1 DAVID JAMES FLETCHER LORD HUNT OF WIRRAL (sworn)
2 Questions by MR JAY
3 MR JAY: Lord Hunt, please sit down and make yourself
4 comfortable. Your full name, please, for the Inquiry?
5 A. David James Fletcher Lord Hunt of Wirral.
6 Q. Thank you very much. You have kindly provided the
7 Inquiry with a witness statement which is signed and
8 dated by you on 12 January this year, and there's also
9 a statement of truth. So this is your formal evidence
10 to the Inquiry; is that right?
11 A. Yes, it is.
12 Q. Thank you very much.
13 LORD JUSTICE LEVESON: Lord Hunt, I think it's right --
14 I think there's a difference between us of seven years,
15 and I must confess that I have absolutely no
16 recollection at all, but I am reliably informed that we
17 attended the same school, if that matters to anybody,
18 the school being in Liverpool.
19 A. I'm very proud that we both went to Liverpool College
20 and I have a clear recollection of that experience
21 but --
22 LORD JUSTICE LEVESON: Oh, I recollect the experience.
23 MR JAY: Lord Hunt, you have been the chairman of the PCC
24 since 17 October of last year, so that gives you only
25 three months' experience, as it were, in the saddle. In
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1 a nutshell, your previous career, please?
2 A. I can personally think of no better container than
3 a nutshell. Shall we keep it at that, or would you like
4 me to go --
5 Q. We're not going to cover every detail, but you were
6 a member of Parliament. You served in the cabinet under
7 Baroness Thatcher, I think as Secretary of State for
8 Wales, is that right, and then under Lord Major --
9 sorry --
10 LORD JUSTICE LEVESON: Sir John.
11 MR JAY: Sir John Major. I think you were, again, Secretary
12 of State for Wales and also Chancellor of the Duchy of
13 Lancaster. You left Parliament in 1977. You became
14 a life peer, is that correct, back in 1997?
15 A. 1997. So I've been in Parliament for 35 years.
16 Q. Thank you very much. Since then you have been
17 a practising solicitor, partner, at a well-known firm,
18 which practises in commercial and regulatory law -- that
19 is your specialism -- and you became chairman of the PCC
20 in the autumn.
21 May I ask you about the appointment process. You
22 answered an advertisement, which you refer to in
23 paragraph 3 of your witness statement; is that right?
24 A. Yes.
25 Q. You provided me with a copy of the advertisement and it
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1 states that the candidate must be committed to the
2 principles of press freedom and to self-regulation, and
3 presumably it follows that you are committed to those
4 principles?
5 A. Yes. May I just point out that I joined my present law
6 firm in 1965 and I've been a partner since 1969. So it
7 pre-dates my career in Parliament and it has continued
8 right up to date.
9 Q. Thank you.
10 A. But I applied for the job because I have a passionate
11 belief in freedom of the press. I think it's one of the
12 most valuable assets we have in the UK and it's much
13 envied across the world.
14 I also have seen for myself how state regulation can
15 go very badly wrong, and it's always preferable if it
16 can be the self-regulation which is the basic structure.
17 Q. Thank you. I'll obviously cover that in a moment with
18 you, Lord Hunt. May I understand what you mean by
19 "self-regulation", regardless of what the advertisement
20 might mean by it?
21 A. Self-regulation of the press, which I'd prefer to call
22 independent self-regulation of the press, means of the
23 press, for the press, in the public interest.
24 Q. But not by the press, presumably?
25 A. Well, it must, of course, be a voluntary system into
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1 which the press subscribe. I also chair a body called
2 the Lending Standards Board, which is a self-regulatory
3 body, successor to the Banking Code Standards Board,
4 which was again a self-regulatory structure which was
5 subscribed to by all the major firms involved in that
6 particular industry. So when I refer to
7 self-regulation, I really want to see the participation
8 of the whole industry in its own regulation.
9 Q. Thank you. To go back to the process of application and
10 interview, it is clear from Mr Abell's evidence
11 yesterday that you must have been interviewed by the
12 current chair of PressBoF, who is Lord Black; is that
13 correct?
14 A. Yes. My recollection, on 30 September, was that my
15 previous interviews had been with a firm who had been
16 instructed to come forward with a shortlist, and it was
17 my contact within that firm, a Mr Vardi, who made we
18 aware that I was to be interviewed on 30 September.
19 When I arrived, the chairman of the interview panel was
20 Lord Black, but there were a range of people on the
21 other side of the table, including an independent
22 assessor.
23 Q. The range of people -- there were some lay members, as
24 it were, and other members of PressBoF; is that correct?
25 A. I was told that the interview panel was a subcommittee
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1 of PressBoF. But it had, of course, the independent
2 assessor and also the head-hunting firm was represented
3 on the other side of the table.
4 Q. In an interview which you gave with or to
5 Professor Greenslade, you apparently said, in terms of
6 why you put your name forward, that it was Lord Wakeham
7 who got you into a corner and, as it were, persuaded you
8 to throw your hat in the ring. Is that fair or not?
9 A. It's a complicated history, and I'm not sure how much
10 you want me to go into it, but I was, at the time,
11 considering putting my name forward for a range of
12 posts. I then became aware of this advertisement, and
13 Lord Wakeham, with whom I served -- I was one of his
14 colleagues for many years -- told me that he felt that
15 there was a need for the regulation of the press to be
16 taken further forward with some ideas, and he was aware
17 that I had just, for the Law Society of England and
18 Wales, presented them with a report on the recommended
19 future of regulation of solicitors and I'd also carried
20 out the first independent review of the Financial
21 Ombudsman Service. So against that background, John
22 Wakeham said to me that he thought I should put my name
23 forward.
24 Q. Thank you. One other point which comes out of
25 Professor Greenslade's interview is that you told him
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1 that in your view the PCC was not a regulator. Does
2 that accurately set out your position and/or would you
3 wish to elaborate on that?
4 A. Yes. Speaking as a lawyer, I looked at the articles of
5 association and at the powers of the Press Complaints
6 Commission, against also the background of having been
7 in the cabinet that received the reports of Sir David
8 Calcutt in 1990 and then again in 1993, which described
9 what was needed as a regulator.
10 But I think in the second report, in 1993, Sir David
11 concluded that the press had not come forward with what
12 could be described as a regulator and he set out what he
13 felt a statutory regulator should be. So against that
14 background, I could see that the PCC was not, in
15 Sir David's terms, a regulator, and it had -- didn't
16 have the powers of a regulator. I thought I was stating
17 the obvious.
18 Q. Yes.
19 A. But suddenly I became aware that virtually everyone
20 agreed with me.
21 LORD JUSTICE LEVESON: Well, Sir Christopher doesn't.
22 A. Yes, Sir Christopher and I go back a long way and I can
23 hardly recall a time when he has agreed with me, but
24 I don't want to go too far.
25 LORD JUSTICE LEVESON: No, I think you've said quite
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1 sufficient, thank you.
2 MR JAY: Is it inherent in what you're saying, Lord Hunt,
3 that a regulator would have wider powers, both of
4 investigation and of sanction?
5 A. Yes. Once -- what I feel is that the PCC has some
6 appurtenances of a regulator, such as a pre-publication
7 service of developing a book of caselaw, but it doesn't
8 have the full range of powers that any regulator must
9 have and therefore I conclude it is not a regulator.
10 The proposed new body, to which we'll come in
11 a moment, would be a regulator and I regard that as
12 a huge difference.
13 Q. Thank you. Your aversion to statutory regulation of the
14 press is made clear in paragraph 3 of your witness
15 statement, if not elsewhere. The reason you give:
16 "I believe that would be an unacceptable impingement
17 on our freedoms."
18 Why is there a nexus between statutory controls,
19 as you describe them here, and an impingement on our
20 freedoms?
21 A. Perhaps it would suffice to quote someone whose statue
22 is outside my law office, John Wilkes, who, 250 years
23 ago, in 1762, said, "The liberty of the press is the
24 birthright of a Briton, and is justly esteemed the
25 finest bulwark of the liberties of this country."
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1 That's something I so passionately believe in.
2 Q. I think all of us would believe in that, but it's the
3 antipathy or aversion to statutory controls and the
4 impact that those controls might have on these cherished
5 freedoms. Why does the existence of statutory controls
6 threaten these freedoms?
7 A. I think I would talk about statutory regulation, not
8 statutory controls. I rely on "The Essential Law for
9 Journalists" to point out all the statutory provisions
10 that apply and restrict freedom of the press. I'm not
11 just talking about defamation or the Data Protection Act
12 or the Freedom of Information Act. The list is endless.
13 It's a massive textbook. So there is also statute
14 there.
15 What is missing, thank goodness, is a statutory
16 regulator, and that is what I would regard as an
17 infringement of the freedom of the press.
18 Q. I think, again, we might all agree that if there were
19 a statutory regulator which itself was responsible for
20 the imposition of standards and, by virtue of that,
21 would be capable of curbing the exercise of the press'
22 democratic right to express itself, then we would have
23 a regrettable state of affairs. But if the statutory
24 regulator did not have power to set standards, would the
25 very fact that there was a statutory regulator be
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1 offensive, in your view?
2 A. Yes.
3 Q. Because?
4 A. Because of my 35 years in Parliament. Perhaps the best
5 way to describe my background is to say that I've seen
6 too many examples of where a simple objective was to be
7 reached through a new bill, and perhaps I would
8 summarise it by saying the road to parliamentary hell is
9 paved with good intentions.
10 LORD JUSTICE LEVESON: Does that include -- and I've raised
11 this with a couple of witnesses -- the independence of
12 the judiciary, now enshrined in section 3(1) of the
13 Constitutional Reform Act?
14 A. I have in front of me the Constitutional Reform Act, and
15 I do recall when it was going through Parliament and the
16 debates that we had, where judicial opinion was greatly
17 valued, particularly in the upper house, and there was
18 general agreement that we had to enshrine the
19 independence of the judiciary in legislation. But there
20 is no such agreement -- and I'm well aware of the views
21 of my parliamentary colleagues -- there is no such
22 agreement about the independence of the press. There
23 are very strong views in Parliament that there must be
24 stronger limits on the power of the press and this
25 would, therefore, in my mind, open a Pandora's box. It
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1 would be, for many of my colleagues in Parliament,
2 a wonderful moment if they were given the opportunity to
3 move amendments, to debate a bill regulating the press,
4 and I just do not know what would emerge the other side.
5 We were determined that what would emerge the other
6 side with the 2005 Act was the independence of the
7 judiciary. There is no such agreement about the
8 independence of the press.
9 LORD JUSTICE LEVESON: So you think that Parliament might
10 seek to use any form of legislation, however it was
11 cast, as a way of controlling the press?
12 A. Yes, and they have told me so, many of them, in both
13 houses, and that is what is driving me forward to find
14 a solution and to respond positively to your own
15 comments, right at the outset of this, particularly in
16 the seminars, that there is a wonderful opportunity for
17 the press itself to put its own house in order.
18 LORD JUSTICE LEVESON: I don't think that's quite how
19 I expressed it, but I certainly said, and firmly
20 believe, that it's critical that the press engage in the
21 debate about how its regulation, with a very small "R",
22 should move forward, because it's critical that whatever
23 system emerges works for them, but it's equally
24 critical, as I have made clear, that it works for --
25 I've said "me", but by "me", I of course mean the
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1 public.
2 A. Yes.
3 LORD JUSTICE LEVESON: And in the light of all that has
4 emerged, I think I've said this: tinkering around the
5 edges is, I think, unlikely to be sufficient.
6 A. (Nods head)
7 LORD JUSTICE LEVESON: I gather from your nod that you do
8 not disagree with me?
9 A. Oh, I strongly agree. I think this is a tremendous
10 opportunity for the press themselves to come forward
11 with the sort of system which Sir David Calcutt was
12 asking for. As you may know, I worked very closely with
13 Sir David Calcutt on a range of cases. I'm a great
14 admirer of his excellent, and in his second report, he
15 set out very clearly the way ahead, and I have done my
16 best to persuade those with whom I've consulted that
17 that is the right way forward, but not by statute.
18 LORD JUSTICE LEVESON: I'll deal with it at the end.
19 MR JAY: We'll come back to your proposals for the future in
20 due course, Lord Hunt, but may I just deal with a number
21 of points you raise in your statement?
22 You identify in your view the strengths of the
23 current system. They can be collected under a number of
24 heads. The first is you've been impressed by the way in
25 which the Commission has been able to conciliate
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1 complaints. That's paragraph 10 of your statement.
2 Presumably in your three months in the saddle, you have
3 had direct observational experience of that; is that
4 correct?
5 A. I -- yes. I greatly admire the dedication and
6 commitment of the staff at the PCC. I've listened to
7 them dealing with calls from the public. I have been
8 made aware of the way in which they respond in
9 a compassionate and caring way to members of the public
10 who have what they feel is a genuine grievance and they
11 work hard to ensure that a satisfactory solution is
12 found.
13 Q. Do you feel that they take a particular side or, I think
14 in the words of Mr Abell yesterday, it's sort of 60/40
15 in favour of the customer as against the press. Would
16 that be your perception how they balance the two?
17 A. I would say that my perception was that they pursue an
18 independent course, seeking to balance, on the one hand,
19 the freedom of the press to comment and on the other
20 side the public interest, and I think the recent change
21 to the code, which only came into effect on 1 January,
22 the 1st of this month, is an example of how the
23 experience of the staff has been instrumental in
24 constantly putting the code under careful review and
25 improving it as and when necessary.
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1 Q. Paragraph 12 of your statement, Lord Hunt, deals with
2 the code. You say you start from the belief it's
3 important the rules are written by the professionals
4 themselves, pausing there, presumably because the
5 professionals themselves have the knowledge and
6 experience to know what the standards should be. Then
7 you say:
8 "... so long as they're responsive to public
9 concerns."
10 Can I just explore with you what the mechanisms are
11 to ensure that the code of practice, as a living
12 instrument, is properly responsive to public concerns,
13 please?
14 A. I'm not sure we have the best way of doing that at the
15 present time, so no doubt we'll come onto the way ahead,
16 but I would just, again, instance the amendment to the
17 public interest test which came in on 1 January, which
18 added to the code that -- the words "and how and with
19 whom that was established at the time".
20 This is to negotiate a way through of understanding
21 the public interest and how the public interest was
22 affected, and I think there needs to be much clearer
23 definition of processes, which I would advocate through
24 authorised internal regulation within the newspaper or
25 magazine.
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1 LORD JUSTICE LEVESON: That picks up a point that has been
2 mentioned several times by me, certainly, during the
3 Inquiry, about an evidence base for the decision-making
4 that was involved in making public interest assessments.
5 Is that right?
6 A. I agree.
7 MR JAY: Maybe we can take this out of sequence, if you
8 don't mind, Lord Hunt. Ensuring that the code, as an
9 organic series of principles and rules, is kept
10 responsive to public concerns, how would you recommend
11 that that is achieved?
12 A. I think it is part and parcel of the way in which I've
13 been looking ahead. I'm trying not to look back too
14 much, because I think there's too much history here,
15 although I felt Stephen Abell gave us a lot of lessons
16 that can be learned from the past, as he outlined the
17 way forward. But certainly there is a need for
18 a separate standards arm alongside the complaints and
19 mediation arm, and there should be scope for perhaps
20 a third arm. No doubt we'll return to that point.
21 But this new structure, I think, is sorely needed,
22 and I've come to the conclusion that we do urgently need
23 a fresh start and a totally new body with substantially
24 increased powers to audit and enforce compliance with
25 the code, to require access to documents, to summon
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1 witnesses, when necessary, and also to impose fines, all
2 backed by commercial contracts.
3 Q. We'll come to that very shortly.
4 The other plus points you wish to draw our attention
5 to in your witness statement: paragraph 13, the issue of
6 harassment, and paragraph 14, the issue of
7 pre-publication advice.
8 You mention problems with the paparazzi in
9 paragraph 13. If it were made clear that the newspaper
10 publishing a photograph would be responsible for the
11 photo in all its attributes, really, including the mode
12 of obtaining of the photograph, then how the paparazzo
13 himself or herself had obtained it would be subsumed to
14 the newspaper, wouldn't it?
15 A. Yes. So that's the way you control the product, but if
16 I might add, I think there's also a place for
17 considering whether we shouldn't have voluntary
18 self-regulation by the photographic agencies as well,
19 because we have to bear in mind a number of the
20 photographers are not necessarily anything other than
21 freelance. Quite often, I understand, they're from
22 other countries and publication occurs in other
23 countries but the power of our press ensures that they
24 don't appear in the UK, unless certain clearly defined
25 objectives are met.
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1 LORD JUSTICE LEVESON: Making the editor responsible for
2 everything that's in his paper or her paper, whether
3 it's a photograph that had been taken in breach of
4 privacy rights or information that's been obtained
5 through a private investigator acting in breach of the
6 Data Protection Act, will make the editor or his team
7 careful about what information they use and how they
8 obtain it, presumably.
9 A. Yes. Yes. This is really self-regulation at its very
10 best.
11 MR JAY: The weaknesses of the current system. Some of them
12 you've already touched on, Lord Hunt. The absence of
13 formal legal powers as manifested in the phone-hacking
14 investigation, the inability to check basic facts,
15 et cetera.
16 Secondly, the voluntary nature of the system, which
17 means that anybody could pull out, as indeed
18 Northern & Shell have done.
19 And the third point, paragraph 19, the way
20 compliance and internal mechanisms work within
21 newspapers and magazines. Can I ask you, please, to
22 elaborate the points you make under paragraph 19,
23 please?
24 A. Yes, well, here I would argue a natural and obvious
25 feature of any effective system of self-regulation is to
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1 ensure that the internal compliance and complaints
2 mechanisms within a paper operate and operate properly.
3 Q. Yes.
4 A. The complaints and mediation arm should always be the
5 last resort when the individual has not had proper
6 satisfaction direct.
7 Q. Is it implicit in paragraph 19 that you feel that, at
8 least in certain newspaper organisations, what we have
9 chosen to call corporate governance has been less than
10 satisfactory?
11 A. I think, looking -- I'm anxious not to be an apologist
12 for the past, but looking back, I'm constantly reminded
13 of the judgment in the Barings case, that the admiral on
14 the bridge should know, surely, what is happening in the
15 engine room, and there has been a feeling that perhaps
16 at the most senior level in a number of publications,
17 proprietorship, that insufficient knowledge and
18 responsibility has been taken, but there's been
19 insufficient knowledge of what was going on throughout
20 the organisation.
21 LORD JUSTICE LEVESON: It's a rather stronger case than
22 Barings, because in Barings it was the work of
23 a scientist called Dr Wong in Singapore who wasn't
24 identified in London.
25 A. Yes, yes, I agree.
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1 MR JAY: Thank you. We look now to the future. This is
2 paragraph 21 and following, Lord Hunt, of your
3 statement. Can we just understand, please, what has
4 been happening, as it were, behind the scenes. You
5 refer to a meeting which took place on 15 December of
6 last year, and this included editors, publishers and
7 senior industry figures. Presumably a meeting which you
8 chaired; is that right? Or did PressBoF chair it?
9 A. Well, it was a meeting at which I presented what I must
10 confess are my proposals. When I was interviewed for
11 the job, I remember I was closely questioned on the
12 approach I would take, and I did say that I felt I could
13 only really advise properly on what should be the right
14 way forward if I had a blank piece of paper to start off
15 with, and I found that that met with some degree of
16 support and respect.
17 Since I originally was interviewed, I have been
18 consulting as widely as I possibly could, and I was
19 encouraged, particularly bearing in mind the words used
20 in this Inquiry, about coming forward with proposals, at
21 least to share with the editors the way in which I saw
22 the future, and a meeting was called where -- I think it
23 was around about 50 editors, including all the most
24 senior editors, including several proprietors, including
25 the four -- or was it even five, with OK magazine,
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1 editors from Northern & Shell -- they all attended.
2 I presented my proposals in detail, which I'm very keen
3 to share with the Inquiry, and I was very pleasantly
4 surprised to find that everyone agreed.
5 So there is consensus on the right way forward.
6 Important now -- the target now is to start the process,
7 whether in shadow form -- trying to make sure that we
8 create the right sort of body on which can be built
9 a much more effective process of independent
10 self-regulation.
11 LORD JUSTICE LEVESON: As opposed to saying the target is
12 now me?
13 A. I have to be very careful, and of course I say yes, but
14 it just so happens I'm giving evidence on Thursday to
15 the joint Select Committee, and in a way I'm seeking to
16 try and get the widest possible consensus on the right
17 way forward. But I think, sir, the one area on which
18 I'm sure we will be fascinated as to your conclusions is
19 on the carrot side of this whole process.
20 I'm well aware, from my discussions with a lot of my
21 parliamentary colleagues, that when the defamation bill,
22 if it is contained in the Queen's speech, comes forward,
23 there is a real opportunity then perhaps to build a much
24 better, quicker, safer, freer system, fairer system of
25 adjudicating on complaints and dealing with defamation
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1 and privacy issues in a different environment to that
2 which, at the moment, applies.
3 LORD JUSTICE LEVESON: I'm sorry, I don't quite understand
4 that. Does that mean that there is an appetite to
5 include within the bill that's had pre-legislative
6 scrutiny some other provisions?
7 A. Yes. But they're not that different. If one looks
8 carefully through Lord Mawhinney's report on the draft
9 defamation bill, there is a belief that building on the
10 Reynolds defence might be a very interesting way
11 forward.
12 LORD JUSTICE LEVESON: Well --
13 A. And Lord Lester of Herne Hill has already shared with
14 many colleagues his wish to see something modelled on
15 the Irish Press Council reference in the Irish
16 legislation being included in the defamation bill, but
17 that will be much later this year, after, sir, you have
18 reported.
19 LORD JUSTICE LEVESON: Well, that's the point. I'd be very
20 keen to learn about that and the ideas that Lord Lester
21 and indeed anybody else has, as indeed I've made clear
22 I'm very keen to hear from you. Well ...
23 MR JAY: Lord Hunt, in terms of the proposals which you
24 outline in your witness statement, you make it clear
25 that these are very broad interim conclusions which
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1 need, perhaps, to be stress-tested and subject to
2 further discussion. Can we identify the key features?
3 You say quite clearly that the existing PCC
4 structure is not viable and needs to be replaced, that
5 there can be no question of tinkering at the edges. In
6 terms of what the body would look like, putting to one
7 side the source of its powers, you, I think, have at
8 least two arms; is that correct?
9 A. Yes.
10 Q. Could you explain that to us, please, Lord Hunt?
11 A. Well, I think we've heard evidence identifying certain
12 weaknesses with the present -- the current system of
13 self-regulation.
14 The proposal is that the new regulator should have
15 two arms, one that deals with complaints and mediation,
16 continuing the valuable work that's been going on
17 hitherto at the -- by the staff of the PCC, and one --
18 a separate arm that audits and, where necessary,
19 enforces standards and compliance, compliance with the
20 Editors' Code, with much greater emphasis on internal
21 self-regulation, with a named individual carrying
22 personal responsibility for compliance at each and every
23 one of the publishers and those responsible for
24 newspapers and magazines.
25 The individual will be responsible for providing
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1 a simple but thoroughgoing audit of compliance on an
2 annual basis, and as you've just mentioned, that will be
3 underpinned by a system of commercial contract.
4 Q. Is it right, therefore, that the Code of Practice
5 Committee would disappear and become part of the
6 compliance and standards arm of the PCC? Have
7 I correctly understood that?
8 A. I think the design that I have worked up, as you rightly
9 say, is a matter for further discussion. I do make
10 clear: these are my proposals, but I have done my best
11 to consult widely within the industry, with other
12 stakeholders, including many colleagues in Parliament,
13 and they have now been endorsed both by the Press
14 Complaints Commission and by the industry itself at that
15 meeting we had on 15 December, and I think it's very
16 encouraging that there is such a wide consensus for
17 radical reform. The very existence of this Inquiry has,
18 I think, been the key important factor in ensuring that
19 all the major players in the industry now accept that
20 radical reform is an urgent necessity.
21 Q. Yes. I'm just concerned about the code of practice. On
22 my understanding of your evidence, it's likely to be
23 located within the compliance and standards arm, but in
24 terms of how the code would reflect public concern,
25 public perception, et cetera, is it being proposed that
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1 there be lay representation on the committee or the
2 compliance arm which would have responsibility for the
3 code of practice?
4 A. Yes, and that there should also be a review -- an
5 independent review of the code. This is all part and
6 parcel of the overall proposals, which I have summarised
7 in a two-page document which I have circulated to each
8 of the editors who attended that meeting, and on which
9 I'm now getting a number of very helpful and positive
10 responses.
11 Q. In terms of identifying the source of power -- this is
12 your third bullet point at page 54998 -- you make it
13 clear that there does need to be a formal legal
14 underpinning of the system. Is that because, Lord Hunt,
15 if you have a body which can impose fines, which can
16 require editors to provide documents and have other
17 coercive powers, there needs to be some legal framework,
18 otherwise there is no means of achieving compliance? Is
19 that correct?
20 A. Yes. It's not a new idea. One leading Queen's Counsel
21 pointed out to me that Lord Shawcross had raised the
22 whole question of there being contractual underpinning
23 of the self-regulatory system in his Royal Commission
24 report.
25 Q. Yes. So --
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1 A. So I'm not seeking to be innovative. I'm building on
2 what I think is the right way forward, as expressed
3 previously.
4 Q. But you would be content, on my understanding of this
5 third bullet point, with a contractual system, the
6 contract being the source of power, as it were, which
7 was recognised within statute -- or in due course was
8 recognised within statute -- but you would not, on my
9 understanding, countenance a contractual system which
10 had been created by statute; is that correct?
11 A. Correct. I think the easiest way to deal with this
12 point is to look at recommendation 1 of David Calcutt's
13 second report, which I've relied on here, when he,
14 I think -- and I do recall all the debates we had --
15 I think had rather lost patience with the response that
16 he'd received to his first report, which had been
17 a committee on privacy chaired by him, and in
18 paragraph 9 of that summary, at the start of his second
19 report, he concluded that:
20 "The government should now introduce a statutory
21 regime. A statutory press complaints tribunal would
22 need to have these functions and powers."
23 And I have he been going through those functions and
24 powers with one huge difference: I think these functions
25 and powers could be set up under contract without the
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1 need for legislation.
2 Q. There are 19 functions and powers, which range from
3 drawing up a code of practice, enquiring into
4 complaints, holding hearings, giving guidance, awarding
5 compensation, imposing fines, et cetera, et cetera.
6 That's correct, isn't it?
7 A. Yes.
8 Q. His preference, as you say, was for a statutory regime.
9 In terms of the vice which you're seeking to avoid,
10 which is an unacceptable impingement of on freedoms,
11 paragraph 3 of your witness statement, what is the
12 difference between Sir David Calcutt's statutory regime,
13 with the powers we see itemised here in paragraph 9 of
14 the second report, and the contractual regime which you
15 favour?
16 A. The difference is statute. What I'm doing is to set out
17 what Sir David concluded in his first report, and where
18 he had been dissatisfied with the response that he had
19 received, which had then led him to believe the only way
20 forward was through statute.
21 I'm seeking to lift what he would have wanted into
22 today's age, and I think it is perfectly achievable.
23 The environment of the time, though, was that it was not
24 possible for the press to come forward with such
25 a self-regulatory regime. And please, Mr Jay, bear in
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1 mind that I was part of those discussions which took
2 place, under colleagues in cabinet, to try and persuade
3 the new Commission, the Press Complaints Commission, to
4 move in the direction that is laid out here, and I think
5 there were a whole series of letters, no doubt which
6 will be revealed when at last we are allowed to see all
7 the internal letters and correspondence of the
8 administration, which -- I'm reminded that there were
9 challenges given to the press to do exactly what is now
10 set out in my statement, but they did not respond
11 positively.
12 I sense today there's a completely different
13 appetite for fundamental reform, and I'm anxious that we
14 should utilise this window of opportunity as quickly as
15 possible, to proceed in the way Sir David wanted and
16 I think the overwhelming majority of people now want,
17 which is proper, independent self-regulation of the
18 press.
19 Q. Of course, under your contractual system, you would
20 have, I think we would all agree, a regulator, properly
21 so-called. Would it be self-regulation, though,
22 Lord Hunt?
23 A. Yes.
24 Q. Can I just understand what the possible difficulties
25 might be. I'm only putting these forward as possible
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1 difficulties. Getting people to sign up on the dotted
2 line, Lord Hunt. We've called this the carrot or the
3 stick. It matters not --
4 A. Or both.
5 LORD JUSTICE LEVESON: That's neither a carrot nor a stick;
6 it's just getting them to sign up.
7 A. Yes, I agree. The contracts would arm the new regulator
8 with the necessary is investigative and enforcement
9 powers to investigate serious ethical breaches, which
10 the PCC has never possessed. And if I may add this --
11 MR JAY: Yes.
12 A. I think the PCC has been very unfairly criticised for
13 failing to exercise powers which it never had in the
14 first place.
15 LORD JUSTICE LEVESON: Well, it did have certain powers,
16 didn't it? We looked at them yesterday, in the articles
17 of association. They could have done a lot more.
18 A. Yes, I --
19 LORD JUSTICE LEVESON: I'm not taking this as an opportunity
20 to have a go at the PCC, but looking at some of the
21 powers in the articles of association, they could easily
22 have been construed to permit a great deal more. They
23 may not have been able to afford to do it. That's
24 a different point.
25 A. Sir, I'm not sure it is a question of resources. There
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1 was a reliance on correspondence, without the feeling
2 that there was power to demand the attendance of
3 witnesses, power to visit the premises under
4 investigation, to carry out proper, in-depth analysis of
5 the documentation, the emails, the computer records. It
6 would require a team and undoubtedly the new regulator
7 would have that power. I'm determined that it should.
8 I hope it would never have to be exercised, but it would
9 have that power.
10 All I'm saying is that this is in stark contrast to
11 the PCC, which certainly never felt it had that power,
12 and it would require an imaginative interpretation of
13 the articles to feel that it did.
14 LORD JUSTICE LEVESON: Well --
15 A. And it never felt it had that power.
16 MR JAY: Well, Lord Hunt, it's perhaps not necessary to go
17 there and try and construe article 53.1(a) again, but
18 what I'm concerned really is to address the future.
19 There are at least three issues I'd like to discuss.
20 It's getting people to the starting block issue and
21 forcing them into this system, which is the web of
22 contractual relationships. I think you would agree that
23 if there is a substantial newspaper group which is
24 outside the system, that damages the credibility of the
25 new body, whatever name it's given; is that correct?
84
1 A. Correct.
2 Q. So how are we going to get people to join up, Lord Hunt?
3 A. By asking them, and everyone I've asked so far, covering
4 virtually the whole range of publications, have said
5 that they are willing to agree to proceed in the way
6 I have set out.
7 Q. That includes Northern & Shell, presumably, does it?
8 A. Correct.
9 Q. Have you made it clear to Northern & Shell what all the
10 characteristics and attributes of this new body will be?
11 A. I have shared with them as much as I have shared with
12 everyone else.
13 Q. Is this right: that you are relying on the good faith,
14 the goodwill of all the potential participants, to
15 arrive at the signing ceremony on day one and
16 participate; is that correct?
17 A. Correct.
18 Q. Is there any additional incentive which one could put
19 forward or suggest which might make it even more
20 attractive for people to sign up?
21 A. I sense there is a willingness to accept a fresh start
22 and a new body. I did immediately call a meeting of all
23 the general counsel, who advise each of the
24 publications, and found that there was agreement around
25 the table that it was perfectly possible to reach
85
1 agreement. The abiding theme was that it should be
2 simple, short, easy to understand, and that one could
3 foresee exactly the sort of structure that I had in
4 mind.
5 In many ways I've approached this as I would
6 a client who comes with a problem, the problem being the
7 present structure does not work. The solution, which
8 lawyers seek to find, is an answer which will provide
9 the best structure, and I think with the help of all
10 those involved, it will be possible.
11 Q. Okay. On my understanding, the proposal entails
12 a five-year rolling contract. Presumably anybody who
13 wanted out would have to give five years' notice; is
14 that correct?
15 A. Yes. My error is that I'm always approaching it in
16 a positive way, but you're quite right. I have to think
17 of the consequences of anyone who, two years further
18 down the road, might find that they could no longer
19 support the structure, and I've been advised by those
20 I've consulted that the best way forward is to have
21 a rolling contract over a five-year period.
22 The sword of Damocles hanging over the whole
23 industry is, of course, the threat of state regulation.
24 If someone just unilaterally withdrew, for whatever
25 reason, a five-year period would be more than enough
86
1 time to provide the statutory underpinning that would be
2 necessary if you could never achieve consensus, but at
3 the present time, I'm seeking to put as positive
4 a construction on the discussions I've had as possible.
5 LORD JUSTICE LEVESON: That's entirely understandable,
6 Lord Hunt. You'll forgive me if I view the problem
7 through a rather wider spectrum of history, as well as
8 having the anxiety that you identify. As I again have
9 said a number of times, it is rather disturbing the
10 number of times since the last war that we've been in
11 a position are great calamity for the press, there has
12 been an Inquiry, everybody agrees something must happen
13 that is different, that is taken on board -- you don't
14 need me to carry on.
15 A. (Shakes head)
16 LORD JUSTICE LEVESON: Then disaster happens and everybody
17 starts again.
18 A. Sir, I think the difference, if there is sufficient
19 agreement to move forward now, is that there would, at
20 least, be a contract. I think there were some people
21 who felt there was almost an implied contract setting up
22 the Press Complaints Commission, but there wasn't.
23 Perhaps if we'd followed the Shawcross advice, there
24 would have been, but there wasn't.
25 I suppose in many ways -- am I wrong in thinking the
87
1 solution now is to learn the lessons of history and make
2 sure that there is a proper contract in place?
3 LORD JUSTICE LEVESON: Well, make sure there is something in
4 place. What you have added to the equation by your
5 evidence, which I frankly concede has taken me somewhat
6 by surprise, is the appetite that you have identified in
7 your parliamentary colleagues to take the opportunity to
8 impose restrictions upon the press which are
9 inconsistent with freedom of expression. That's what
10 you've given me this afternoon. Have I understood it
11 correctly?
12 A. Sir, there have been a number of occasions on which
13 private members have put forward private members' bills.
14 If one looks at those bills, they would have imposed
15 restrictions on freedom of expression.
16 Now, Lord Soley, who I think has now written a book
17 about it -- and I've consulted Clive Soley -- he has
18 very strong views about the need for some mechanism of
19 that sort, and there are many others, too. I don't
20 think their prime intention is to restrict freedom of
21 expression, but in my view it would be a consequence.
22 LORD JUSTICE LEVESON: Mm.
23 MR JAY: Okay, Lord Hunt. May I deal with the contract?
24 Imagine everybody is in the contract, either because
25 they're willing to sign up or some carrot has been
88
1 devised to ensure that they do. There are three
2 possible issues which arise.
3 If the new body imposes a substantial fine -- let us
4 imagine the proprietor doesn't like the fine and refuses
5 to pay -- presumably your advice is an order for
6 specific performance can be obtained at the instance of
7 the new successor body against the recalcitrant
8 newspaper body; is that correct?
9 A. Well, the fine would be issued by the standards and
10 compliance arm of the new regulator only if there was
11 a serious or systemic breach of standards. The level of
12 fine, would, of course, be proportionate and would
13 depend on a number of factors such as the seriousness of
14 the breach and the size of the organisation.
15 One way of doing that would be for the fine to be
16 added to the paper's levy for the following year's
17 membership. That was an idea put forward in one of the
18 meetings I've held.
19 There is, though, I stress again, an appetite to
20 proceed with this form of self-regulation, which
21 I warmly applaud, and I do think -- and perhaps I should
22 keep stressing this -- I think this Inquiry has opened
23 up a huge opportunity and I'm keen to use the momentum
24 that this Inquiry has provided to press on with reform.
25 MR JAY: Some might say -- but I suppose that person would
89
1 have to be a cynic -- that the appetite you are
2 referring to is simply a fear that this Inquiry might
3 recommend something which the press would regard as much
4 worse, namely a form of statutory regulation. Would
5 that be too cynical a view?
6 A. Having been in Parliament 35 years, I'm not sure
7 I recognise cynicism any more.
8 Q. Okay, Lord Hunt. I am concerned, though, with the
9 mechanics. You've got a fine. There's no means of
10 challenging the fine. It's fair and proportionate. Any
11 appeal right has been exhausted.
12 A. Yes.
13 Q. The proprietor doesn't pay. Is it your advice that
14 specific performance can be obtained by the new
15 successor body against the proprietor or not?
16 A. Yes. I'm told that it would be available, but that is
17 for the judiciary presented with such an application.
18 It would also depend very much on the wording of the
19 contract.
20 Q. Naturally it would, but if the contract were worded in
21 the right way, is it your advice, from Queen's Counsel,
22 that if there is no difficulty, an order for specific
23 performance would be ordered by the High Court?
24 A. Correct.
25 Q. Imagine then this scenario: the proprietor is now
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1 particularly disgruntled for whatever reason and wants
2 out and refuses to pay the subscription, and what's
3 more, refuses to submit to the jurisdiction of the new
4 successor body, in other words, doesn't accept that it
5 has any power over complaints arising against its
6 newspapers. Can an order for specific performance be
7 obtained, on your advice, in that sort of situation?
8 A. Or on a change of ownership.
9 Q. Yes.
10 A. A similar situation.
11 The advice I've received is that much would depend
12 on the way in which the contract was worded, but
13 provided the right words were used, the answer to your
14 question is yes.
15 Q. I suppose that might collapse into this question: that
16 once the newspapers understand that the wording which
17 they're asked to sign would enable, in the case of
18 breach, the High Court to order specific performance
19 against them, some newspapers might be less keen to sign
20 up. Does that not follow?
21 A. No, I don't think it does, because there is goodwill, at
22 the moment, amongst all those to whom I've spoken, to
23 set up such a system. The important thing is to make
24 sure that the terms on which the new regulator is
25 established are sufficiently wide to meet the range of
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1 problems, some of which you've outlined, and there are
2 many others, too, which we would have to make sure were
3 covered.
4 Q. Finally, slightly more of a condite(?) point on judicial
5 review, because the previous witness mentioned it.
6 Presumably your advice is that if there were a web of
7 contractual relationships binding newspaper groups to
8 this new regulator, this new regulator would clearly be
9 subject to judicial review, wouldn't it?
10 A. Judicial review has become now so commonplace. I've had
11 so many of my decisions as a minister challenged under
12 judicial review in a way that would never have taken
13 place many years ago. So I think almost certainly yes,
14 but whether or not the decision would be to intervene in
15 the rules of a self-regulatory body, that's still really
16 something which is uncertain.
17 Q. I would agree with that, but I'm dealing more with
18 points of principle. My understanding of the law in
19 quite old Court of Appeal decisions is that
20 a contractual regulator would be amenable to judicial
21 review. I think it's a decision of Lord Donaldson in
22 a case called Datafin. It may well be the case, but I'd
23 like to think about this further, that the PCC is
24 already amenable to judicial review, even without
25 a contract, but it's not necessary to express
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1 a concluded view on that.
2 It deals with an objection Lord Grade raised to
3 statutory regulation, that there is no difference, for
4 judicial review purposes, between a statutory regulator
5 and a contractual regulator, is there?
6 A. Well, I thought I'd argued successfully on two
7 occasions, on behalf of an association of members
8 creating a body, that it was not capable of judicial
9 review, because it wasn't contained in statute. I think
10 I probably need to reflect on the stare decisis around
11 this issue. Please don't rely on me to give definitive
12 advice. I think I'd probably come to you for that.
13 Q. Yes, and I would ask for a bit of time to ponder the
14 jurisprudence you refer to, and I haven't had the time
15 in the last three or four days to do that, Lord Hunt.
16 Can I come back to statutory regulation? I can see
17 the philosophical objection you put forward, and I can
18 see that you're coming to us with, if I may say so,
19 lengthy experience of Parliament, both in the House of
20 Commons and the House of Lords, and you fear that some
21 of your colleagues may take this opportunity to settle
22 old scores but in any event seek to muzzle or curb the
23 press because that would be their agenda.
24 Subject to that concern, there is no difference in
25 substance, is there, between the contractual system
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1 which are you advocating and a system which has a
2 statutory underpinning but otherwise has exactly the
3 same powers as the system you're advocating; would you
4 agree?
5 A. I think I'd rather want to reword your question.
6 Q. Fair enough.
7 A. But I'm not allowed to do that.
8 Q. You can, Lord Hunt. I'm going to permit you to do that.
9 A. But what I think is that Parliament, when it is
10 presented with a bill, believes there to be a problem
11 which it is necessary to solve. Now, the government may
12 present it in a limited way, but Parliament has the
13 right to proceed in the way that it thinks fit, and
14 I think on an issue like this, there would be widespread
15 belief that there would be a better way through
16 a different form of regulation.
17 Self-regulation, though, has a huge advantage, in
18 that it is capable of change, adapting to circumstances.
19 Changing the code, improving the code, strengthening the
20 code, strengthening the system in a new way,
21 particularly faced with online publications, the need to
22 extend the sphere. That is perfectly possible without
23 another bill, another Act of Parliament.
24 As soon as you get into statute, you're into an
25 inflexible system. I think self-regulation is so much
94
1 the better because it can adapt to the challenge of
2 change.
3 Q. But even with your contractual system, in order to adapt
4 to the challenge of change, you would have to amend the
5 contract, wouldn't you?
6 A. Not necessarily, because you, I hope, are going to
7 empower a new regulator with two columns: standards and
8 compliance, and complaints and mediation. I would want
9 to see the contract allow for a further arm, if it is
10 right to proceed down that road, but back to the new
11 regulator. The contract would give the new regulator
12 power to adapt to the challenge of change. That is the
13 key. So you wouldn't need a new Act of Parliament; you
14 would need the new body to feel that it had to proceed
15 in that direction within the powers given to it by the
16 contract.
17 Q. Yes, but an Act of Parliament which was not prescriptive
18 in the sense of the standards which were to be imposed,
19 moreover did seek to enshrine certain constitutional
20 principles in relation to the freedom of the press --
21 that Act of Parliament and the regulatory body which
22 would spring from it would, it might be argued, be
23 exactly as flexible and exactly as independent as the
24 contractual mechanism that you are advocating, isn't
25 that right?
95
1 A. Well, over the years I've seen so much legislation that
2 has been introduced into Parliament, needed amendment in
3 both houses, last-minute amendments, and then, after the
4 legislation has passed and become an Act, received royal
5 assent. Suddenly problems arise which were not covered
6 by the legislation. New situations arise.
7 What I'm seeking through self-regulation is to
8 establish a structure that can easily, easily, by
9 agreement and by consensus, be established and be
10 adapted to the changing environment. I think that's the
11 great advantage. It may work. I believe it will work.
12 But if it didn't work, yes, you can always go back to
13 the --
14 Q. Sword of Damocles.
15 A. -- the sword of Damocles and establish a statutory
16 framework. But the press already operate within a huge
17 statutory back-up system.
18 Q. Yes, I understand. It's the same sword of Damocles,
19 though, that Sir David Calcutt left hanging over the
20 press in 1993, isn't it?
21 A. Yes, but I think in many ways the structure that I am
22 hoping to establish would meet his wishes and
23 expectations, which at the time -- I do know for a fact
24 he was very, very disappointed that there wasn't such
25 a positive reaction then, but I believe we have that
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1 positive reaction now.
2 LORD JUSTICE LEVESON: Is this time-limited, Lord Hunt?
3 There is actually a second sword of Damocles here, not
4 merely the possibility of doing something in the future,
5 but: "Unless we get this signed up quite quickly, then
6 this fellow called Leveson is going to come and make it
7 much worse for us"? I don't have that power, actually,
8 because I would only make recommendations in any event,
9 but is there something to that effect about this, too?
10 A. No. I think you have opened the window of opportunity,
11 sir. I'd be keen to use the momentum that your Inquiry
12 has provided to press on with reform.
13 LORD JUSTICE LEVESON: Yes, well, I entirely agree with
14 that, and as I have, I think, already said to you this
15 afternoon, suggested just that possibility as long ago
16 as last September/October. So I am not at all
17 concerned -- in fact, I positively encourage the work
18 that you and those who are supporting you have done to
19 try to find a way through, but I have some concerns,
20 which I would like to be thought about as well. But
21 I'll wait until Mr Jay concludes.
22 MR JAY: Two final questions, Lord Hunt. It goes without
23 saying -- but this would be true of contractual system
24 and a statutory system -- that more money would be
25 needed, wouldn't it, to enable the new regulator or the
97
1 renamed regulator to discharge its functions? That's
2 right, isn't it?
3 A. No. I don't think the proposed new model is going to be
4 much more expensive. I don't think it can possibly be.
5 The newspaper industry is evolving all the time and it's
6 a simple fact of life, as my parliamentary colleague
7 Lord Grade pointed out, that printed newspapers are in
8 decline, especially at the regional and local levels,
9 and I'm determined that a regulator that deals with
10 complaints, but also polices internal self-regulation,
11 will not grow into an intolerably expensive burden on
12 the industry, although there will be some transitional
13 cost during the process of reform, but involving best
14 practice, will and must see a higher proportion of
15 alleged code breaches dealt with quickly, efficiently
16 and internally by the offending publications themselves.
17 There's huge opportunity here for the industry to
18 regulate itself in a way that perhaps it hasn't focused
19 on sufficiently well in the past.
20 Q. I've been asked to put to you this question. It goes,
21 I suppose, to the point which someone put in these
22 terms: "cosy cabal", if you can forgive me for put it in
23 this way.
24 A. Yes.
25 Q. It hasn't escaped anybody's notice that the history of
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1 the PCC has been rather dominated by Conservative peers.
2 That remains the position. It remains the position in
3 relation to PressBoF. Is that an accident? Does
4 anything flow from that, Lord Black? Lord Hunt, pardon
5 me.
6 A. I'm just absorbing your Freudian slip.
7 May I just say that I hope my experience with the
8 press is not guiding me here, because it would be in the
9 opposite direction to that which you've set out.
10 I don't think there is anyone who's appeared as
11 a witness before you who has had the sort of
12 vilification I have had in the press in the past.
13 I think it was Edward Pierce who wrote that magnificent
14 article which my children so love: "David Hunt is
15 a sponge, but even a sponge can be useful." And I just
16 give you that as one example. I have had more than my
17 fair share of derision from the press, but my goodness,
18 although I disagree with them, I'd fight to the death
19 for their right to express those views. That's always
20 been my view.
21 I mustn't get too deep about this, but in the early
22 part of my career, it was certain newspapers who
23 supported me when I was in my early 20s, when I attacked
24 Enoch Powell on the issue of race and got sacked by my
25 local constituency with my parliamentary career at an
99
1 end, and it was one newspaper in particular who said --
2 and wrote an editorial, which was quite brave and
3 courageous of them at the time, saying, "This young man
4 will go far. He need not worry."
5 Well, I was very worried, but not after I read that
6 editorial. So I think the press is a mixture,
7 I suppose, but the fact it's a free press is probably
8 our nation's greatest asset.
9 MR JAY: Okay, well, forgive me for asking the question.
10 I'm grateful for your answer, Lord Hunt. Thank you.
11 A. Thank you.
12 LORD JUSTICE LEVESON: Let me just become slightly less
13 over-arching. A contract may bind the press
14 institutions that enter into the contract but says
15 absolutely nothing to the public. So how do you see the
16 concept of your ability, for example, to award
17 compensation as fitting with the right of a member of
18 the public to pursue litigation?
19 A. It would not be possible under the Human Rights Act to
20 debar someone.
21 LORD JUSTICE LEVESON: That's the point.
22 A. But --
23 LORD JUSTICE LEVESON: Unless you got a system that is
24 Article 6-compliant.
25 A. Yes, and I carry with me everywhere the Human Rights Act
100
1 because it is so critical and crucial here.
2 How the public interest would be dealt with -- the
3 entire system would have to be founded on a generally
4 accepted definition of the public interest. The entire
5 system has to be based on that, embodied in the
6 contracts and in the code. That's the only way forward.
7 It has to be a system judged against everything that's
8 happened in the past. Would it have stopped these
9 situations arising? That's been in the forefront of my
10 mind. What could this new regulator are done to have
11 stopped some of the evil practices which we've heard
12 about and which this Inquiry has highlighted?
13 LORD JUSTICE LEVESON: So it wouldn't stop a member of the
14 public pursuing litigation. What do you say to the line
15 that you have to choose? "Either you come to the PCC
16 mark 1 or you had go to court. You can't do both."
17 A. Two responses. The financial services ombudsman says if
18 you come to the ombudsman, then you are not bound by our
19 decision but the company that you're complaining against
20 is. So you could have a system where the press are
21 bound by the decision, but the member of the public --
22 LORD JUSTICE LEVESON: You certainly could, but I don't know
23 whether your thinking has progressed that far with your
24 constituency.
25 A. I sense that this is a real opportunity for the third
101
1 column. I would want the complaints and mediation arm
2 to be fast, fair and free, so that people get immediate
3 response where they have failed to get that response
4 from the newspaper or magazine.
5 The third column, I think, is the area which
6 everyone has wrestled with, and I've tried to do the
7 same. I haven't reached any conclusions, and I'm
8 listening very carefully, sir, to the evidence at this
9 Inquiry. I sense there must be a better way of
10 mediating, of dealing with complaints, of awarding
11 compensation, but I can't quite see my way through there
12 yet, and I think if you were able to highlight the right
13 way forward here, I would certainly want the contracts
14 to be able to absorb such a third column, if that were
15 your conclusion.
16 LORD JUSTICE LEVESON: Well, you've heard me ask a number of
17 witnesses about this three-tiered approach: complaints,
18 standards and some form of arbitral system. But the
19 difficulty with your contractual approach will be to rob
20 the system of the opportunity of requiring some form of
21 straightforward arbitration.
22 I particularly raised this with Lionel Barber, the
23 editor of the Financial Times, who was at the time
24 expressing concern about the ability of the extremely
25 wealthy effectively to overwhelm even the Financial
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1 Times with the risk of litigation that would be
2 inordinately expensive, and the concern about making it
3 entirely contractually based is that the extremely
4 wealthy could not be compelled to go down that route but
5 would be able to pursue whatever remedy it sought,
6 unless there was some form of arbitral system that was
7 Article 6-compliant but that didn't give the opportunity
8 simply to avoid it.
9 A. Sir, I think this is such an important area. I don't
10 have an easy and quick reply but I have spent some time
11 looking through the Defamation Act 2009, the Irish
12 Defamation Act.
13 LORD JUSTICE LEVESON: Yes, I was about to say I didn't
14 think we had one.
15 A. No, we shall have Defamation Act 2012.
16 Section 26 says -- actually lays a statutory test on
17 the extent to which the publisher of the periodical
18 adhered to standards equivalent to the standards laid
19 down in effect by the Irish Press Council.
20 So when such a case reached the courts, in
21 considering it, the judiciary would want to be assured
22 that the individual concerned had utilised the services
23 of the complaints and mediation service.
24 LORD JUSTICE LEVESON: That's fine, but that does actually
25 mean, doesn't it, that this body is going to have to be
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1 recognised in some way in statutory form.
2 A. But the press is already -- section 12, freedom of
3 expression.
4 LORD JUSTICE LEVESON: Well --
5 A. It's already -- in this essential law for journalists --
6 I'm amazed that journalists feel free, because there is
7 so much restriction in the criminal law and the civil
8 law already in place. What we're talking about is just
9 adding on to that, not creating a statutory regulator.
10 LORD JUSTICE LEVESON: I understand that, and I am just
11 trying to test it, because one of the carrots that I've
12 spoken about is the ability, in a Reynolds-type defence,
13 to rely upon membership of and compliance with the rules
14 set out by a regulator, but that would then require
15 a definition of the regulator to be contained within the
16 statutory framework, would it not?
17 A. Yes.
18 LORD JUSTICE LEVESON: The advantage of a contract is that
19 ultimately a particular media organisation may or may
20 not sign up. There is the ability, ultimately, to
21 withdraw, however couched --
22 A. Yes.
23 LORD JUSTICE LEVESON: -- with restrictions that is. If one
24 created an Irish-type model that recognised a regulator
25 that did certain things, you could provide that it had
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1 to be set up so that it was independent, that it --
2 A. Yes.
3 LORD JUSTICE LEVESON: -- provided certain remedies, which
4 I think the Irish model does.
5 A. Yes.
6 LORD JUSTICE LEVESON: Then presumably it would be
7 sufficient for the legislation to identify the model and
8 to leave the regulator to get on with the task of
9 organising codes, practices and the rest of it.
10 Now, on that basis, would it not also be
11 advantageous to allow that regulator to set up an
12 arbitral system, which, if not mandated, could be,
13 rather as you've identified the Irish model does,
14 directive of those who wish to complain?
15 A. Yes. It's -- it is, of course, in the reference that
16 I've made to the Irish Press Council, only within the
17 Defamation Act 2009. There is no other sort of
18 statutory, regulatory structure laid out in any other
19 Irish Act, as I understand it. I'm exploring this
20 further at the present time.
21 But you are quite right, because in schedule 2 it
22 sets out minimum requirements in respect of the Press
23 Council, and it may well be this third column would need
24 to satisfy those minimum requirements. But it doesn't
25 in any way mean we will have to wait, because there is
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1 already, I would regard, an unprecedented consensus in
2 favour of the proposed new architecture uniting the
3 political parties, my colleagues on the PCC and, most
4 important of all, the industry itself. That's why
5 I think we have a unique historic opportunity.
6 Once we've established this new structure, we can
7 build on it. We can gain the respect of the public
8 through the exercise, for the first time ever, of proper
9 regulatory functions with the power to investigate,
10 et cetera, and I think this could set a precedent for
11 a future course of action on which -- you may well, sir,
12 have some vitally important views on how we could build
13 on this structure, but we need a structure on which to
14 build which does not rely on the Press Regulation Act.
15 LORD JUSTICE LEVESON: Yes, I understand that, clearly, and
16 you have clearly in mind also the need to satisfy the
17 public concern that has been expressed so vocally to me
18 and indeed otherwise.
19 We're not going to solve this this afternoon, but
20 what I am very keen that you should do is to keep the
21 Inquiry informed about the progress that you are making
22 and where the sticking points are, if there are any, and
23 to maintain the momentum that you feel you can maintain
24 on the basis that you should expect that I may very well
25 request that you return to allow into the public domain
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1 the further developments that you have agreed or that
2 you're able to pursue, in order the better to inform my
3 consideration of the future.
4 A. (Nods head)
5 LORD JUSTICE LEVESON: In other words, to such extent as you
6 can use -- I won't say the sword, that puts it far too
7 high -- the small dagger that I hold, knowing of the
8 concerns that I have and the principles that I have
9 hinted at -- more than hinted at, made clear that I feel
10 strongly about -- then I have no difficulty with that.
11 A. (Nods head)
12 LORD JUSTICE LEVESON: I think that's probably as far as we
13 can go this afternoon.
14 A. Yes, sir. I very much welcome your words. I think --
15 I think you, in this Inquiry, have highlighted really
16 what has been a great shame in the past: bad journalism.
17 But the overwhelming majority of journalists I know just
18 wish we could eradicate what goes on at that level, and
19 what I'm really talking about -- what I've sensed in all
20 my discussions is that there is a willingness to embrace
21 a profound and positive change in culture running right
22 across the whole industry, and you are giving us an
23 unrivalled opportunity to meet the need that is so
24 pressing.
25 LORD JUSTICE LEVESON: Lord Hunt, I hope that is so. I have
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1 never shied away from saying that by far the greatest
2 proportion of journalistic activity in this country has
3 been to the very great benefit of the country, and
4 I have said that both in relation to the regional press
5 and also to national titles, but it would be a mistake
6 to think that my concern is limited to phone hacking, or
7 that there aren't other practices which I have heard
8 about which do not cause me real anxiety.
9 A. Mm.
10 LORD JUSTICE LEVESON: If the industry is taking advantage
11 of the time that the Inquiry takes to address these
12 concerns, nobody will be more pleased than I will be to
13 be able to feel progress has been made and that
14 a solution has been reached which can be embraced by the
15 industry rather than fought over for the next five years
16 to come.
17 But it does have to cope with the problems, because
18 those organisations and people who've spoken about those
19 problems have a legitimate interest in ensuring that
20 they haven't gone through the pain of exposing
21 themselves only to find that nothing really has changed.
22 I hope you agree that that's not unfair.
23 A. Well, if I just say, sir, that my objective will be nil
24 satis nisi optimum, which you may recall is the motto of
25 a famous Premier League football club. It's a clarion
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1 call: to be satisfied by nothing but the best.
2 LORD JUSTICE LEVESON: Well, that's easy to say; not
3 necessarily straightforward to achieve.
4 A. Thank you.
5 MR JAY: Thank you.
6 LORD JUSTICE LEVESON: Lord Hunt, thank you very much
7 indeed.
8 A. Thank you.
9 MR JAY: May I raise a tiny different topic before you rise?
10 LORD JUSTICE LEVESON: Yes.
11 MR JAY: Evidence of Mr Thomas last week. He wishes to make
12 some very minor corrections and clarifications.
13 A letter of 24 January will therefore be put on the
14 website in the usual way, setting out those matters.
15 LORD JUSTICE LEVESON: Yes, I've read the letter. I agree
16 with that approach.
17 Thank you very much indeed. Tomorrow morning,
18 10 o'clock.
19 (5.04 pm)
20 (The hearing adjourned until 10 o'clock the following day)
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