UK: The Leveson Saga

Last Updated: 9 April 2013
Article by Nick Armstrong

Out Of The Frying Pan, Into The...Long Grass?

As most people with any interest in the subject are probably weary of hearing, after 97 days of public hearing, hundreds of witnesses, thousands of pages of evidence, costs as at 31.10.12 of £5 098 600, Leveson LJ's Report on Part 1 of the Inquiry was published on 29.11.12. It's 2,000 pages with a 48-page executive summary are widely available online along with potted summaries.

Will any of it ever find its way into force? The public and political debate span off almost immediately into polarised rhetoric, some intransigent (and apparently unrepentant) press people hysterically bemoaning the end of press freedom, at the other extreme from equally vociferous spokespeople for victims of the press's worst excesses. Political disagreement, Lordly sabotaging of draft government legislation, cancelled inter-party talks, a high-risk emergency vote in the Commons....

Then we heard about the 18th March Deal after late night meetings between party leaders and 'advisers'.... and a solution was proposed, not undiluted pure Leveson, but an oddly-labelled blend....

"Royal Charter"

Starting with this cheery line from HM The Queen "TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING!" The Royal Charter creates a so-called 'recognition body' to oversee a new press regulatory body which will feature:

  • Independent appointments and funding
  • A robust standards code ·
  • Power to impose large fines (1% of turnover, up to a maximum of £1 million)
  • Power to order publication of prominent corrections and apologies ·
  • A free arbitration service for victims and a fast complaints system ·Power to initiate investigations

The Charter is underpinned by two bits of law inserted into random current bills before Parliament:

  • to ensure that it can only be changed with a two thirds majority of MPs and peers: an amendment to the Enterprise and Regulatory Reform Bill, a piece of legislation that will set up a green investment bank...
  • to ensure that publishers who refuse to join the new regulatory regime will be liable - potentially - for exemplary damages if a claim is upheld against them, together with legal costs penalties: a series of amendments to the Crime and Courts Bill, a piece of legislation that will set up a new national crime agency.

The proposed scheme is intended to cover "relevant publishers". They are: newspapers, magazines and news-related websites.

But they must choose to opt-in, to be regulated by the new watchdog. Thereby hangs the greatest of the various uncertainties thrown up by the Deal: will relevant publishers sign up? A number of major groups and publications have indicated "No" - and there is talk of them setting up a rival press regulatory body. Could anything other than hopeless confusion flow from that?

A major bone of contention is the provision relating to exemplary damages (arguably also a flaw in the original Leveson proposals) - there is the prospect of a legal challenge on the ground that it is inimical to human rights law on freedom of expression. Flaws have been pointed out in the costs provisions.

Moreover, there is alarm about the financial implications for local newspapers; and of the impact of the proposed régime on relevant websites (the internet was somewhat of a lacuna in the entire Leveson report which concentrated on the 'historic' medium of print press).

And anyway, what are "news-related" websites? According to Culture Secretary Maria Miller (one of the PM's deal-making lieutenants) to be capable of regulation - and the consequences of not opting-in - a website "would have to meet the three tests of whether the publication is publishing news-related material in the course of a business, whether their material is written by a range of authors - this would exclude a one-man band or a single blogger - and whether that material is subject to editorial control".

She said the new rules were designed to protect "small-scale bloggers" and to "ensure that the publishers of special interest, hobby and trade titles such as the Angling Times and the wine magazine Decanter are not caught in the regime", but publications like Hello! magazine would be subject to regulation. Miller said "student and not-for-profit community newspapers" would not be caught under the new rules and that "scientific journals, periodicals and book publishers will also be left outside the definition and therefore not exposed to the exemplary damages and costs regime".

The late-night deal, the appearance of haste, the quaint 'Royal Charter' solution, the apparent exclusion of the press from the making of the deal whereas there is talk of phone-hacking victim representatives having been in attendance, the potential for legal challenge, the prospect of some publishers opting in but many opting out...

It all bodes ill for a clear, once-and-for-all resolution to the upheavals caused by the phone hacking crisis - which itself seems to continue unabated with fresh arrests, and a new newspaper group in the frame.

A government spokesman has said that the proposals in the draft Royal Charter will be submitted for approval to the Privy Council at its next meeting on 8 May and will then move on to the Queen for the final seal, whereupon the process to set up a recognising body would automatically be triggered, taking between six and eight months...

It would sadly be astonishing if within that time frame, a coherent and unified press regulation system comes into being on the current basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nick Armstrong
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