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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 143-iv
House of commons
TAKEN BEFORE THE
Culture, Media and Sport Committee
Thursday 10 October 2013
Rt Hon Sir BRian Leveson
Evidence heard in Public Questions 768 - 912
USE OF THE TRANSCRIPT
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Taken before the Culture, Media and Sport Committee
on Thursday 10 October 2013
John Whittingdale (Chair)
Mr Ben Bradshaw
Mr John Leech
Mr Gerry Sutcliffe
Examination of Witness
Witness: Rt Hon Sir Brian Leveson, gave evidence.
Q768 Chair: Good morning. This is a further session of the Committee’s inquiry into regulation of the press and I welcome to the Committee this morning Sir Brian Leveson, as I understand you are now, following your appointment as President of the Court of the Queen’s Bench. Is that correct?
Sir Brian Leveson: I was always Brian Leveson.
Chair: You were, but we should now call you Sir Brian, rather than Lord Justice Leveson.
Sir Brian, it is now very nearly a year since your report and we do not seem to be that much closer. Parliament is still arguing about how best to put into effect some of your recommendations. Is that a cause of some frustration to you that it is taking so long?
Sir Brian Leveson: Mr Chairman, you will remember I made the point that you only had to look at the efforts that have been made to deal with this very difficult issue over the last 70 years to realise that the strength of feeling, which would be generated by any intervention in this area, was always going to be very substantial. It would have been incredibly naive of me to expect that the conclusions I reached, or the recommendations I made, would necessarily have been universally accepted by all. One of the reasons for the very real effort that I and my team put into preparing the report within the timeframe that I did, was to allow the space for those who wished to discuss this issue and to make the decisions; the space to do that, because I was not there to make any decisions at all. I was there to make recommendations.
Q769 Chair: You say that you anticipated that this would be controversial and hotly debated. Did you anticipate that it would receive such criticism from right across the whole of the press?
Sir Brian Leveson: I did not focus on the way in which individual members of the press would react. What I did was seek to find the right balance between what I have always asserted and believed is the essential freedom of the press and the rights of others. I do not for one moment believe that the recommendations that I made jeopardise the freedom of the press. I did not suggest any form of statutory regulation of the press. Although there were a number of submissions to the effect that I should do, I did not. I tried to find a way that accurately reflected the importance of Article 10 of the Convention but also had appropriate regard to Article 8 of the Convention.
Q770 Chair: Perhaps I can come on from that because you will be aware that, while you were careful not to recommend statutory regulation, nevertheless you did suggest a degree of statutory underpinning and that also met with quite a lot of hostility. It was for that reason that another mechanism was sought, which would give an underpinning but did not involve legislation. That of course was the mechanism of the Royal Charter. The Royal Charter does not appear anywhere in your report. Is it something you thought about, and do you think that a Royal Charter is an effective way of delivering the kind of system that you want?
Sir Brian Leveson: If I unpick your question and split it into two. The first part of my answer concerns what has been called "underpinning". What I recommended in my report was a mechanism not to check on the press but to check on the regulator, to ensure that the regulator was independent and effective. That was the limit of the role that I recommended for what I think has been called "the recogniser". The recogniser would have absolutely no responsibility for anything that the press printed. The only body regulating the press would have been the independent self-regulator, on the scheme that I recommended. You are absolutely right to say that the concept of a Royal Charter is not mentioned in my report. I did not think of it and, what is more, nobody suggested it. I received submissions from hundreds of people, from dozens of bodies, and it was not a concept that came to me then or at any stage during the course of my deliberations.
Q771 Chair: Nevertheless, we are now at a position where both Parliament and the press appear to accept that a Royal Charter is a good way forward. Do you think it is an effective way of delivering a system that will meet your objectives?
Sir Brian Leveson: I am afraid that we may have hit a red line. I would like to explain because it may be important to understand the position that I adopt. I was asked to conduct this inquiry and to produce recommendations. There is a big issue as to whether judges should conduct inquiries, and there are both advantages and disadvantages. As I said yesterday, the advantages are that you have the experience of a fact-finding about past events. That is what I have done as a judge, and that is a role in which I have been involved all my working life as a barrister and a judge. Secondly, a judge has the ability to deal with procedural and legal complexity, to conduct a hearing to time, to keep people focused and to ensure that one is not taken down diversionary tracks that take a lot of time. Thirdly, I hope, the skill to analyse a large amount of data, to produce recommendations based upon evidence, and bearing in mind competing legal considerations, which I have already mentioned in this case were Articles 8 and 10 particularly.
The other problem or advantage of appointing a judge-and it is both an advantage and a problem-is that the judge comes with absolute independence. That is a problem because I would not have undertaken the inquiry had it not been for cross-party support, and for me independence means independence from Government, independence in my thinking from Parliament, independence subject only to challenge in court, because my decisions were all potentially subject to judicial review. That also carries with it the fact that no serving judge will ever comment upon a previous decision, either his own or of a colleague. We could debate the position but, for a number of reasons, I am very firmly of the view that it would be quite wrong for me to comment on what is now a politically contentious issue. I use that word with a small "p", where there are enormous issues between politicians, the press and the public as to the way forward. It is very important that judges simply do not get involved in these issues. Although it might be argued, "You are the chairman of the inquiry. We could have had someone who was not a judge," that is not the way it went. For better or worse you chose a judge.
I will give you a good illustration of a problem. I could comment on a Royal Charter. I could comment on various of the other bits and pieces of my recommendations. Anyone who disagreed with what I thought would say, "Hang on a minute, here is a judge who heard the evidence, who has presented all the evidence for everybody to see. It is all there on the website." Some might say, "Who provided a report in exceptionally tedious detail," simply so that everybody could see precisely the evidence I accepted and my workings, I kept nothing back. "He is now opining on issues that have not been the subject of evidence, that have not been the subject of argument"-I have not heard submissions from the two sides-"and he is doing so when he has told the Prime Minister he has done his report, part 1 of the inquiry is concluded, so he has no authority to speak." Somebody who disagreed with what I said would have a very serious argument to that effect.
It is for that reason that I think the Chief Justice wrote to you. I hope you do not mind if I quote him, "I am extremely concerned that the judge should not be asked to comment about matters which are in the political sphere, even when those matters arose out of the inquiry that he has conducted. There can be no doubt that the principle of whether the competing models of self-regulation satisfied the principles set out in Lord Justice Leveson’s report is at present an intensely political issue. Any judge asked questions about such matters would have no alternative but to decline to answer. The extent to which Lord Justice Leveson could assist the Committee would be to invite it to draw its own conclusions from the relevant sections of his report".
I wrote when you asked me, and I have a profound respect for Parliament and of course I would never say "No," but it is why I did write, "As regards the issues you wish to raise, I hope you will not mind my repeating what I made clear at the conclusion of the launch of my report last November, I said, ‘I believe that the report can and must speak for itself; to that end, I will be making no further comment. Nobody will be speaking for me about its contents, either now or in the future. The ball moves back into the politicians’ court: they must now decide who guards the guardians.’" I apologise for using the words that I used at the very beginning. I read on, "I take the view that I was appointed as a judge to conduct the inquiry by the Prime Minister after he had consulted with the Lord Chief Justice of England and Wales. I can visualise circumstances in which it might be appropriate to ask a judge who had produced a report to update his expressions and views, in the light of subsequent developments-and I will give you the illustration of that-that would not, however, be appropriate, whereas here the issue has become one of intense political or at least public debate. To comment further would be to enter the political arena in a way which would be entirely inappropriate for a serving judge. By way of example, as you are well aware, Parliament has endorsed the proposal for a Royal Charter, which was not one of my recommendations. It has also introduced legislative change. I consider it to be entirely inappropriate for me to comment on anything connected to the parliamentary process."
If I give you an illustration, the exception is if a judge conducted an inquiry into something concerned with the administration of justice. Lord Justice Jackson’s review of costs was not a 2005 Act inquiry but it is entirely appropriate that Parliament having spoken, and the decisions having been made as to how the procedure in relation to costs should be modified, that he should be involved in the implementation of what was his report and the recommendations from it.
I am not trying to be difficult. I am not trying to avoid what are understandable questions, but I am trying very hard to preserve what I believe are the correct lines between what I have done and what you are now doing. Recommendations are recommendations. To confirm the position I do not merely rely on Lord Judge, but, in the light of the comments that were reported that you uttered yesterday-I do not ask whether they are right or not-I did make sure that I checked with the present Lord Chief Justice, Lord Thomas, to find out whether he took the same view. He absolutely did. So that is why I take the view that I take.
Q772 Chair: I understand that. You are entirely right that I had several exchanges with the Lord Chief Justice, and I am very pleased that you did eventually decide to accept our invitation to appear before the Committee.
Sir Brian Leveson: I never declined. I accepted two days after you first invited me.
Chair: It was with Lord Judge that the initial exchanges took place, as you know.
Can I express a degree of frustration, which I hope you will understand? We have reached a position where the Prime Minister told me essentially we were stuck. There is a position where Parliament has taken a view with the Royal Charter. There is a position where the press has taken a view and produced a different Royal Charter. You initially referred people to your report. Obviously in this area we cannot look at your report because you did not mention a Royal Charter. Both sides are arguing that their version delivers your recommendations; that they will establish a system that is essentially a Leveson system. There are details where the systems differ from the recommendations in your report but, in terms of trying to move this process on, to get agreement, you are somebody who spent 15 months taking evidence. You have headed an inquiry that cost £5 million. You took evidence from a huge range of people. It would be enormously helpful, in terms of trying to resolve these differences and trying to get agreement, if we could at least hear your view on that subject. The fact that you say that, because you are judge, you cannot express one is extremely frustrating for us as parliamentarians when, at the end of the day, you were appointed to make recommendations to Parliament.
Sir Brian Leveson: Yes, and I did. As I said, at what might be thought to be tedious length. Part K of the report-and I am delighted to see that Members have copies of all four volumes-is 216 pages long. Chapter 1 identifies my criteria for a regulatory solution. I put those criteria into the public domain in May 2012 and invited representations upon them. I received some that I have analysed. Chapter 2 is an 18-page detailed analysis of the recommendations put before me by the Press Standards Board of Finance. Chapter 3, in 36 closely typed pages, analyses every single one of those features. Chapter 4 deals with 56 pages of other recommendations made by a myriad of bodies. Chapter 5 goes abroad and looks at the international. Chapter 6, in 13 pages, deals with techniques of regulation. Chapter 7 identifies my proposals and my reasons in 34 pages. Chapter 8 deals with some alternatives. With great respect, it is all there.
I cannot unpick that further. I deliberately put it all in so that everybody could read it. I am certainly frustrated that people talk about statutory regulation of the press, which I do not believe what I recommended even starts to be because, as I have said, the recogniser has absolutely nothing to do with what the press print. It merely deals with ensuring independence and efficacy of the regulator. So it is very difficult to start unpicking what I have said. I did not consider a Royal Charter. I felt there had to be some formal mechanism because I attached advantages to being within the regulator club. Those advantages were going to require statutory and procedural change. It struck me that it was important, which is why I recommended it, that Parliament endorsed the carrots of advantage if you joined the club. That was the idea behind it. That was the reason why there had to be a recogniser saying, "Yes, independent; yes, efficient." I did discuss different ideas for the recogniser. What was important was that there was a recogniser. I say precisely how you organise that is a matter for you. Recommendations are recommendations. There it is.
Q773 Chair: We have gone a long way to getting a system with a recognition body that, as it happens, will now be established under a Royal Charter rather than the mechanism you envisaged. Nevertheless, we are going to have a regulator and a recognition body. We are at this point where there are significant differences-but I hope not insuperable obstacles-between the different competing bodies. As you know, there is a short timescale in which discussions are taking place to try to see if we can find a solution that everybody can support. Your message to this Committee is, "With great regret, I cannot help you. I cannot express any view as to whether or not this particular element of a Royal Charter works or is unacceptable" in terms of your recommendations.
Sir Brian Leveson: I would say, with the very greatest respect, I have done. That is what I think I have done. You have to go into chapter K1 and particularly K3, the analysis of the proposals by Pressbof, and K6 and K7. I honestly believe it is all there. If you ask me to pick and choose, then I come into the problem that I would need to know why. I would need evidence. I would need submissions. That is how I work. It is a judicial exercise for me and I have finished. I do not have any authority to do that.
Q774 Chair: Having had all those submissions and spent that time, you are now pretty much an expert in this area. As somebody who has spent a huge amount of time and listened to an enormous amount of the material, you are extremely well placed to express a view. That is why I think Parliament would find it very helpful if you could express a view, but you do not feel that you can do that within your role as a judge?
Sir Brian Leveson: I do not feel I can do it because, first of all, I think it would be entering into a political argument-and I use that word with a small "p" always-and secondly, because I could legitimately be criticised for reaching conclusions about matters on which I had not heard evidence or listened to the contrary argument. Assume I said, "Yes, this would work and this concession should be made," or whatever, then the side against whom I was making the concession would say, "Hang on a minute, you have not heard the arguments. Why not? We have adopted or rejected this part of your report. Therefore, that has consequences." I cannot unpick all that and, therefore, inquiries have the benefit of recommendations.
I can understand your concern and I can equally understand your frustration. Equally, I hope you will understand that I do have a degree of frustration; I spent a very long time working extremely hard to give you the opportunity to work it out with the press and those affected by press abuse together, and I hoped that they would and I hope you will. I said this not just at the end. I have said from the very first seminar that I held and, indeed, in discussions I had with editors and others, "This is your problem, not mine. It has to work for you but it has to work for the public as well. In my judgment, it has to work for those who feel legitimately that they have been abused by the press." One of the interesting features of the analysis of my report is that there are great chunks of the report that nobody has sought to challenge in any way, shape or form.
Q775 Chair: Sir Brian, you have been very clear. A number of my colleagues have questions about your recommendations and the process by which you reached conclusions, which I hope you will find able to address. Before we go to that, I am going to invite one or two of my colleagues to ask questions that you may respond to in exactly the same way you have just responded to me, but I am at least going to allow them to test that.
Sir Brian Leveson: Of course.
Q776 Angie Bray: Sir Brian, you might be interested to know-probably not surprised to know-that yesterday particularly I was the recipient of a mass emailing campaign from supporters of a campaign purporting to support the implementation of something they call the Leveson Charter. I am not aware that such a charter exists, are you?
Sir Brian Leveson: No, which charter is this?
Q777 Angie Bray: The emails were all almost identically worded, which would suggest that they are driven from some kind of campaign headquarters. It does seem to me, at least, that it is the conflation of your name, your reputation, indeed your report, being hijacked by a campaign to implement the draft Royal Charter that is being supported by the three political parties. I wonder whether you would be happy about that.
Sir Brian Leveson: I made my recommendations and I stand by my recommendations. If those recommendations are implemented through the mechanism of a Royal Charter then so be it. If people believe that the Royal Charter that was agreed by Parliament implements my recommendations, then I am professionally gratified that my recommendations have been implemented because they are my recommendations. I have become used to being an adjective rather than-
Q778 Angie Bray: Indeed. Perhaps for the purposes of accuracy rather than any comment, I am not asking you to comment specifically on the Royal Charter proposals, but just in the interests of accuracy there are, of course, some quite important differences between your own recommendations and some of the recommendations found in the proposed Royal Charter. For accuracy sake, for instance, on the issue of arbitration where your report does suggest that where claims might be seen to be frivolous or vexatious then, as your own recommendations say, consideration must-and I am using your words-be given to the plaintiff being asked to meet those costs. In contrast, the draft Royal Charter only makes reference to newspapers being asked to meet all costs. Would you agree that that would be a point of difference that would suggest that the "Leveson Charter" is not exactly an accurate term?
Sir Brian Leveson: There has been a lot of debate-and it would be naive of me to say that I have not followed what has been going on-about arbitration and about the cost of arbitration. Obviously frivolous, abusive or vexatious claims should be dealt with very quickly and effectively without people having to spend time on them. I do not believe the arbitration mechanism that I proposed would generate the cost or expense, which some expressed fear about to me. Prior to April of this year, it was possible to bring an action for libel with the benefit of a conditional fee agreement and after-the-event insurance. That meant that the cost to the newspaper if it lost was phenomenally high, because it would have to pay the mark up and the premium for the after-the-event insurance. I do not believe that generated an enormous number of libel actions against regional or local newspapers who have expressed this concern. So that would have been free to the point of use. Since then, of course, the test for libel has increased, so the problems would be less.
Q779 Angie Bray: I know my colleagues will want to talk in more depth about arbitration, but I want you to comment on the difference in approach from your proposals to those in the Royal Charter, where there seems to be a suggestion that you understand that there are vexatious claims that might not necessarily generate a cost against the newspaper, if they are seen to be vexatious. Whereas the Royal Charter seems to only suggest that newspapers should bear the costs regardless.
Sir Brian Leveson: I stand by the recommendations that I made in my report. That is what I said.
Q780 Angie Bray: The other areas of difference that I want to quickly run past you. In the section on page 1769 on encouraging membership, in respect of the proposed arbitral arm, you say specifically that neither publishers nor complainants can be forced to use the system. Again, that is not the view expressed in the Royal Charter, is it?
Sir Brian Leveson: I have not subjected the Royal Charter to the sort of analysis that you have. My recommendation was that you could not force a complainant to use arbitration and you could not force-because I wanted it to be voluntary-the publisher to go into the regulator and thus use arbitration. I wanted to encourage that by a costs regime in court. In part that was to encourage the press to join up, because of the potential protection that it could give them against somebody who was determined to go to court and expend large sums, in any event.
Q781 Angie Bray: I would suggest that there is a difference, and so this "Leveson Charter" becomes a very misleading term. Again, on the make-up of the co-committee, I think you make clear that you were happy to accept some of the proposals put to you by Lord Black whereby a majority of the membership would be drawn from the industry, whereas the Royal Charter proposes a membership of approximately three editors, three journalists and three independents. Of course, since we know that a very wide variety of people quite happily describe themselves as journalists, that does suggest that is quite a move away from your own position where you were happy to suggest that the majority on the committee should be from the industry itself.
Sir Brian Leveson: One has to be careful about this. You will remember that I recommended that the responsibility for the code should rest with the regulator, not with the committee.
Q782 Angie Bray: You did say you were happy with the proposal made by Lord Black that the majority could be drawn from the industry.
Sir Brian Leveson: I have not changed my view from the recommendations that I made. In the course of negotiating the charter, I do not know precisely how or why changes were made. I am not commenting on them.
Q783 Angie Bray: I just want you to comment on the accuracy of the description of this Leveson Charter, which does not exist, as you have agreed. Yet there seems to be an attempt to suggest that everything in the Royal Charter we have put forward is from Sir Brian or Lord Justice Leveson.
Sir Brian Leveson: I am sorry; I can only send people back to what I recommended.
Angie Bray: I think I understand what you are saying. Thank you very much.
Q784 Paul Farrelly: In terms of what you recommended, the Chair was expressing his frustration because we have two charters under an IPSO in the making, the Independent Press Standards Organisation, both of which are claiming to be Leveson compliant.
Sir Brian Leveson: There is the adjective again.
Q785 Paul Farrelly: There it is, "Leveson compliant". It is part of the lexicon now. As I understand, Sir Brian, you are saying that your recommendations do stand for themselves and are quite clear. Therefore, we, hopefully as intelligent people, should be able to adjudicate with reference to your report for ourselves between the rival claims.
Sir Brian Leveson: That is absolutely right. With great respect to this Committee, that is what Parliament is there to do with the press and with the public. All I can say is I promise you I have done my very best.
Q786 Paul Farrelly: Could I take a couple of examples where we might use our own intelligence in this way? Let us take the Complaints Committee. This is 4.32 of chapter 7 of your concluding recommendations, page 1765. There you say, "I recommend that serving editors should not be members of any Committee advising the Board on complaints and any such Committee should have a composition broadly reflecting that of the main Board, with a majority of people who are independent of the press." Then I looked to the Articles of Association of IPSO in the making and see that the Complaints Committee has a chair who is independent, five industry members, six independents, no serving editors. Therefore, as a vaguely intelligent person, I can look at that, compare it with your report and think, "Well, that could be held to be in line with the Leveson recommendation."
If I take a second example, which is on page 1759, subparagraph 4.5-and I will only take two examples-where you say, "I recommend that an independent self-regulatory body should be governed by an independent Board. In order to ensure the independence of the body it is essential to ensure that the Chair and members of the Board are appointed in a generally open, transparent and independent way, without any influence from industry or Government." Then I look at the Articles of Association of IPSO and find that the appointments panel it has foreseen which is appointed by the board itself, which contains industry members. Therefore, as a reasonably intelligent person, I can reasonably form a view that that set up does not follow your recommendation.
Sir Brian Leveson: I understand the point, yes.
Q787 Paul Farrelly: Therefore, would you agree, I can judge for myself that IPSO does not give effect to the recommendations of the Leveson report?
Sir Brian Leveson: You can read the words just as I can.
Q788 Mr Leech: Sir Brian, you said at the beginning that you recognised that there were some benefits of the inquiry having a judge leading it. You have also recognised the frustration of politicians and others that you are not now in a position to comment on what has gone after the inquiry. With hindsight, do you think that the inquiry being judge-led was the right thing to do, and would you encourage that future inquiries of a similar sort of nature be judge-led, or whether they should be led by someone else who would be in a position to make comments on the aftermath of an inquiry?
Sir Brian Leveson: I commented yesterday to the effect that I thought that asking a judge to undertake this inquiry was at the very edge of what it was appropriate for judges to be involved in. I was asked to conduct the inquiry by the Prime Minister on the recommendation of the Lord Chief Justice, and that is what I did. I think there is a very difficult trade-off. The value of having a judge-not necessarily me-do this inquiry was that the very difficult timetable that the Prime Minister had set could be kept, which I then rather generously interpreted. I will explain why. I am used to conducting proceedings. Therefore, I am used to controlling the pace and the order of events. The Prime Minister asked me to report within a year of my appointment. There was not a single piece of paper when I started, so I realised that it would take some time to get the evidence and, therefore, time before we started the hearings and it would take some time at the end of the hearings to write the report. Had I had to report by the end of July 2012, I would have had to finish the evidence in March or April and I could not start until November. I could not see a way of dealing with the mass of material that was reflected within the terms of reference in that period. That is why I interpreted the year. I made it clear that I would finish the hearings within a year of being appointed, and I would produce the report within a year of starting the actual hearings. I missed that by two weeks, but, as I said yesterday, it was the hardest I have ever worked to get this done. I am not sure that somebody who was not used to that sort of work pattern, to conducting hearings, to dealing with evidence, to dealing with submissions, to dealing with the legal problems, could have done it.
When I say "legal problems", underlying lots of bits of this report there is a very, very great deal of law. If you have been sufficiently interested-and I am not suggesting you should have been-you will see that there have been a large number of rulings of law, each one of which was capable of challenge in the divisional court. I was challenged as to core participants, and I was particularly challenged on my approach to anonymous evidence by the press itself. They were absolutely entitled to do that. I have no complaint about that.
There were a number of other rulings I gave that could easily have led to judicial challenge. I am not sure how anybody who did not have that experience could have controlled that process. Therefore, should a judge do it? That is for somebody else to decide. I am concerned that the impact of this inquiry might very well cause a reaction to subsequent requests for judges to do inquiries.
Q789 Mr Leech: In your opinion, though, in a nutshell, did the benefits of you being a judge outweigh the detriment and the frustration following the report?
Sir Brian Leveson: I am going to have to answer that question, yes, because I do not think that it could have been done not necessarily by me but by somebody who did not have my experience. In relation to the frustration, I would say it really is all there. I pick up Mr Farrelly’s point, I believe you can read my report and see what fits and what does not fit. Whether you think it should or should not is a different point.
Q790 Mr Leech: Going back to your exchange with Mr Farrelly, would you accept that perhaps the press or the people outside of this room today would be probably keener to hear from you whether you think something is compliant with your recommendations, rather than hearing that from the newspapers or from the politicians?
Sir Brian Leveson: They are going to hear it from both anyway. Who would be keener on hearing my view? Not the person with whose view I disagreed. They would be the ones that would say, "Where is your evidence? Where is your argument? Where are the submissions? What chance did you give me to put the contrary point?"
Q791 Mr Leech: Would you accept, though, that the general public would be far more likely to accept your opinion, as an independent opinion, rather than the politicians who have come to a view or the press who have come to a view?
Sir Brian Leveson: I would like to think that the public are sufficiently sophisticated to have understood precisely what the issues are.
Q792 Mr Leech: I would agree with that, but would you also accept that the general public would probably like to know what your personal opinion is? I am not suggesting that you have to give it, but would you accept that they would like to know what you thought?
Sir Brian Leveson: I think they know what I think and, with respect, I think that all of you know what I think because it is in the report. I am sorry; I am not trying to be flippant. I understand the point. I understand the point, I really do.
Q793 Conor Burns: Sir Brian, unlike my colleague to my left-literally and metaphorically-I am not one of those people who came into politics believing that we should shuffle everything off to independent people. I think politicians should make judgments, stand by them and be held to account for them. So when you say to us, as you did to the Chairman earlier, that the situation we find ourselves in is our problem, you are absolutely right, it is. But, with respect, it is a problem created by your report at the invitation of the Prime Minister. In a sense I regret that your report ever happened. I regret that the criminal law did not deal with the wrongdoing of the press and the press did not take the wake-up call and get together and sort it out themselves.
I totally understand your answer to John earlier, but perhaps I could put a couple of things to you and ask you if you still agree with them. For example, on page 1774 of your report you said, "However, one of the fundamental requirements for the regulatory body is independence from the Government. Any parliamentary process would be likely to be perceived by the industry, and possibly by the public, as Government interference in the independence of the press. Certainly it is not obvious to me that the Government, or Parliament, have any particular qualification for this role." Would you still agree with that?
Sir Brian Leveson: I stand by what I said. You have to bear in mind that I went on to recommend-and this recommendation did not last very long-that the recogniser should be Ofcom and have a very limited role. That was my recommendation. I do not consider that conflicted with the words of my report that you have just read back to me.
Conor Burns: Absolutely. Then in the strictest sense-Mr Farrelly mentioned this phrase that has entered the language-"Leveson compliant". By definition, a Royal Charter does not comply with your recommendations, so where we are today is self-evidently not in the strictest sense Leveson compliant? You said Ofcom. They are saying Royal Charter. The two are fundamentally different things.
Sir Brian Leveson: I understand the point. My concern was there needed to be an independent recogniser. I say options I considered are Parliament, the courts and Ofcom. I then dealt with Parliament. Of course there I was thinking of something like this Committee. I was actually talking about Parliament, but by talking about Ofcom I was talking about a statutory amendment. It would inevitably have meant a statutory amendment to give that responsibility to Ofcom. I think you have to read all that together.
I would like to pick up something you said a moment ago because I would not want it to pass unremarked. I spend some time, I think it is J2-I am sorry this has become a problem for me-dealing with the problems of expecting the criminal law to deal with issues such as this. I would not want you or the Committee to underestimate the problem of saying, "This is just a failure of the criminal law." I commend that chapter of my report because it does raise quite significant issues, which I am sure your Committee and your colleagues on the Home Affairs Select Committee ought to consider. I just pick it up from the-
Conor Burns: I have read that section of your report in detail.
Sir Brian Leveson: I am sure you have.
Q794 Conor Burns: However the point that has been made repeatedly, in the numerous debates that we have had on this, is that many of the worst abuses of the press are already crimes. Nothing in the new regulatory system will alter that they were illegal anyway.
Sir Brian Leveson: But the problem is how a complaint will be generated, how the criminal law can then be enforced and its significance in the great scheme of things. You will remember how I explained the accident both of what was found in the possession of Mr Whittamore and what was found in the possession of Mr Mulcaire. It was only an accident. It need not have been, and if it had not been we would not have found out anything. I am not trying to divert you; it is just that-
Q795 Conor Burns: No, I completely accept the point you are making. However, many of us have been very concerned throughout this process that people have used appalling examples of abuse of freedom by the press to restrict press freedom. Something that is fundamental to our democracy in the view of some of us.
Sir Brian Leveson: In my view, too. I could not have said more frequently the significance and importance of freedom of the press. Absolutely. I repeat what I say in my report. I do not believe that the independent self-regulatory regime that I proposed in any sense impacts on the freedom of the press to publish what it wants.
Q796 Conor Burns: Absolutely. You lead me directly into the next question I want to put to you. You assert that principle of independent self-regulation-I think it runs into double figures in your report-and you say, "The new regulatory structure should be built by the press itself." Under the heading of voluntary independence, self-regulation you wrote, "What is required is independent self-regulation. By far the best solution to press standards would be a body, established and organised by the industry"-your emphasis-"which would provide genuinely independent and effective regulation of its members." Yet now we have a Royal Charter that was cooked up in the Leader of the Opposition’s office with self-appointed representatives of Hacked Off, failed MPs, one in the room. That is not what you envisaged at all, is it?
Sir Brian Leveson: There are lots of bits around that question that I am not going to comment on, although I did watch Mr Letwin give evidence to your Committee and heard the description that he gave. On the charter or whatever deals with recognition, the only purpose of recognition is to provide public confidence that the independent self-regulator is independent and effective. In making this recommendation, what I was trying to deal with was the public concern-which I considered legitimate in my report-that previous efforts to set up a regulator, which were asserted to be a regulator, were demonstrably not regulation even though that is how it was described, to such extent that before me more than one witness said, "There never was a regulator." Yet I do not believe that the PCC set up after Sir David Calcutt was not intended to be a regulator. What I was trying to do was to find a way of reassuring the public that this time it would work and this time it would do what it said on the tin. That is the reason for my recommendation, but I was very concerned that it has to work. I said many times, "It has to work for the press, but it absolutely has to work for the public as well."
Q797 Conor Burns: You say repeatedly in your report that the best way of doing it is for the press themselves to take the lead on it, established and organised by the industry. We now face a position where much of the industry is saying it is not happy at all with what is proposed. Fraser Nelson, for example, of The Spectator, has very bravely said whatever comes they are not signing up. That clearly is not Leveson compliant.
Sir Brian Leveson: I understand the point.
Q798 Conor Burns: A final question if may, Chairman? We have until the end of the month to resolve this before it goes to the Privy Council. Big questions like whether it is right to put to the Queen something that will still be potentially a very controversial matter. Were you to be asked by the Prime Minister to convene a couple of days to take evidence on the Royal Charter for both sides and judge whether it is Leveson compliant, would you do that?
Sir Brian Leveson: After argument in court it is not uncommon to say, "The court will reserve judgment and we will deliver our judgment later." You will forgive me if I say exactly the same to you. It would effectively be another inquiry in fact because I have done part 1 and, therefore, the views of the present Chief Justice would have to be sought.
Q799 Conor Burns: With the experience that the Chairman acknowledged you now have, it would give you the opportunity to look at where we are and make a balanced judgment as to whether what is currently on the table is in harmony with the thrust of your recommendations.
Sir Brian Leveson: Mr Burns, I am flattered. I really am truly flattered that you think that I would have such an impact because the views expressed in my report, I believe, are clear and yet white smoke has not emerged. I am not at all sure that, if I said anything else, those who disagreed with me would change their minds at all. I did say that it was important for the press to do this and I feel that very strongly now. I am very concerned about the position, but it has to work for the public as well.
Q800 Conor Burns: I accept that, but you came tantalisingly close there to expressing an opinion on the circumstances we currently find ourselves in, where large-not all-sections of the press are not willing to agree with what is proposed. You think it would be a bad move to move ahead without the press signed up?
Sir Brian Leveson: With great respect, I have not said that at all.
Conor Burns: You came very close.
Sir Brian Leveson: If that is how my words are interpreted then I will certainly change them. I am not expressing an opinion. I think I have expressed my opinion very clearly. There it is. People have to make of it what they will. I am not expressing a view on what should happen now. I would hope that the press and those who are concerned about press abuses could come together to resolve their issues, through the medium of politicians. That is what you do. It does have to deal with the legitimate concerns of the public. To my mind that is absolutely fundamental, in the same way that the independence of the press is fundamental. These are not conflicting or standards to be judged at different levels.
Q801 Mr Sutcliffe: Sir Brian, I think it is important that you are here today and have said exactly what you have said, because you are saying the answers are in your report, in terms of the recommendations that you made, based on the facts and the evidence that was before you. The group of people that you have just been talking about-the public and in my view the victims-are owed a responsible way forward from the politicians and from the press. There have been 17 occasions over the last 70 years when there has tried to be a resolve to this issue and it has not happened yet. You are clearly saying to us today that the result or the outcome is within your report, and it is up to us as politicians and the press to resolve that. When the Prime Minister launched the inquiry, he talked about the victims. We all know of some of the horrendous cases that there have been of past abuse to victims. You are quite clearly saying to us the response and the answer is in your report?
Sir Brian Leveson: The response and the answer is in my report, which I hope is not bonkers.
Q802 Mr Sutcliffe: One of the frustrations is that we are taking an inordinate amount of time to get to a resolution of this, and people are putting barriers in the way. What you are quite clearly saying to us today is that the solutions are in the recommendations?
Sir Brian Leveson: Those were my recommendations. That is why I expressed them in the way in which I expressed them.
Q803 Tracey Crouch: Could I just ask very quickly, had somebody proposed the idea of a Royal Charter to you during the course of your inquiry what would you have thought?
Sir Brian Leveson: I would have wanted to know what it involved. I would have wanted to know what its ramifications were, and then I would have considered it.
Q804 Tracey Crouch: As has already been mentioned, the press has petitioned for its own Royal Charter implementing almost all of your recommendations. It has been rejected by the Executive in favour of a completely different charter that has, in fact, been rejected by the press and will probably be challenged in the courts. Do you think this makes a complete mockery of your report?
Sir Brian Leveson: My report stands on its own. It was produced on 29 November last year. How you, our elected representatives, deal with the report is a matter for you. It does not make a mockery of my report.
Q805 Tracey Crouch: I am very interested that you said that because, as elected politicians, we will not get a vote on the Royal Charter. That is why we are very interested to know what your views are on the Royal Charter, as somebody who has been given that mandate to look into the future of press regulation.
Sir Brian Leveson: I thought there was a vote. Was there not?
Q806 Tracey Crouch: That was on the exemplary damages specifically, but we have not had a specific vote on what the outcome will be on Friday, of the negotiations of the content of the Royal Charter.
Sir Brian Leveson: I am sorry; I thought there was a vote on the Royal Charter in March. Am I wrong, just as a matter of interest?
Tracey Crouch: It was on very specific aspects of the exemplary damages.
Mr Bradshaw: It was on provision of the exemplary damages and 13 Members of Parliament voted against it.
Tracey Crouch: Three of which sit here today.
Mr Bradshaw: All the rest voted in favour. Some people shouted "No" on the Royal Charter, but there was no Division, so it was passed unanimously.
Sir Brian Leveson: I am sorry; I was wondering whether I was right.
Q807 Tracey Crouch: You can understand our interest in your views on the Royal Charter, as somebody who has been given a mandate by the Prime Minister to look at the future of press regulation, of which the recommendations that you made has led to the Executive coming up with the suggestion of a Royal Charter that we, as elected politicians, will not get a future vote on.
Sir Brian Leveson: My mandate ran out on 29 November 2012. The statute required me to say I had done it. I am not trying to be legalistic; well, I am actually. The statute required me to say that I had done the job, and the moment I said I had done the job I had done the job.
Q808 Tracey Crouch: The statute might say that, but as a person, as a human being, you take responsibility for the implementation of the recommendations, of which there is much criticism. In fact, it is a point that you make in your own report that there is a significant decline in the print media. The recommendations that you set out are really for an industry that will not exist in the future. Do you think that your recommendations, or whatever the interpretation of them will be, will be fit for purpose in a matter of a few years?
Sir Brian Leveson: I am a human being and, of course, I now have a deep interest in this issue. If I had not thought that my recommendations would be fit for purpose I would not have made them.
Q809 Tracey Crouch: So you do think that your recommendations are fit for purpose in terms of, for example, the online media-bloggers, for example?
Sir Brian Leveson: I deal to some extent with them. I have been criticised for not dealing with lots of things that were not within my terms of reference. I stand by what I said.
Q810 Tracey Crouch: I am going to ask some very specific questions on parts of the report. Before I do, can I ask you about the actual publication of your report? You did not take questions from members of the press on the day of publication of the report. Had you done so, do you think that you would have allayed some of the fears and perhaps some of the hostility within the industry itself?
Sir Brian Leveson: With great respect, I could not do more than I did. I provided a report that is 2,000 pages long. I provided an executive summary that is 51 pages long, and I provided a summary of that at the launch that was eight pages long. Nobody could be in doubt about what I thought.
Q811 Tracey Crouch: I think that they might have wished to have asked you a few questions about the future of their industry. It is their jobs. Indeed, my constituents, who are consumers of printed materials, care very deeply about these matters. To ask you a few questions perhaps would not have been above and beyond the call of duty.
Sir Brian Leveson: I spend my life normally passing judgment in ways that affect people’s lives enormously in court. I give a judgment. It is in writing. Everybody can see it and anybody can challenge it in a higher court. It would be inconceivable for me as a judge then to say, "Now, who has any questions about this?" With respect, that is exactly how I feel about this report.
Q812 Tracey Crouch: With respect, Sir Brian, that is within a judicial environment. We are talking about a judge-led inquiry on a matter of great interest to many people. This is not about a judicial decision that you have made in the case of X versus Y. This is about the future of our press.
Sir Brian Leveson: This was a judicial inquiry, which I conducted, I hope, judicially. I came up with what I consider was the equivalent of a judgment. They are not decisions because those are for you. They are recommendations. I dealt as much as I could with the concerns that were expressed and it is contained within what I said.
Q813 Tracey Crouch: I would like to turn to some very specific issues, first relating to damages. You neither invited nor received submissions on exemplary damages during your inquiry, and yet you saw fit to make recommendations on what has been reported as an out-of-date Law Commission report prepared before the 1998 Human Rights Act was passed. On what basis did you make such recommendations?
Sir Brian Leveson: My recommendations are based upon my study of the law and my analysis of the position, and there it is. I think you are not right to say that exemplary damages were not discussed at all in the inquiry, but I would have to provide chapter and verse. I think there was some discussion at different stages, as I looked for carrots and sticks.
Q814 Tracey Crouch: Are you content with the way your recommendations have been interpreted on damages as now passed, in fact, by Parliament?
Sir Brian Leveson: I believe the legislation is slightly different in its language to the recommendation that I made. That is Parliament working.
Q815 Tracey Crouch: So you are happy?
Sir Brian Leveson: It is not "content" or "not content". I made my recommendations. Parliament decided what it wanted to do. That is the system working.
Q816 Tracey Crouch: You make it very clear in your report how important you believe the local press and regional press are in society, yet there is a great deal of concern that the recommendations-and now the interpretation in law of your points on exemplary damages-may have quite a devastating impact on many of our local and regional press. Do you have any concerns about that? Are you worried about that? Do you see that something that you may have recommended in good faith is going to have quite a damaging impact in the future on a core part of our press?
Sir Brian Leveson: I do not believe that to be so and that is what I said.
Q817 Tracey Crouch: Why do you think they are concerned?
Sir Brian Leveson: You would have to ask them.
Q818 Tracey Crouch: I think they are concerned because of the amount of money it might cost them.
Sir Brian Leveson: I do not know how many libel actions the local and regional press have ever had to fight or how many privacy actions the local and regional press have had to fight.
Angie Bray: Very few.
Sir Brian Leveson: Very few, I hear somebody say.
Angie Bray: As things are. We are not working under the new rules.
Q819 Tracey Crouch: Yes, under the Royal Charter with the issue of costs, they could potentially start having to face more costs in vexatious claims, which is something that you dealt with in your recommendations but have been interpreted differently in the Royal Charter.
Sir Brian Leveson: Of course, since then, the threshold for libel has changed as well. It has been increased by the Defamation Act of last year. I go back to a point that I made earlier. Prior to April of this year, libel actions could be brought with the benefit of CFAs and after-the-event insurance, which was horrifically expensive for a losing newspaper. I do not recollect ever seeing one of those cases, certainly not in a court that I have sat.
Q820 Tracey Crouch: I followed the Lord Justice Jackson review very closely in a previous life. From memory, Lord Justice Jackson did come in front of Parliament and respond to some of the questions that were raised in terms of that.
Sir Brian Leveson: Did not or did?
Tracey Crouch: He did.
Sir Brian Leveson: He did, yes.
Q821 Tracey Crouch: And quite rightly so. Just in terms of the legal advice around damages, do you agree with the advice published by three very eminent QCs that what you recommended on damages and what was subsequently passed could, in fact, be challengeable under Article 10, the importance of which you allude to yourself throughout your report?
Sir Brian Leveson: If I had thought that a recommendation of mine could be impugned in law I would not have made it.
Q822 Tracey Crouch: So they are wrong?
Sir Brian Leveson: If I had thought that a recommendation that I had made could be impugned as a matter of law, I would not have made it.
Q823 Tracey Crouch: Okay, so they are wrong. Let me turn to the issue of public interest. You talk about public interest throughout the report, and rightly so. Do you think it is right or fair that there is a public interest test in deciding whether to prosecute but other than under the Data Protection Act there is no public interest defence for those facing charges?
Sir Brian Leveson: My report I believe deals with the suggestion of a public interest defence under the Data Protection Act. It also deals with the general submission, I believe-I think I am going back to J2-of whether there should be a general public interest defence for the press. I stand by what I said in both those parts of the report.
Q824 Tracey Crouch: I am pleased that you said that because I was going to ask you what you think Parliament should be doing to improve the public interest defence for journalists. I have indeed read the relevant sections, but I think for the benefit of the record it would be useful if you were to expand on that.
Sir Brian Leveson: I do not want to expand upon it. It is there. The trouble with trying to summarise is that I will inevitably do so in different language and then somebody will start to analyse what I have said and say, "It is different." I can only refer you back to what I said. That is what I stand by.
Q825 Tracey Crouch: Do you think it would be helpful if Parliament were to conduct a short inquiry into public interest defence and put forward some of your recommendations?
Sir Brian Leveson: That is entirely a matter for Parliament.
Q826 Tracey Crouch: Indeed, if it could define public interest?
Sir Brian Leveson: I think there has been some previous consideration about whether Parliament should seek to define what is in the public interest, but I would have to go chapter and verse. What you do is absolutely for you.
Q827 Tracey Crouch: I was very interested in reading your report, in particular the parts on page 1585, paragraph 2.4. It is within the chapter about effectiveness of the regime. You say, "The public interest in the rule of law is also important. The law applies to journalists and the press as it applies to everybody else. This is not to say that journalists cannot sometimes break the law in the pursuit of public interest journalism, but that does not override the general public interest in the rule of law: on the contrary, it recognises that a clear countervailing public interest must be identified before the rule of law may yield."
You then subsequently highlight a few examples of differing definitions of public interest. Those defined under the PCC code, the Ofcom broadcasting code and, indeed, the BBC, before stating, on page 1587, paragraph 2.8, "it is not for this inquiry to draft a comprehensive working definition: this would be both an overly ambitious and inappropriate exercise. However, given that this is the public interest, and that it must explicitly relate to interests outside those of the media enterprise concerned, it must be reasonable to conclude that whatever interpretation of the public interest is to be used in the new regulatory regime, it should be recognised, understood and accepted by both the media and the public." Therefore, do you think that it is possible to design an effective regulatory regime before the public interest has been defined?
Sir Brian Leveson: We have managed to deal with the question of public interest over many, many years without it being defined. This chapter deals with what I considered were important criteria for a regulatory solution. That is the discussion in the chapter. It is as I express it here. I believe in one of the attempts at legislation there was a discussion of whether there should be a definition of public interest and it was found to be unhelpful. There is a great deal of law on what is in the public interest, and therefore, although it is not printed on a piece of paper, those who are concerned in this area of the law will be very familiar with the way in which it has been put in different decisions of the courts.
Q828 Tracey Crouch: You are right; there is a great deal of law on public interest, but the law changes on a regular basis. As you yourself also refer to in your report, the MPs’ expenses story, which is of great public interest-one that you accept was a test of good public interest journalism-would no longer be acceptable under the current legislation of the Bribery Act because it would not meet a public interest defence. I refer back to my original question. Do you think perhaps there needs to be a single statutory public interest defence that crosses across all pieces of legislation in relation to published materials?
Sir Brian Leveson: I do deal with this in my section on the criminal law. The difficulty with it is one of proof. There are lots of hurdles through which the prosecution has to jump before it can get through to the verdict at the end of the case. Not only is there the code test for the Crown Prosecution Service, there is also potential arguments of abuse of process. There is the potential verdict of the jury and then, assuming all that has failed, there is what might be described as the Ponting approach, and then there is the judge. In my judgment, it is absolutely inconceivable that evidenced public interest justifications would not be given the full weight in appropriate circumstances. The problem is that, in seeking to protect the very important concepts that lie behind Article 10 and the freedom of the press, one has to be careful of the potential risks. I discuss it in my report in the context of sources and the disclosure of sources, and the risk that what may be a complete fishing exercise could be justified by some unprovable assertion of information from a source. It is all in I think J2, as I am sure you-
Tracey Crouch: J2 is a very large chapter, if I may say so.
Sir Brian Leveson: It is on the criminal law. Now, criminal law I am supposed to know something about.
Q829 Tracey Crouch: Yes. While we are still on the issue of public interest, can I just expand that to ask you a question about public interest immunity? The Evening Standard reported that a former Metropolitan Police Commissioner handed a very serious report to your inquiry detailing an alleged corrupt relationship between a senior former police officer and a leading News of the World executive, which the Met then claimed a public interest immunity over. This then prevented you from referring to it in public or considering it for the conclusions of your report.
Sir Brian Leveson: I am sorry, who is the witness?
Tracey Crouch: I am reporting from an Evening Standard report. I am about to ask you. You were prevented from referring to the report within your conclusions on the report, in particular in relation to the inappropriate relationship between the press and the police. Is the Evening Standard report true?
Sir Brian Leveson: I am not immediately sure.
Q830 Tracey Crouch: You are saying that there was no report?
Sir Brian Leveson: No. With great respect, I am not saying anything. I am at the moment trying to find out-
Q831 Tracey Crouch: At any point during the course of your inquiry, did the Metropolitan Police issue a public interest immunity certificate on any evidence that had been given to your inquiry?
Sir Brian Leveson: A statement was provided to the inquiry by a man by the name of Mr Peter Tickner-this is in the public domain-in which he made a number of allegations. That statement was circulated to all the core participants and Mr Tickner was scheduled to give evidence. As I remember, objection was taken to one part of his evidence by the Metropolitan Police and I issued a ruling. All the core participants, including all the representatives of the press, had the opportunity to argue or challenge the ruling and nobody did. Aspects of Mr Tickner’s evidence did not touch my inquiry. I think there was one that did, but I was persuaded-for the reasons that I gave in writing, which is available on the website-that I was not going to call the evidence. I am not sure whether that is what this particular article is referring to. I have not seen the article.
Q832 Tracey Crouch: I am not sure that is the particular case that we are referring to either, but for fear of breaching the rules I will not press that any further. My understanding is that there was an application for public interest immunity for a particular document. That was given to you by a former senior police officer alleging corruption between another senior police officer and The News of the World, of which a certificate was issued, which was reported in the Evening Standard, and that, as a consequence of that certificate, you were unable to consider it as part of your recommendations on the relationship between the police and the press. Of course, that is a matter that is of great interest.
Sir Brian Leveson: I am sorry, this question has-
Tracey Crouch: Flummoxed?
Sir Brian Leveson: No, that is not-
Chair: Sir Brian, I begin to get nervous when we talk about matters that could be the subject of criminal action. I rely on you as rather better informed than me to warn us if we are straying into areas we should not.
Q833 Tracey Crouch: I will curb my questions on that matter. If I may finish with two more questions, one relating to the relationship between the Met and the police. Given my previous question and given ongoing concerns, not to mention the Daniel Morgan case that you reference once in your report, do you think the Met Police were, in fact, the right police force to conduct the current operations into journalist activities?
Sir Brian Leveson: I am not going to comment on that. I do say, which reflects a little bit on your last question, that there were some relationships between the press and very senior officers of the Metropolitan Police of which I was critical, of which you will be aware. I did not go into too much detail, for reasons that the Chairman has just identified. The circumstances surrounding the revisiting of Operation Caryatid in 2009 and 2010 are analysed-again I use the adjective tedious-at great length in my report, and the circumstances of the reopening of the investigation in January 2011 are also identified. We are still seeing the consequences flow through the system.
Q834 Tracey Crouch: My final question is do you think that there are any circumstances where payment for a story is justified?
Sir Brian Leveson: To such extent as I deal with payments, I have dealt with it. I am not going to comment as a matter of generality.
Q835 Tracey Crouch: Many national newspapers-
Chair: We are going to have to move on.
Tracey Crouch: Just one second. Many national newspapers advertise quite openly that they pay for stories so, not unreasonably, people ring up with stories to the news desk, of which they are offered information for a price. The Telegraph with the expenses story was a classic example, one that is praised throughout the report. This is something that was being actively encouraged. Do you think it is a little unfair that perhaps individual employees are now being tried for corporate failings?
Sir Brian Leveson: I am not commenting on any of the current investigations or prosecutions. Asking the question is a little bit unfair, with great respect.
Chair: We will move on.
Q836 Mr Bradshaw: Sir Brian, in your earlier comments in response to the Chairman, you said how important it was when your inquiry was set up that it had all-party support. You quoted Sir John Major at the end of your executive summary in terms of how your report was taken forward. I quote, "If one party breaks off and decides it is going to seek future favour with powerful proprietors and press barons by opposing it, then it would be very difficult." You went on to quote John Major as saying, "There is an especial responsibility on the leaders of the three major parties." Is that still your view?
Sir Brian Leveson: The choice of the quotation from Sir John Major at the conclusion of my report was not accidental.
Q837 Mr Bradshaw: Given that almost a year has elapsed since you published, do you think politicians have lived up to the responsibilities that you called them to exercise?
Sir Brian Leveson: It is absolutely not for me-either here as a judge or at all-to criticise Parliament or politicians. There are plenty of people who might do that and it is not going to be me. I am just trying to find Sir John’s words, which I have somewhere.
Mr Bradshaw: It is your conclusion of the executive summary. It is page 31 of the executive summary.
Sir Brian Leveson: I have it now. I just go on, "There is an especial responsibility on the leaders of the three major parties. 20-odd years ago-23 years ago, I think-a senior minister said the press were drinking in the last-chance saloon. I think on this occasion it’s the politicians who are in the last-chance saloon". I comment that Sir John put it graphically.
Q838 Mr Bradshaw: You do not seem to want to express any frustration at the delays that have taken place, but earlier you did admit that we were still waiting for the white smoke, I think you put it. How long do you think it would be reasonable to continue, for the public to wait for the white smoke?
Sir Brian Leveson: I do not think it is for me to say. I deliberately produced the report when I produced it to give the maximum amount of time for everybody to think about it, to reflect upon it, and to decide on a way forward. I do think that it cast a real responsibility on everybody to have regard, both to the significance and importance of a free press, which I have repeated many, many times-and repeat again now-but equally to ensure that that freedom is not the subject of such abuse that it causes the sort of problems that are not incidental. These were not one-offs that part F of the report analyses, again in great length, that these people are also appropriately protected.
Q839 Mr Bradshaw: Was it your expectation that your recommendations would be implemented before the next election?
Sir Brian Leveson: I provided the recommendations in as short a time as I could so that the process could proceed without risk of delay.
Q840 Mr Bradshaw: Would it be reasonable if your recommendations were not implemented and were lost in the inevitable firestorm of party politics before the next election?
Sir Brian Leveson: I would be sorry if my recommendations were lost, but of course they can be implemented as Parliament sees fit.
Mr Bradshaw: I was going to go back to arbitration unless any of my colleagues want to come in on any of that.
Chair: Steve, did you want to?
Q841 Steve Rotheram: Thanks, Chair. Just on that line of questioning, we have obviously heard from Sir Brian Leveson and from Lord Justice Leveson, but does Brian Leveson get a bit fed up about the constant misrepresentation of both the report, its recommendations and of the ongoing process? For example, Mr Rupert Murdoch said on Twitter this week the press is being gagged "to protect toffs". Is that a fair characterisation of the recommendations in your report or another example of the sort of selective memory and misrepresentation from the likes of Mr Murdoch?
Sir Brian Leveson: I certainly am very frustrated at representations of my report that are not accurate-that is, all three of the people to whom you have just referred.
Q842 Mr Bradshaw: Have you yourself been the target of press intrusions since the publication of your report?
Sir Brian Leveson: Not as far as I am aware.
Q843 Mr Bradshaw: Did you see the smear over a number of pages of one of the members of your inquiry, David Bell?
Sir Brian Leveson: Yes, I did.
Q844 Mr Bradshaw: Did you take a view on that?
Sir Brian Leveson: When I launched the report, I said this, "I must now place on record my thanks to all those who participated in the inquiry. These are the assessors who have advised in areas of their expertise and who were selected by the Government with the support of the Leader of the Opposition, in the Prime Minister’s words, ‘for their complete independence from all interested parties.’" Sir David identified his past and his background at the very beginning of the inquiry, and it was placed on the website at the very beginning and remains there to this day. He provided me with an enormous amount of assistance entirely impartially. He, with others, was very conscious that I reflected upon the different dynamic of the tabloid press, although no editor ever suggested there was a difference between tabloid and broadsheet journalists. I have nothing at all but praise for the enormous attention that he paid to the difficult work of the inquiry.
Q845 Mr Bradshaw: Can I take you back to arbitration very briefly? This is one of the areas central to your recommendations where I think there has been most misrepresentation. Can you remind this Committee why you thought the arbitration recommendations were so important and what you hoped they would achieve?
Sir Brian Leveson: I would be grateful if whatever I said was not construed against what I wrote. If there is a difference between what I am now going to say extempore and what I have written, please follow what I have written.
For me, it was an important mechanism that would benefit the press as much as it benefited anybody else. Litigation is outrageously expensive. In one sense, if it is made so expensive that it is only for the very rich, those who are defendants or potential defendants might applaud; but given the changes to conditional fee agreements and after-the-event insurance, there had to be a mechanism for this sort of challenge to be brought. Lord Justice Jackson recommended qualified one-way cost shifting, as I am sure you are aware.
I believed that providing an arbitral mechanism conducted by experts in the field would provide a very swift dispute resolution. Very often, arguments about libel turn on the meaning of words. That can be resolved very quickly, frequently without a hearing, and therefore very cheaply. Contrary to some views that have been expressed, most people do not want to start proceedings in libel or at all and it is very much a last resort. Proving libel, the hurdle is increased by the Defamation Act and I do not believe that this is going to be an expensive exercise as feared. The value was if the press is in the club, then somebody can make a complaint. It is intended to be cost free. In other words, the claimant is not going to be able to build up big costs and it is intended to be inquisitorial, so they will not need expensive lawyers. Somebody will look at it for them and the issue can be resolved cheaply and quickly to the standards of the law. The arbitral mechanism was not intended for anything that was not already a breach of the civil law. I was not proposing, and I did not propose, compensation for complaints about accuracy or fact, complaints against the code. It was purely to deal with breaches of the law.
I also saw great advantage for the press. I think it was Mr Barber of the Financial Times who said that there were some people who the press could not take on, because they had so much money that they could flood a piece of litigation in such a way that it became impossible financially to justify contesting it. Therefore, I was saying that if the publisher was in the club, was regulated, and the complainant did not want to use it-of course, he could not be bound to-the court ought to be able to take into account the fact that there was a cheap arbitral mechanism that he, the complainant, decided not to use and could reflect that in the costs orders. The carrot and stick was if you do not use a cheap, easy, inquisitorial answer, then the court can reflect whether you have been reasonable. That was the purpose behind it. It was intended to assist everybody. Indeed, there was more than one press representative who said that an arbitral mechanism would be very valuable, would be very useful. I hoped that it would be seen as a real advantage. I do not see it as the problem that has been suggested.
Q846 Mr Bradshaw: As a former local newspaper reporter myself, I am well aware of the chilling effect of wealthy and powerful people threatening to sue my newspaper. At that time I would have been very grateful for the sort of arbitration system that you outlined, because it would have made us much braver in what we were willing to report.
Sir Brian Leveson: Mr Bradshaw, that was precisely the purpose of the suggestion. I thought it was a wonderful carrot and stick. Well, I did, that is what it says.
Paul Farrelly: Likewise, as a former national newspaper journalist.
Q847 Mr Bradshaw: Can I ask you why you said, "The continuation of the Code Committee with a majority of serving editors, acting in more than an advisory role, does not allow for independent setting of standards." Can you just explain your reasoning for why you said that?
Sir Brian Leveson: I think it is in the report. As I understand the editors’ Code Committee, it sets the code. It sets the standards at the moment and it is comprised of a majority of editors. They decide the standards.
Q848 Mr Bradshaw: That did not reach your measurement of what constituted independence?
Sir Brian Leveson: That is what I said. Therefore, I was perfectly content that editors remained on the Code Committee. I think it is important that they do; I think I have said that. I said that the ultimate decision as to what the code should be should be for the board. I think that is how I explained it.
Mr Bradshaw: Mr Chairman, I hope we are going to have time to talk about all the other elements of Sir Brian’s report that we have not even touched on yet, such as media plurality, data protection and the relationship between politicians and the press. I do not know if colleagues have any other questions on the matter at hand at the moment.
Chair: I still have several people who want to come in. I do not want to occupy the entire of the rest of Sir Brian’s day, so we will try to move relatively swiftly.
Q849 Mr Bradshaw: Perhaps I could just ask in that case-you said that a lot of your report was uncontentious-is there anything you would like to say about how those bits of it, the issue of data protection, the relationship between politicians and the press, all the other important bits of your report that we have not even got round to discussing yet, are you happy with the way your recommendations are being taken forward?
Sir Brian Leveson: I am not sure that I know.
Mr Bradshaw: Which is worrying in itself.
Sir Brian Leveson: I am hoping that people are reflecting, reviewing and considering. That is all I asked them to do. That is what a recommendation means.
Q850 Mr Bradshaw: For example, you made very important recommendations on data protection saying that the 2008 Act had not been properly implemented. Are you aware that it has been or that there are any moves to do so?
Sir Brian Leveson: I have not been informed but do not get me wrong, Mr Bradshaw, I would not necessarily expect to be informed. The Government has my report.
Q851 Mr Bradshaw: The point I am trying to make is you made a lot of very important recommendations in your report, which nobody is talking about and I worry are not even being looked at and properly implemented.
Sir Brian Leveson: I think they are being looked at. I was informed of that, but where people are I cannot say.
Chair: Mr Davies is waiting patiently. Just before I come to him, Angie Bray, specifically on arbitration.
Q852 Angie Bray: Yes. If I could return to the issue of arbitration? I think you quite accurately describe your attempted approach on this to be a carrot and stick approach. The idea would be that newspapers and publications would feel better off inside than outside. I think some people will say that you have attempted to strike a reasonable balance. You clearly do feel that there may be some situations where there are frivolous or vexatious complainants and you make it clear that, in those circumstances, it may well be that costs would be awarded against them, precisely because they are being frivolous or vexatious.
I return to the point I made to you earlier. I think there are many concerns about what might be a sensible protection to sign up to your system, where your carrot and stick approach is able to operate. I have to say that I do not think Mr Bradshaw necessarily speaks for the local newspaper industry currently, because we have heard nothing but concerns from them about the potential impact of some of the proposals, both in your own report but more specifically in the Royal Charter proposals that, as I said earlier, claim to be Leveson charter proposals. From your answers, I think we can say they are not. The point is that the carrot would be removed-wouldn’t it?-under those proposals where, regardless of whether complainants are vexatious or frivolous, the newspapers will bear the costs. That would surely render that carrot and stick approach worthless, because what would be the point of signing up to the system if it is going to be very expensive for them anyway?
Sir Brian Leveson: I am not commenting on that specifically, but I do say this.
Angie Bray: But it would render your proposals unworkable.
Sir Brian Leveson: I understand what you are saying, but I do say this. I do not anticipate that deciding whether a claim is vexatious or frivolous is terribly difficult. One would look at the letter or the initiating claim, put it in front of whoever is responsible for this mechanism, who would read it. Claims are struck out in court without the other side necessarily taking the point.
Q853 Angie Bray: Therefore, why would you make allowance for the fact that there may be occasions where costs will have to be awarded against vexatious complainants? You yourself raised that possibility.
Sir Brian Leveson: Well, there you are; it is there.
Q854 Angie Bray: I am saying that your proposal, which is balanced, would be undermined by the Royal Charter proposals that take out that essential fairness whereby, if you are being vexatious, you get costs awarded against you. That does not exist in the proposal. Again, there is a very significant difference and it would make your proposals, which have some balance in them, far less workable, would it not?
Sir Brian Leveson: I have not studied the detail of the charter. I defer to your knowledge of it, but I understand the point you are making.
Q855 Angie Bray: You are telling me I am right?
Sir Brian Leveson: No, I understand the point.
Q856 Philip Davies: Perhaps I ought to start by declaring an interest, and referring people to the Register of Members’ Interests, in that I have written some columns for newspapers for which I have been paid, two of which were sold but I think they were not even published. It is all there for people to see.
Sir Brian, you have done your 2,000-page report. It is 15 months on. Do you have any regrets about what you put in your report or about how the inquiry was conducted or any regrets at all about the process?
Sir Brian Leveson: I regret that I thought it would be of assistance to identify the history of newspapers, which was not part of the formal submitted evidence, and that somebody researching the history of The Independent newspaper picked up an error and published an error that I did not identify, which has allowed much sport to be made of me and my report. I regret that.
Q857 Philip Davies: Is that the only one you have?
Sir Brian Leveson: No, there are some typos. It is said that there are some minor factual errors, some of which I intend to publish by way of correction. To put the context, without necessarily being able to say they are wrong or right, I will give you the example. One of the tables of statistics that I published is not recognised by the Press Complaints Commission and they have provided me with different figures. My team has long since disappeared to doing different jobs and I am not in a position to check, but the least I can do-and I feel I ought to do-is publish what they say the statistics are without comment. That is not to accept or reject, but it is merely to provide the context. That is not a flippant answer. I was very conscious to get this out. I think I said at the time that I wanted to go back over it again and hone and rethink and look at every single word, but there was a time constraint. Do I regret that? No, it was an inevitable consequence. Do I regret the way we conducted the inquiry? No, I do not. We planned it from July 2011. It ran broadly as I wished it to run. In retrospect, I might have changed some of the witnesses, called some different people and not called some others, but that would be in any inquiry. I was given the enormous advantage of a very, very hardworking team of civil servants in the inquiry and of counsel.
Q858 Philip Davies: The reason I ask is that everyone who is in a position where they take decisions makes mistakes. I probably make dozens every day. I usually make a mistake when I am persuaded to vote with the Government on something. I am sure all of us round here have regretted judgments that we have made and decisions that we have made. It just seems quite extraordinary that, 15 months on from a 2,000-page report, you do not think you made any mistakes in it, in terms of any of the recommendations that you wish you had not made in hindsight. I find that quite extraordinary.
Sir Brian Leveson: You should not consider it too extraordinary for this reason. It assumes that I have gone back and reread it and thought about it and reflected again and again and again. I have been a judge for 13 years and all the time I have to make decisions. Some of them are very, very difficult decisions. They affect people’s lives. If I reflected again and again on, "Is that the right decision?" I would never sleep at night. All I can do is my best. What I say is for all its flaws-and different people have identified different bits of the report as entirely flawed, and everybody is entitled to their own opinion-I am proud of this piece of work. I am not saying it is free of error at all, but it was the very best I could do and it is far more detailed and thorough than I expected I would be able to do in the timeframe.
Q859 Philip Davies: No, I understand that. You said earlier on that your views are clear; they are in the report. The concern that I have is that we have seen an example of it today; it has happened ever since your report was published that people have picked out different parts of the report to prove their particular view of things. With hindsight, do you think that your report is not quite as clear as it could have been? If it had have been clear, presumably we would not have had all of that misconception about what you have recommended?
Sir Brian Leveson: I am afraid I think what I have recommended is clear.
Q860 Philip Davies: To you perhaps, but it seems not to anybody else.
Sir Brian Leveson: I cannot speak for anybody else. I go back to what I said: I did my best.
Q861 Philip Davies: Do you think your evidence today has been very clear as well?
Sir Brian Leveson: That is for you to decide.
Q862 Philip Davies: The only reason I ask is that at the start you said that you only make recommendations, and this was part of your judicial role and why you would not want to get into any debate because you have not taken any evidence. That you only make recommendations based on the evidence was what you said earlier on. Fortunately, we have Hansard to show that. Then later on in answer to Tracey Crouch, when she was asking you about your recommendations on exemplary damages, for example, you are going to send us, I believe, the extensive-
Sir Brian Leveson: I have not promised to send anything.
Q863 Philip Davies: I thought you had suggested that you were going to. Will you send us the evidence that you base those recommendations on?
Sir Brian Leveson: Mr Davies, it is the law.
Q864 Philip Davies: But you said you base it on evidence, the evidence that you took. As far as I can see, you did not take any evidence on exemplary damages. You said in your answer to Tracey Crouch that that recommendation was not based on any evidence that you took. It was based on your study of the law and your analysis of the position, not on any evidence that was taken.
Sir Brian Leveson: I am afraid you and I are going to disagree. As far as I am concerned, the law of the land does not need independent evidence.
Q865 Philip Davies: In terms of your recommendations about what should happen, did you not think it was worth taking evidence on what people might think if that was one of your recommendations?
Sir Brian Leveson: I took the evidence I took.
Q866 Philip Davies: So your recommendations were not only based on the evidence that you took. You say that you did not think that anything-
Sir Brian Leveson: With respect, my recommendations are based upon the evidence I took, my understanding of the law and the recommendations as to developments in the law that have been discussed over the years.
Q867 Philip Davies: You said that, as far as you were aware, nothing that you have said was contrary to any subsequent law changes. So when Sir Max Mosley took his case to Strasbourg, the court there ruled that fines would run the risk of incompatibility with Article 10 of the Human Rights Convention because they would have a chilling effect on political reporting and investigative journalism. Did you not consider that when you made your recommendations of exemplary damages, or did you give consideration to that when you made your recommendation on exemplary damages?
Sir Brian Leveson: I am aware of what the European Court said in Mosley, and I was aware of what the European Court said in Mosley when I wrote my report.
Q868 Philip Davies: So you took that into account. You do not think that that judgment was incompatible with your recommendation on exemplary damages?
Sir Brian Leveson: I do not believe my recommendations are incompatible with European law.
Q869 Philip Davies: In which case, why not? Why do you not think that that case rendered your recommendation incompatible? You did not take any evidence on it; it was just your interpretation of the law. We have no other way of finding out other than finding out what was going through your mind at the time.
Sir Brian Leveson: You can look at the law yourself and take appropriate advice, and there it is.
Q870 Philip Davies: So are you not going to expand on what consideration you gave to this?
Sir Brian Leveson: I am not sure how I can. I considered the law as I understand it to be. That is what I do every day of the week.
Philip Davies: I thought you based your decisions on evidence that you took.
Chair: I think it is becoming a circular argument. Can we move on from that?
Q871 Philip Davies: In terms of the rest of the conduct of the inquiry, did you give the staff advice about professional standards, in particular in respect of association and relationships with parties to the inquiry?
Sir Brian Leveson: No.
Philip Davies: You did not?
Sir Brian Leveson: No.
Q872 Philip Davies: Is that not the norm when public inquiries take place?
Sir Brian Leveson: Nobody suggested to me that it was.
Q873 Philip Davies: The public hearings ended on 24 July last year. A few days later, the junior counsel to your inquiry, Carine Patry Hoskins, went on holiday with the counsel who represented phone hacking victim, David Sherborne, where they say they discussed the possibility of having a relationship but then decided against it. It became a full-blown relationship in November. When and how did you learn of that relationship?
Sir Brian Leveson: Can I refer you to letters, which I am sure you have seen, that I wrote to Mr Wilson, who raised these issues with me? I have fully identified what I knew, when I knew it and what role Ms Patry Hoskins played.
Q874 Philip Davies: For our benefit, when and how did you learn of it?
Sir Brian Leveson: I refer you to the letters. I will read the letters if you want me to.
Philip Davies: It is a simple question; when and how did you learn of it. It is just a simple question.
Sir Brian Leveson: As I said to Mr Wilson, I first learnt that there was any relationship, I think, in March 2013.
Q875 Philip Davies: As I understand them-you will know better than I-Bar Council rules prohibits barristers from acting, "where by reason of any connection, with the client, the court or otherwise" a barrister’s professional independence, "might be compromised or there might be prejudice or the appearance of prejudice to the administration of justice". She questioned more than 50 witnesses. She played a key role in drawing up the lines of questioning to be used by Robert Jay. Are you happy that she was able to do that without breaching those Bar Council rules?
Sir Brian Leveson: I understand a complaint has been made to the Bar Standards Board about Ms Patry Hoskins, and I hope you will not mind if I afford her the same courtesy of not commenting upon outstanding proceedings as I have afforded to everybody else.
Q876 Philip Davies: You were in charge of the inquiry, so did you not take any action about that?
Sir Brian Leveson: I am sorry. What action should I have taken when?
Q877 Philip Davies: To have prevented the conflict of interest. Do you not believe that there was a conflict of interest, or at least the perception of a conflict of interest?
Sir Brian Leveson: The witnesses Ms Patry Hoskins dealt with were in the first half of the inquiry.
Q878 Philip Davies: After you were aware of the relationship, what was her role then?
Sir Brian Leveson: After I was aware of the relationship. Zero. It was March 2013. The inquiry had long since finished.
Q879 Philip Davies: You did not know anything. You had not heard any rumours about it before then, nothing at all?
Sir Brian Leveson: No.
Philip Davies: Really? You were the only person who did not.
Sir Brian Leveson: Pardon?
Q880 Philip Davies: In a statement on 23 April, you said she had no input into any of the conclusions or recommendations after 3 August. Why 3 August? Why did you choose the date of 3 August?
Sir Brian Leveson: I will explain why I chose 3 August: because that was the day she started a month’s holiday. The fact is, I have also made it clear that she had no input at all into any of the recommendations on regulation of the press. All the recommendations that I made were recommendations that I made. I discussed them at the most senior levels with people in the inquiry, but her role was different.
Q881 Philip Davies: For the last four months of your inquiry, her role was nothing beyond collation of facts and proof-reading, is that right?
Sir Brian Leveson: That is absolutely right. What she was doing was gathering together facts. I think I have said in the letters, yes, part I chapter 3 and part I chapter 5, dealing with the historical relationship between the press and certain politicians. That is what we were doing then, or that is what she was doing then.
Q882 Philip Davies: For 15 months, she was paid £218,606. Isn’t that an awful lot for somebody who for the last four months was just doing collation of facts and proof-reading?
Sir Brian Leveson: I think you will find that for the last four months she did not spend very many hours, or an enormous number of hours, on the inquiry. I think this is all material that I have disclosed in answer to Mr Wilson’s questions. The bulk of her work started in July 2011 when she and others were creating the questions to ask of witnesses, the preparation of their statements; then dealing with the statements, researching the statements, cross-referencing the evidence, cross-referencing the evidence against other evidence to prepare for the questioning of witnesses; doing some of the questioning of witnesses herself, as you have identified; and then rolling on to do the same for other witnesses as the inquiry proceeded. Her role changed very much as we moved on into areas where we did not need that sort of assistance, in particular regulation of the press.
Q883 Philip Davies: Of course, seven of the witnesses she questioned were Mr Sherborne’s clients. I am sure you can understand why people might feel that there was some sort of conflict of interest. I am sure you must be able to see that.
Sir Brian Leveson: She questioned Mr Sherborne’s clients who, I think, were all in November or December 2011.
Q884 Philip Davies: What role did she play in the drafting of Rule 13 warning letters, which were sent to editors in mid-August?
Sir Brian Leveson: "Ms Patry Hoskins assisted in the largely mechanical exercise of collecting and organising the evidence which appeared to support the generic criticisms set out in the Rule 13 letters. This entailed working through the inquiry document database and website using search terms and other tools to locate relevant evidence. In this mammoth exercise, producing a letter which was 121-pages in length consisting mainly of cross-references to the evidence, she was not working alone. Up to six lawyers were engaged in this process over a six-week period. More evidence was included in these letters than would ever find its way into the final report".
Q885 Philip Davies: Is it not true that substantial sections of your report follow the wording of those letters?
Sir Brian Leveson: I will carry on reading the letter, which I am sure you have seen. "Work on the relevant section of my report which addressed the culture, practice and ethics of the press, part F, did not begin in earnest until late August and, as I have already indicated, Ms Patry Hoskins had absolutely no role in that endeavour. This was a far more analytical process, which was undertaken under my very close direction and led to the conclusions that I expressed in the report. All the available evidence was carefully weighed and considered, as was evidence of good press practice, which was not set out in the generic warning letters, their purpose under the rules being to set out potential criticisms alone. It should not be surprising that the relevant sections of the report can, to some extent, be matched to the content of the Rule 13 letters. The purpose of the exercise is indeed to provide warning of that prospect. What you should also have noted, however, is that many of the potential criticisms in the generic warning letters were either expressed in a less critical tone or withdrawn altogether, in the light of the deep and careful thought that needed to be applied to the material and the helpful submissions with which the press furnished the inquiry in response to the letters".
Q886 Philip Davies: On the Press Complaints Commission, which you obviously want to see the end of, I wonder whether you felt you were hindered at all by the fact that neither you nor your staff ever visited the Press Complaints Commission to obtain any first-hand experience of its work and how it goes about it.
Sir Brian Leveson: I did receive first-hand experience of its work. Not only did I hear a number of witnesses who were in the employ of the Press Complaints Commission, I received a mountain of evidence, I think 10 boxes of evidence from the Press Complaints Commission. As regards my views about its future, I reflected in the report-I do not believe, save with one exception, that anybody believed the Press Complaints Commission could continue in its then form.
Q887 Philip Davies: You did not think about visiting them? That was never a thought that you had, to see what it did?
Sir Brian Leveson: I knew what it did.
Q888 Philip Davies: Did you not really think that would be of any benefit? That is fine. I just wanted to check that you did not think that. Finally, Mr Chairman, if I may, in terms of the arbitration system, as we have heard, many regional publishers are concerned that many of the complaints that are currently dealt with by the PCC will be turned into claims for compensation and that they may have to pay the cost even if they win their case. Did you foresee that danger?
Sir Brian Leveson: There is absolutely no reason why they would have to pay the costs if they win a case. An arbitral system will be inexpensive, speedy and quick. The fact is that complaints to what is now the PCC are in the main based upon code criticisms, which do not potentially generate actions for libel. As I have said, in answer to a couple of questions this morning, the test to demonstrate libel has recently changed by the Defamation Act 2012, so that it will be even more difficult to overcome the hurdle of proving and claiming libel.
Q889 Philip Davies: If you had this kind of arbitration system in mind, why did you not ask regional editors and publishers their opinion of it when they gave evidence at the inquiry, because the only witness you discussed it in any length with seemed to be the editor of the Guardian?
Sir Brian Leveson: I am not sure I recognise that summary of the approach that I adopted. Throughout the inquiry I was receiving evidence from all sorts of people in response to suggestions that were made, in response to questions that were asked, and it was open to anybody to submit any evidence they wished.
Chair: I am conscious that time is pressing on. However, Mr Farrelly, I know, has some detailed questions.
Q890 Paul Farrelly: I have some questions on the two areas that are highlighted, which are part of the continuing discussions before a draft charter is laid in the Library of Parliament tomorrow. That is namely arbitration, which has been touched on, but also the editors’ Code. With respect to the performance of the Press Complaints Commission, I am sure you will have taken into account, sir, in your inquiry and your report, the verdict of this Committee unanimously in February 2010 on the performance of the Press Complaints Commission in handling the phone hacking investigations.
Sir Brian Leveson: I did indeed. I ought to add that I was also very mindful of the report of this Committee generally because it had lots of other things to say, some of its suggestions being adopted in the recommendations that I made. If I have not previously expressed my gratitude to the Committee then I do now.
Q891 Chair: Sir Brian, it is very gratifying to know that the time we have spent reading your report is mirrored by the time you have spent reading ours.
Sir Brian Leveson: There were a number of suggestions that you made-I am sorry, I have not re-read it for this morning-which provoked a number of the recommendations I made, some of which are not entirely uncontentious, as I am sure you are aware.
Q892 Paul Farrelly: I am glad, Sir Brian, you have grasped the opportunity.
Sir Brian Leveson: I am pleased to have had it.
Q893 Paul Farrelly: Before I touch on arbitration and the code, I also want to touch very quickly on what you have described as your frustration about some of the reporting or misreporting of your report. I think you have been quite clear to say that it is not correct for the system that you recommended to be categorised in any way as state regulation of the press.
Sir Brian Leveson: I do not believe it is. I have made that clear, not once but many, many times, and have explained why.
Q894 Paul Farrelly: Yes. You could not have been clearer. If I take you back to your report. You do not have to leaf through it, but on page 1767, again in section K440. You say, "For the avoidance of doubt: I recommend that the Board-this is the board of a self-regulator-should not have the power to prevent publication of any material, by anyone, at any time." Therefore, I take it that it would be incorrect of anyone to infer that what you have recommended would in any way lead to political interference in stories, comment or editorial before publication?
Sir Brian Leveson: You are absolutely correct.
Q895 Paul Farrelly: Thank you. Again, that could not be clearer, for the record.
Sir Brian Leveson: I would have liked to have thought so.
Q896 Chair: Just on that point, therefore, can I confirm that your view is that, for instance, the article carried by the Daily Mail about the father of the Leader of the Opposition does not contravene any of the provisions that you set out in your report?
Sir Brian Leveson: That is not quite what I said. What I said was that the board would not have the power to prevent publication of anything. I am not commenting on whether what has been in the press contravenes or does not contravene the code and is not worthy of complaint. I am not commenting one way or the other, but I think that there is a slight difference.
Chair: I understand.
Q897 Paul Farrelly: Sir Brian, I am not trying to draw you into any controversy over the Daily Mail, Ed Miliband, his late father, his late uncle or whether the Daily Mail has in any way learned any lessons from your inquiry report because it would be wrong to do so. If I can move on to arbitration. It was the local newspaper editors who came in and gave evidence to us alongside the Newspaper Society, which also represents with key figures the national newspaper industry. The argument they put to us was that, effectively, having a free arbitration service, which is referred to in 4.46 of your section K, to quote them, "Would inevitably lead to many thousands of legal claims against regional and local publishers and significant legal costs." What they were trying to say was, assisted by the activities of claims farmers, that complaints that were made about accuracy could suddenly turn themselves into complaints that might give rise to legal action and, therefore, be turned into compensation claims. During your inquiry did you receive any evidence, compelling or not, that that might be the case?
Sir Brian Leveson: No, and my concern is that I do not understand the rationale because claims farmers work where there is a prospect of them getting money. The whole idea of this system is that it is not going to generate recoverable costs, so I am not sure what the benefit of somebody trying to whip up claims would be. That is why I recommended the system that I recommended.
Q898 Paul Farrelly: We asked the Newspaper Society for an analysis of the complaints that were made to the Press Complaints Commission. I have broken down as to those that were made about accuracy, and a detailed analysis of those complaints, to support a contention that they could somehow transform themselves into legal claims. We have not received that, so we are rather at a loss based on any evidence to support that view as well.
Sir Brian Leveson: Complaints about accuracy do not even start to reach the threshold of a potential claim in libel. That is my response to the concern that these claims would be generated.
Q899 Paul Farrelly: Parliament has clearly legislated with the Libel Reform Act to help serious investigative journalism by raising the bar. As you have said, the bar for people already going to court is already high because it is terribly expensive. One of the arguments I put to one of the regional publishers was that, in effect, by making their arguments, they were really objecting to the bar on people getting redress through an arbitration system being lowered so that they would have to give redress. Do you think that is a reasonable observation to make? Do you understand my point?
Sir Brian Leveson: Yes, I understand your point. It is the converse of the argument that if it is really so expensive to bring proceedings people will think very carefully before they do and only the very rich can afford to do it.
Q900 Paul Farrelly: In your inquiry, you went out of your way to praise local newspapers. They were not the transgressors or they were not the main focus of the events that led to the setting up of your inquiry. Now they saying that they will be suddenly flooded with complaints dressed up as legal claims and be tied up in costly arbitration. Does that mean that you were wrong in your inquiry in praising them?
Sir Brian Leveson: I do not withdraw the praise that I offered them. I said, "A new regulatory system must work for the whole press and the emerging digital market, not just for the national press. The local and regional press, with some magazines and online news providers, have identified a number of concerns about the compliance burdens, the cost, the ability of that part of the press to influence the system and the ability of the regulator to vary the contract without the support of all members. These are real concerns and I would anticipate the publishers will want to see real answers to them before agreeing to sign up to the system. It might, for example, be sufficient to rebalance the burden of costs between local and national publishers but, without detail, it is impossible to say. It would obviously be important from a credibility perspective that resolving these concerns should not significantly weaken the independence or regulated power of the body proposed."
I also said on part C, chapter 2, "In relation to regional and local newspapers, I do not make a specific recommendation but I suggest the Government should look urgently at what action it might be able to take to help safeguard the ongoing viability of this much valued and important part of the British press. It is clear to me that local, high-quality and trusted newspapers are good for our communities, our identity and our democracy and play an important social role. However, this issue has not been covered in any detail by the inquiry and, although the extent and nature of the problem has been made clear, the inquiry has heard no evidence as to how it might be addressed. I recognise there is no simple solution to this issue. I also recognise that many efforts have been made over the years to try to find a solution, and that many of the options for public support that have been canvassed are not appropriate. This does not make the need to find a solution any less urgent. I should also, perhaps, make it clear that the regulatory burden proposed later in this Report should not provide an added burden to the regional and local press".
Q901 Paul Farrelly: It is for the press itself to set up its own regulator.
Sir Brian Leveson: That is entirely the point.
Q902 Paul Farrelly: The ball is in their court to get the balance of contributions correct.
Sir Brian Leveson: That is exactly what I said.
Q903 Paul Farrelly: Finally, I want to come on to the editorial code, which is the second outstanding issue of discussion at the moment. Your recommendations on the editorial code are under point 4.21 of chapter 7, section K, where again I do not think you could be clearer. You say, "I recommend that the standards code must ultimately be the responsibility of, and adopted by, the Board advised by a Code Committee which may comprise both independent members of the Board and serving editors." That seems to me quite clear.
Sir Brian Leveson: I was very keen to ensure that serving editors have buy-in, and equally that they were not determinative. That is how I tried to get the balance. That is why I recommended what I recommended.
Q904 Paul Farrelly: You do not have to read it but when I read the Articles of Association of IPSO, and find the responsibilities and powers of the company that forms the regulator, there is nothing there on approving or drawing up the code. There is no reference to it. There is not even a provision at all about the composition of the Code Committee in the article, so I can draw my own conclusion that that is not really reflecting what you very clearly have said.
Sir Brian Leveson: People make up their own mind about what they want to do.
Q905 Paul Farrelly: One of the problems with the code is that it is not the code itself-it is a wonderful body of work-it has been its enforcement. I think in the executive summary at paragraph 38, you touch on one of the problems with the code and its enforcement in a nutshell. These are my words, not yours, "Do not let the code get in the way of a good story." That has been one of the problems of standards. Is that a fair reflection on this code?
Sir Brian Leveson: Yes. At the very end of my inquiry there was some evidence that expressed views as to the way in which the code could be improved. I did not go into that because I had not dealt with it in the earlier part of the inquiry and felt it would be wrong to do so, but I simply laid it out. You have read what I have said about the code and the way it is enforced.
Q906 Paul Farrelly: The way the regulator should take responsibility for it?
Sir Brian Leveson: That is what I recommended, no question.
Q907 Paul Farrelly: It should not simply be in the hands of the industry?
Sir Brian Leveson: That is what I recommended.
Q908 Paul Farrelly: Okay. Sir Brian, do you-
Chair: "Finally" was about three questions ago.
Paul Farrelly: This is the final, final one. Almost finally; A and B finally. To what extent do you think the editors’ Code would be more likely to be enforced, if the Code Committee were not chaired by the editor of a newspaper that is one of the most complained about?
Sir Brian Leveson: Independent self-regulation means independent self-regulation. The industry must set up their regulator for themselves, but what I am keen that it should do is be, firstly, independent, and secondly, effective. It has to work for them, but it has to work for the public. I would hope that in setting up whatever they set up they are mindful of the public concern that has been generated, which is only pulled together by my report but which was clearly generated before it.
Chair: One very short question from John Leech.
Q909 Mr Leech: In the report you said, "Any solution must be perceived as effective and credible both by the press as an industry and by the public." With hindsight, given the interpretation of some of your recommendations by members of the press that this is effectively the gagging of the press and state regulation, have you not effectively given the press a veto on any reform because they are never going to sign up to anything that goes along with your recommendations?
Sir Brian Leveson: I do not think that the press have a veto in one sense. It is for you to decide how you believe the way forward should be. Ultimately, there needs to be an independent and effective mechanism to regulate the press. The concern that the press most reflected to me was statutory regulation. Submissions were made to me that were to the effect that I should impose a mechanism of statutory regulation. I believed that there was sufficient understanding of the problem and goodwill not to have to go down that route, and I did not. I made no recommendation in that regard at all.
Q910 Mr Leech: Would you accept, though, that if the press see your recommendations as gagging of the press and state regulation of the press, they can never think that something that is compliant with your recommendations is credible or effective?
Sir Brian Leveson: I do not understand how self-regulation, independent self-regulation that is effective to the standards that the independent regulator sets for itself, ever gags the press.
Q911 Chair: Sir Brian, can I thank you very much? There is just a final question, without wishing to depress you too much. I am sure, you are very much aware that so far you have fulfilled part 1 of the terms of reference that were set out for your report. Do you anticipate that in due course you may be undertaking part 2 of the inquiry?
Sir Brian Leveson: I have always been conscious that there was a part 2 and I have reflected upon it. I am keen to see what happens. It is abundantly clear that we are about to embark upon a series of criminal trials. Therefore, nothing can happen until all that is done. At that stage, somebody will have to look and see where we are. Where we are on who did what to whom, which is how I have summarised part 2. Perhaps where we are on independent self-regulation of the press, and then review what needs to be looked at further. At that stage, doubtless the then Government will make decisions and we will see where we are.
Q912 Chair: That someone might be you?
Sir Brian Leveson: I cannot say it will not be me. I now have very different responsibilities running the Queen’s Bench Division of the High Court, which is itself a substantial amount of work on top of what remains the day job that is sitting in court.
Chair: Indeed. It may not be for some time. Thank you very much for appearing this morning.