and not just British publishers, some Irish editors as well-as being busybodies, as people coming and telling us what to do. In fact, the involvement of civic society reps within the Press Council of Ireland has given a valuable impetus to the Council in terms of the media getting feedback of people involved in community groups-everything from lawyers, Citizens Advice, Immigration Council-and it is a public advertisement; there has been an engagement. One interesting fact is that the Council very seldom breaks down on a vote, but there is never a vote that goes exclusively civic society reps versus industry reps. That does not happen. I am not on the Council but knowing the Council members, some people who would have come in with a very cynical view of the media have now said that they have a greater appreciation.
It is also worth noting that the Irish Press Council initially was established without statutory underpinning and then, in return for libel reform, gained statutory recognition. It has not made any difference. It is early; we have not had the experience of the failure of the PCC, but where I think we were helped was that we had a genuine collaborative process of a press industry steering committee that brought people together, and the UK press missed the boat, bluntly, after Leveson. They should have had a more active engagement because what Parliament has now done, effectively, is said, encouraged by Hacked Off, "If you are not going to do it, we will help you do it." I would have preferred if they had done it together collaboratively rather than having the situation where we are now.
Q346 Conor Burns: Peter Oborne has written this morning about how he rejoined the National Union of Journalists when he was working with the Daily Express when it was taken over by Richard Desmond. He spoke of the disgraceful treatment by Mr Desmond of some of the more vulnerable staff on the Express and how he saw the National Union of Journalists standing up for those members of staff. He is speaking from a position of being well-disposed towards the NUJ. He then writes, "For some time, however, I have been increasingly disturbed by the NUJ’s growing sympathy for state control over the press. If the union represented journalists, as it claimed to, it would have been up in arms at yesterday’s squalid deal, which has granted politicians power over newspapers for the first time in 300 years. It would have fought all the way. Instead, the NUJ has been largely silent and a shameful collaborator with Hacked Off and its rich and powerful backers. I tried to warn the union secretary, Michelle Stanistreet, about this, but she would not listen. Yesterday, she threw her weight behind the stitch-up between the political parties." He then goes on to say that he is resigning from the NUJ, as he describes it, "with disgust, and I urge all other journalists to do the same." I just wondered what your reaction to that would be.
Seamus Dooley: I regret the resignation of any journalist, of any member, but we are firmly committed to journalism rooted in ethical values, independent, challenging, respectful journalism that is not afraid to test the boundaries. If we believed that what was proposed yesterday was state-controlled then we would clearly oppose it, but you know and I know that it is not, and if you look at the Bill, it does not allow a situation where there are effectively state control in newsrooms throughout the country.
The real disgraceful behaviour is the behaviour of those who brought us to where we are today-the criminality, which we opposed; the failure to adhere even to their own code. I understand that for many people any form of state regulation, or what smacks of state regulation, is frightening, but what we have is a guarantee of quality and ethical journalism. That is what it is. It is unfortunate that the media didn’t embrace Leveson more enthusiastically earlier on, but I would hope that when the heat dies down there is the opportunity still to devise a structure that can genuinely allow for challenging journalism.
My problem and my union’s problem with what has happened over the last couple of years is give me one example where the public interest was served by the behaviour that was exposed by Leveson. We are talking about titillation; we are talking about serving public curiosity, not the public interest. I would defend the hacking of a phone if I thought the greater good, the greater public interest was served. I would have no problem with journalists stretching to the limit what they have to stretch in order to expose the truth, but what Leveson showed was a replacement for journalism with attempts to increase profit. That is all it was.
Q347 Conor Burns: While I would join you in condemning almost all the illegal actions of journalists, I wouldn’t necessarily, and nor would the public, condemn the illegal action of the theft of a disc from this place that exposed profound wrongdoing at the heart of Parliament. Would you agree that Peter Oborne is reflecting a deep scepticism among many ordinary, decent journalists about the path that we set off on yesterday?
Seamus Dooley: I am an ordinary, decent journalist. I have worked as a regional newspaper editor; I have worked as a national newspaper editor. We have 30,000 journalists in this union who are appalled by much of the behaviour that has taken place. There is a concern; there will always be a concern; but it is simplistic to believe that the greatest challenge facing journalism in the United Kingdom stems from the Royal Charter. The greatest challenge facing journalism is the running down of editorial resources and the displacement of news.
Q348 Jim Sheridan: State control of the press-you know that is a right-wing reactionary statement. There is no such thing in this country as state control of the press, but there is the other extreme of the press being owned by a small minority of very rich millionaires who run the press, and I think that is a bigger threat to democracy in this country than any potential threat of state intervention. Can I just say that we heard in an earlier evidence session from the Irish Press Council via conference link that the NUJ in Ireland play a very positive role in terms of regulation and so on? Could you give us any examples of what they mean by that? What positive role do you play?
Seamus Dooley: First of all, the original Press Council of Ireland was established through collaboration between the national newspapers of Ireland, the regional newspapers of Ireland, what was then the UK press in Ireland, who became so enthusiastic about the model that they joined the NNI and the NUJ under an independent chair. We nominate a member to the Press Council of Ireland. We serve on the Code Committee and we serve on the Finance and Management Committee, so our role is ongoing. In addition to that, for instance, we have run training courses or promoted training courses with the Press Council of Ireland. So we have, over many years, been involved in that collaborative model.
What is interesting is that in the way that nothing concentrates the mind like the imminent prospect of hanging, it was the threat of a privacy bill, it was the threat of state intervention that brought all the players together, and had we as a union felt that there was any fear of state regulation in Ireland, we would not have engaged in what has happened. That is why we can confidently say that we believe that the industry in the United Kingdom-and by "the industry" I mean the owners, the editors, the workers who are members of the trade union, working with civic society-are big enough and have the imagination enough to work to ensure that the model does not cede control to the state. I watched the full debate yesterday. I do not believe there is anyone who took part in that debate who wants to take over any of the titles in this country. I think the politicians do not have that desire.
Q349 Jim Sheridan: I would hazard a guess that in your role you will have had a number of colleagues over the years who have threatened to resign for any particular reason. As Members of Parliament, we regularly get correspondence from constituents threatening that, "If you don’t do what you are told, then we will not vote for you at the next election." Will you lose any sleep over that?
Seamus Dooley: We would have to respect the sincere conviction of any journalist who feels that this is a threat, but in the same way we have received significant applications from people who had previously not been members of the union but who joined because of our position on Leveson. Our policy in relation to press accountability was discussed at our delegate meeting last year. The position of the General Secretary was endorsed. If we were to move away from current policy, we would consult our members. That is what trade unions do every day of the week. Although, we will not be dictated to and we will not be bullied by the Telegraph or by News International or by other media organisations who have a selective view on what is and is not a human right.
Q350 Jim Sheridan: I wholeheartedly agree with you about the lateness with which you have been brought in and the fact you have been snubbed by many of the press organisations, but given what has happened in the past and what could possibly happen in the future in terms of individual journalists being tapped on the shoulder and told, "You are being charged," or prosecuted or whatever it may be, what protection is given by the industry to these people?
Seamus Dooley: I am not sure I understand the question, Mr Sheridan.
Jim Sheridan: If a reporter is tapped on the shoulder and told, "You are now charged for carrying out an illegal phone hacking practice," or any other form of criminality, is there any support given by the industry to the individual, or does the editor say, "It is up to you, guv. Nothing to do with me."?
Seamus Dooley: If an NUJ member was charged then we would provide representation in the normal way. What happened, if you remember, at News International is quite clearly they just sought to pretend it did not happen, that it was all one rogue reporter, that the greater criminality was not carried out by professional journalists but by hired private operators who were not bound by any code. That is why I think it is the code and the culture around the code that is important. The debate on what is essentially a mechanism is understandable perhaps, but it has been given a greater prominence than the debate that is needed on the code and the possibility of a conscience clause, and I see those as two sides of the one coin.
Q351 Jim Sheridan: Just on the conscience clause, could you give us an example of a journalist who says to the editor, for whatever reason, "I really don’t want to run with this story, so therefore I don’t want to write it."? Does the editor say, "Okay, fine. That is okay."?
Seamus Dooley: No, the editor clearly does not say that and obviously there is an employment relationship, so you cannot invoke the code of conduct or the NUJ code on everything. If I am a journalist and I am told that I have to go out with a photographer and sit outside Jim Sheridan’s house for the night to follow him because he is visiting the house of someone who we think that he is up to something with or doing something nefarious or that he is attending meetings, I have a right to say, "In conscience, I am not doing that. That is a breach of Mr Sheridan’s privacy," and the editor has to justify that. That is a very difficult thing to do if you are in a situation where you have an employer who does not recognise your right to be represented by a union, and that is what happened in News International.
Q352 Jim Sheridan: Just finally, is there any evidence, anecdotal or otherwise, of reporters, journalists, working alongside the police and giving them information?
Seamus Dooley: I think it came out. The relationship between police and journalists is clearly outlined as part of Leveson, and there was an unhealthy relationship with some people between police and journalists. That is not to say that in their work journalists do not have their own sources and regularly those sources are important because they perform the role of whistleblowers. Moving back to my own country of residence, there was a major police story involving the Gardaí in Donegal and that would never have been revealed without the action of whistleblowers. The protection of whistleblowers is something that also needs to form part of the debate in the media. The problem with Leveson is inevitably that it is a very detailed report; it is a very broad canvas; we are looking still at one only part of it.
Q353 Angie Bray: Good morning, Mr Dooley. I was going to follow on from some of the points raised by my colleague Conor Burns. As he quoted to you from Peter Oborne, there is a piece from Andrew Gilligan in his blog. He was also resigning his membership of the NUJ-you may be aware of that-and he quoted particularly a piece written by Chris Frost, who is head of the NUJ’s Ethics Council, in the Press Gazette in which Chris Frost basically said, "The right to free expression cannot be absolute. The key is to allow as much freedom as is concomitant with the rights of others, balanced by the public interest. If I buy a newspaper, I expect the news to be reasonably accurate, gathered ethically and a fair selection of the day’s important events." That would tend to suggest he believes that somewhere up there there is going to be somebody who can decide what a fair selection of the day’s events would be.
Seamus Dooley: Yes. They are known as editors.
Q354 Angie Bray: "Ethically selected." What did he mean by that, do you think? It was certainly enough to drive Mr Gilligan away from the union.
Seamus Dooley: I particularly regret Mr Gilligan’s resignation because of the outstanding service given to Mr Gilligan by the NUJ in representing him in his previous troubles.
Angie Bray: Indeed, he acknowledged that in the same article and said that he had been grateful for your support in that.
Seamus Dooley: Sometimes perhaps people should hold their head.
Q355 Angie Bray: But he wondered what the point of the union was if that is the view that it takes.
Seamus Dooley: There is nothing wrong with what Mr Frost has said, unless we are taking exception to the fact that ethical journalism exists. There is such a thing. When he talks about a selection, that selection process happens every day by editors. If you read the quote again, that is what he is saying. He is saying that he expects that the decisions will be taken by editors on ethical grounds, and I think if you look at some of the coverage that was exposed in Leveson and that led to Leveson, the hacking scandals, what he is saying is that was not journalism. I would make the point as well-
Q356 Angie Bray: You open a newspaper. What do you expect to see then-a selection of stories that have been ethically chosen and a fair selection of coverage? What do you think he had in mind? What would be the sort of coverage?
Seamus Dooley: I think if you want to find out what Professor Frost has in mind you should invite Professor Frost, with due respect. From my point of view, I would make the point that not everything in a newspaper has to be serious, not everything has to be in the public interest. Some of it can appeal to public curiosity; some of it can be entertaining; some of it can relate to sport or to television or cinema; and others can be less important things such as politics; but all of it is meant to be a mixture. Where the problem arises is when news values are sacrificed in such a sensational way that people are needlessly hurt. There are times, as has been pointed out already this morning, where it is necessary to intrude on privacy, but it has to be in the public interest, and that is absolute consistent with the NUJ code of conduct.
Q357 Angie Bray: A final question: a lot of journalists have been arrested, some of them dragged out of their houses at 5.30 in the morning, and there is a lot of feeling among a lot of journalists that they have been very poorly let down by their bosses. What has the NUJ been doing to support them?
Seamus Dooley: I think that the NUJ has been extraordinarily supportive, where it has been allowed to be supportive, but in the case of News International, where I repeat we are not recognised, there has been an extraordinary situation of collaboration with police and compromising confidential authorities, not because Mr Murdoch and his colleagues had a sudden rush of the ethics, but in order to protect the business reputation. We would have a real concern about that.
Q358 Chair: So you are unhappy with the activity of the Management Standards Committee?
Seamus Dooley: Absolutely. It is utterly removed from any ethical considerations, and the activities of that committee are a cynical attempt to protect the business brand. A bit late in the day, but that is what it is for. It is far removed from ethical considerations.
Q359 Paul Farrelly: I used to be a journalist. I worked for Reuters and for two newspapers-the Independent on Sunday and the Observer-and I can safely say that none of those organisations had a bullying culture. I was never forced to write a story that I didn’t want to write or would not have chosen to write; but when you talk about the culture of newspapers in terms of bullying, are there any organisations that, in your experience, are worse than others?
Seamus Dooley: I don’t think it would be appropriate for me particularly to deal with that question, because I deal industrially in Ireland and that is where I represent people on an industrial basis, but if you read the evidence given by Michelle Stanistreet, clearly there were issues in News International titles. They are not alone, but they would certainly have been the ones that were highlighted.
Lord Leveson initially was opposed to the idea of the principle of anonymity, and I would have disagreed with my General Secretary initially in that I felt that people should come forward and give evidence in public at a public forum. When we conducted the survey, we were overwhelmed by the statements received and the degree of pain and suffering felt by people of all sorts of ages about what they were being required to do. Lord Leveson accepted the application from counsel from the NUJ that we would file the affidavits under an anonymous clause and that they were presented by Ms Stanistreet. If you have the opportunity to read some of those testimonies, you will understand why we believe the issue of bullying is a significant problem.
One of the issues around journalism, I think, is it is very much a macho profession. It is a profession where you are expected to be hard and go out there and put the foot in the door. The story is told of one woman who rang and said, "I have knocked on the door. The mother says she doesn’t want to talk to me. What will I tell her?" and the news editor said, "Try to tell her that if you don’t get a photograph you will lose your job." That kind of thing happens.
Q360 Paul Farrelly: Can you remind us which organisations and publications most strongly opposed your application to give evidence anonymously?
Seamus Dooley: As far as I know, that was Associated Newspapers and-
Paul Farrelly: Associated Newspapers publish?
Seamus Dooley: The Mail Group, and I think we took some delight in highlighting the fact that the same group had defended the right of anonymous witnesses in the Saville inquiry in Derry.
Q361 Paul Farrelly: So there was an element of hypocrisy there, did you feel?
Seamus Dooley: Not for the first or last time.
Q362 Jim Sheridan: Unfortunately, there are not many of your colleagues here today to report your evidence, so I don’t anticipate it will be in any of the newspapers tomorrow.
Chair: It will be in the published report of this Committee.
Seamus Dooley: Thank you very much.
Chair: Thank you very much.