Wednesday, 28 September 2011 (9.30 am) Right. Yes. Mr Caplan, we are here on your application so let's start. I received your written submissions, thank you very much, and I think they have been circulated to those of the other core participants who are here. I don't know how many are. Mr Sherborne I am told is here. Yes. And counsel for the Metropolitan Police. Yes. Thank you. None of the other media core participants; is that right? MS PHILLIPS: I am here on behalf of The Guardian. On behalf of The Guardian. Thank you very much indeed. Right. Application by MR CAPLAN Thank you. Sir, may I just begin by thanking you very much for agreeing to be here this morning to receive our oral representations, and can I begin by first of all assuring you I will be as brief as I can. Secondly, I am sure you will understand that Associated Newspapers, whom I represent, do not in any way wish to be confrontational with the Inquiry, but you will also understand of course -- The letters didn't quite read like that. Well, they raise issues of concern, can I put it like that. Yes. You will understand, sir, of course, that your Terms of Reference raise very important issues for the future conduct, regulation and ownership of the newspaper industry, and we have raised in correspondence with the Inquiry, I think since the end of August, several concerns regarding the proposed procedures to be adopted and regarding the role of the six assessors who have been appointed. May I say that with regard to our submissions which, as you say, have been circulated to core participants and perhaps other interested parties, we have been informed that the Newspaper Society, the Newspaper Publishers Association, Trinity Mirror and The Guardian support our representations with regard to our application for additional assessors and also with regard to the need for clarification regarding the role and function of the assessors. So they are in support of what I have submitted in writing and am briefly about to elaborate this morning. Fundamental to our concerns, of course, is the difference, of which you will be well aware, under the Inquiries Act, of an Inquiry by Chairman alone, sitting if necessary with assessors to assist him in areas of individual expertise, that's one thing, and that is such an Inquiry here; alternatively, Inquiry by Chairman sitting with panellists who are appointed having regard in particular to sections 8 and 9 of the Inquiries Act, where the Ministers have to be alive to the need for balance of the Panel and to ensure that the Panel has appropriate expertise to investigate the issues raised by the Terms of Reference. In those circumstances, quite clearly, the panellists sit with the Chairman and make findings of fact and play a full role in the Inquiry. If one goes the route of a Chairman alone, being assisted by assessors in their particular areas of expertise, then in our submission the Inquiries Act is clear and the assessors play only an advisory and limited role. I say "limited"; limited to their field of expertise or knowledge for which they have been drafted in to the Inquiry. Section 11, which provides for the appointment of assessors, makes it clear that an assessor comes in because he has the expertise that makes him a suitable person to provide assistance. Now, for whatever reason, sir, Ministers have decided that your Inquiry should not, although it raises very far reaching and important issues, be an Inquiry with panellists who will share the burden with you and assist in the final determination and findings, it should be an Inquiry by you alone, assisted in particular pockets of expertise by assessors. That is an important distinction, in our respectful submission, to bear in mind. It is not one, with respect, which we believe has clearly always been at the forefront of Government or, if we may respectfully say so, the Inquiry itself, and we have referred in our skeleton argument to, for example, the Downing Street website, where the Prime Minister announced today the six Panel members who will assist the judge -- That doesn't really take us anywhere, because the fact is that, as was made very very clear, the members are appointed under section 11 of the Act, as you have yourself said. Yes. Whether one has used the word "panellist", and I've called them a panel of assessors, and if that has caused confusion it shouldn't, because the terms of their appointment are on the web and are clear for all to see. Yes. The terminology has been sometimes -- "panellists" may have caused confusion. May I refer to another matter which clearly did cause concern, and that is in the first public statement on 28 July, your Lordship did say that: "I intend each of the panellists/assessors should have a central role in the work and that the final report will be a collaborative effort. I will strive for unanimity. If any particular recommendation is not unanimous, I shall make the contrary view clear." Now, although clearly you have never abrogated and would never abrogate from the personal responsibility you have to make your own findings, our concern has been heightened by the fact that the assessors were to have or are to have a central role in the work of the Inquiry and the report will be a collaborative effort and that there will be a striving for unanimity. If assessors, as we contend, have purely an advisory role, limited to their areas of expertise, then there is no purpose for the concept of unanimity or, indeed, for a collaborative discussion about the findings. I'm not so sure I agree with that. The conclusion will be mine and mine alone, but I am very conscious that I step into an area, I hope a profession, which is not the one which I have spent 40 years of my life in and, for example, it is critical that I obtain advice on those who have made their lives in this area, not least because I would be keen to understand any flaws in thinking that I might have because of my lack of experience. So when I talk about a collaborative effort, I am not suggesting that I will sit down and say, "Now, what can we do about this?" across the range. I will use the expertise of the assessors in order to check whether my thinking is fundamentally flawed. When I say that I will publish opposing views, that is actually to make it clear to the world where I am different from others who have expertise. I won't be seeking the expertise of the ex-Chief Constable of the West Midlands Police on ethical considerations affecting the press, but I certainly shall in relation to the relationships between the police and the press. Now, I don't see that that in any way contradicts or undermines the position of assessors or my position within the meaning of the Act. Sir, may I just focus on this issue for a minute. Striving for unanimity with the assessors is not a course which, respectfully, we suggest is necessary or, indeed, within their role as advising within very particular areas. Indeed, we now have an assessors' protocol with which we do largely agree, if I may respectfully say so, which we received on Monday night, with the one exception. But the important point -- I am anxious, obviously, because of the issues at stake here and before the Inquiry progresses too far, that we've had the opportunity to put our interpretation of an assessor's role under the Act. Of course, panellists, as I don't think there's any dispute, have a very different function to play. Of course they have, because panellists are judges. In other words, if these six assessors had been appointed panellists, you would be appearing in front of seven judges, each of whom, presumably, would have a full vote and my vote would be neither more nor less valid than anybody else's. That may or may not be so, I have not looked at this, but that's not where we are. If I may just briefly pursue this distinction for one further moment. The reason, of course, that panellists are entitled to play a greater role is, first of all, because before they are appointed the Minister has to have regard to their expertise, of course, and to a balance within the Panel. As far as assessors are concerned, they have no consideration of impartiality; of course, it's not necessary: there's no question of balance, it's not a statutory concept that applies to assessors; they are merely there to provide expert assistance within their particular areas. Our concern is -- and it goes to the point I'm making -- that if assessors are not constrained within their limited role of advising within their specific areas of expertise, then there is a risk, obviously, that if they have a partial view or anything else, that it will filter into the Inquiry and it is outside of the function of an assessor. I would be very interested to know whether it's common ground that assessors do not have to bring any view of impartiality into their work. In that regard, may I just refer you back then to section 11, obviously which is the determining provision as far as the appointment of assessors are concerned. It is 11, subsection (4): "A person may be appointed as an assessor only if it appears to the Minister or the Chairman, as the case requires, that he has expertise that makes him a suitable person to provide assistance to the Inquiry Panel." And I mention the point that if one was a panellist, which is somebody who is participating in findings of fact, then of course section 9 will apply. I understand that. But if you are right in your construction that the assessors do not have to be in any sense -- that they may be entirely partial, it would have been open to them or to me to appoint, for example, Mr Mulcaire. He has expertise. That can't be right, with respect. What is right, it's a proposition which with respect is quite clear, is that assessors are people who come in not as principal participants or fact-finders, because they have a particular area of expertise that will assist the Chairman which is outwith his own expertise or experience. I agree, and I can get expertise in different ways. This is indeed what Sir William Gage did in relation to Baha Mousa. Yes. What he did was say, "Well, I won't appoint assessors, I will obtain the material I need through evidence", and I have made it extremely clear that that's what I intend to do as well. Yes. I think the point I'm trying to make -- and we've slightly looked at other issues -- is that assessors have a particular role to assist you with their particular area of expertise, and should not be used for a wider role which does not deploy the expertise for which they have been chosen to assist. It's therefore necessary, and as I understand your protocol now, your assessors' protocol, which has been adopted from the Mid-Staffordshire Hospital Inquiry, that accords with the submission I am making. So I don't think we are at issue. No, I don't think we are, although you do challenge one aspect of the protocol -- Yes. I will come to that, if I may. -- in relation to the seminars, which I'm not so sure we will agree about. No. But while we are talking about partiality or impartiality, I am concerned about appendix 1 to your skeleton argument which mounts an argument about one of the panellists, Sir David Bell, which seems to imply that it is not appropriate for him to be participating in any capacity other than perhaps as a witness in the Inquiry. No. That's not the implication. Can I come to that in a minute because it is a separate topic -- It's not entirely separate. I am going to address it. There are three issues I need to deal with firstly. First of all, the purpose of our application and our written submissions to you were these: Firstly, to clarify the role of the assessors. I think, if I may say so, with the one exception your assessors' protocol has now done that and does restrict the role of the assessors to areas within their expertise, and they will only be called on to carry out acts and duties so far as it is within their expertise. That is, as I understand, the assessors' protocol which we received on Monday. Yes. There is one dispute with regard to that protocol, which is the one that your Lordship has just mentioned, and that is I think it's paragraph 3(b) which concerns whether or not an assessor should be called on to chair either the whole or a part of a seminar. In our respectful submission, that is a passage from the protocol which should be deleted and we do not, respectfully, support a protocol which delegates to assessors the role of chairing a seminar, unless -- may I just complete -- unless, of course, their function in doing so is to call upon a particular area of their expertise which makes it necessary or desirable that they should fulfil that function. That's exactly the point. I could have asked the editor-in-chief of your clients to chair a seminar. What I wanted to do by the seminars -- and I made this clear, I think at the end of July -- was to encourage a discussion; to start the ball rolling so that people could understand the broad context of this Inquiry. What I said was this: "I intend to hold a series of seminars in October so that we can focus on the perspective of all those involved. These seminars will include among other topics the law, the ethics of journalism, the practice and pressures of investigative journalism, both from the broadsheet and tabloid perspective and issues of regulation, all in the context of supporting the integrity, freedom and independence of the press whilst ensuring the highest ethical and professional standards. "At some stage there needs to be a discussion of what amounts to the public good, to what extent the public interests should be taken into account by whom. I hope that an appropriate cross section of the entire profession will be involved in each discussion, their purpose being to ensure the Inquiry can begin to concentrate on the principal concerns." What I really want to do is to use that not as evidence -- the evidence-gathering process will be very different; it will be formal and the evidence will be on oath -- but then to use the outcome of the seminar to encourage others who won't be called to give evidence, because there must be a limit, not least because of the time of the Inquiry, and also the public to provide evidence, doubtless it's unlikely to be called before me but it will be part of the record, so that we have engaged in the debate. The purpose of the seminar, therefore, is to try to get simply an expression of balance of views. It's not evidence, although it will be part of the record of the Inquiry. The expertise of the chairs will make sure that there's a balance. Now, I don't know who everybody represents and their respective views, but the experts in the field will know, which is why they have been chosen as they have been chosen. As I say, I could have asked Mr Dacre to chair a seminar. I did ask him to participate. Unfortunately, on 6th October he cannot, and I am waiting to hear from him about the 12th. I understand. But the purpose of the chair is to ensure the balance that will come from a knowledge of the area. So it is relying on their expertise. May I just take you to the assessors' protocol. Yes. Paragraph 2, if I may respectfully say so, is simply what I have been submitting to you this morning: "An assessor will assist the Chairman in dealing with any matter in which the assessor has expertise." Yes. One goes through the protocol. One can see that there are other specific tasks where you might ask an assessor to do something on any matter relevant to the Inquiry within the expertise of the assessor. The only point I am making is that that as a guiding principle is the one for which we contend, and reflects the limited role of assessors under the Act. But if they are being asked to chair a seminar, which is a principal role, we would suggest, as opposed to an advisory role, unless the subject matter of that seminar is specifically within the expertise of the assessor, it's something which should not be asked of an assessor because it is outside his role, outside the purpose of his being asked to assist you by reason of his expertise, and simply to say that to chair the whole or part of any seminar is in conflict, we will respectfully suggest, with the guiding principle, which is right, in paragraph 2. That is our submission. I don't think I can make it any more -- I understand the point. I'd need to think about it. If one reads into 3(b) "the part of any seminar which falls within the area of their expertise", that copes with your point, doesn't it? I think we've put in our written submissions to you that one could envisage a technical inquiry where, for example, taking an extreme, you could have scientific evidence, and for the discussion to be meaningful it would be necessary and desirable that the assessor with that particular field of knowledge chaired the discussions of others. That may be an extreme example; there may be examples which are less extreme. But if it falls within his expertise, then I respectfully agree. But I'm sure you agree that it would be important in a seminar to make sure the different sections of those people who are interested in the area that are the subject of the seminar have the opportunity to speak, albeit briefly. It's merely to start the debate. No disagreement. Right. It is simply that we are anxious that the role of the assessors and any, I hope misconceived, creeping tendency that they will perform tasks outside of their expertise, which is the reason, of course -- I hope what I've said this morning does something to reassure you and your clients, and maybe when I write a judgment, as I shall, following this hearing I shall elaborate in such a way that ensures that I retain their confidence, which I hope follows from the fact that each of the media groups have expressed a wish to help me. Yes. Might I just suggest, in the context of any judgment, that I make this submission: on the occasions obviously that assessors are asked to perform specific roles, we would respectfully suggest that consideration is given to the area of expertise which is going to be deployed by them in carrying out those roles, in accordance with paragraph 2, and that on each occasion, as I say, that they are asked to do something, that test is applied, that consideration is considered. But the whole point I want from the seminars is balance. I want to get the whole picture. I fear that rather more attention is being paid to the impact of these seminars than I intended. The purpose of the seminars is merely to start the discussion, to get out the views. Indeed, you ought to be aware that I have been invited in the last three months to lots of seminars in which different organs of the press have been debating the issues that the Prime Minister spoke about. My first reaction, to the first invitation, was that that would be a rather good idea, I actually then decided, as I was inundated with more and more, that my judicial responsibilities meant that I simply could not permit myself potentially to be lobbied, but therefore to be seen to be going to some and not all, and what do you do about those that haven't got the wherewithal to organise a seminar, so I decided I would go to none. That's not to say I am not vitally interested in what absolutely everybody has to say. The task of your clients, and indeed everybody else in this Inquiry, is to educate me and to bring me up to speed to ensure that I can provide a balanced, sensible conclusion that will work. Thank you. That's at the very core of what I believe is very important about the task that I have been asked to undertake. Thank you very much. May I move on to another point, please, which is also foreshadowed in our correspondence and our submission, and that is the number of assessors and their experience. Before you do that, in the correspondence you challenge the briefings -- well, you did. Right. You were concerned that I should have consulted people on who I asked to talk about the law. Has that gone? No. That, I think, is a legitimate interest, obviously, for those involved. Is this the teach-ins? Yes. Obviously people have been selected to come and speak to yourself, and I imagine the assessors as well. Yes. Well, equally because I want them to use their expertise in the areas, but in the context of an understanding of the way in which I'm going to have to operate, namely, what the law is. Yes. I think the selection of the individuals, who selected them and how they were selected, might well be of interest to the interested parties. That's all. I selected those, and I wasn't trying to in any sense get a slant, I merely want the facts. I want the law set out, again so that everybody can see where we are. Thank you. The regulatory regime, the correspondence was concerned that it would contain opinion. I'm not interested in opinion. I want the playing field to be identified within which this debate will occur. Thank you very much. All right? Moving, please, to the question of the assessors. There are six persons who have been appointed as assessors under section 11, and I understand the position that in correspondence with ourselves, at least, in the middle of September, it was stated that neither yourself nor Ministers felt the appointment of further assessors at this point in time was either desirable or necessary. Well, the Ministers did the original appointments and they appointed the persons that they believed were appropriate. Yes. Of course, now we are underway, you can consent yourself to the appointment of further assessors. I've read the Act. Of course. That is to what my submission is directed briefly, please. Yes. No criticism of the six individuals but it is a fact -- Well, there is criticism of one of them. Well, I will come to one of them in a minute. It's not actually criticism, but I will come to what it amounts to in a minute. Because had there been a challenge, the time for that was available. Can I come to that in a minute? I respectfully suggest it's not a criticism, but I'll come to it in a minute. Of the six who have been appointed, it is a fact that only three have some newspaper experience, and I think -- just for the purposes of being concise -- that experience is principally confined to working, I think, on the Financial Times newspaper and in political reporting. What that means is that of the expert -- I think at least one of the assessors has been involved regionally as well. In any event, I take the point. Your point is that there isn't a tabloid journalist. Well, not quite that. A tabloid, mid-market regional press, anybody who has been in the production at a senior management or editorial level of a major national newspaper, and by that I am not meaning to exclude the Financial Times but it does have a fairly niche market, and anybody who has been involved in the news-gathering process, in effect, for the daily production of a newspaper. In our respectful submission, the Terms of Reference, in our submission, would benefit quite clearly, I might submit require, expertise from across the newspaper industry, and we would earnestly suggest and urge you to give urgent consideration to appointing other assessors from across the industry to fill what we perceive as a gap in the expert advice. Aren't I going to get expert advice in lots of different ways? You will have evidence, there are the seminars, but in our respectful submission this is an Inquiry which raises fundamental issues for the future of the newspaper industry, and the omission by not having persons or a person or two persons, whatever it may be, who have some experience of the areas that I have mentioned is one which we would respectfully categorise as being unfortunate. It is a matter, obviously, for you, but we would respectfully suggest that the appointment of an additional assessors -- Help me, Mr Caplan. Will it be your case that the ethics of those who are employed in mid-market or tabloid journalism are or should be different to the ethics of those employed by broadsheet journalists? No, I don't believe so, no. I would have expected you to have answered in that way. I agree. But the demands and methods of working and the way you produce a paper in the tabloid or mid-market area is obviously going to be very different. This is another topic, perhaps, for detailed evidence but clearly, in our respectful submission, somebody with that experience and expertise is somebody whose area of knowledge is something we respectfully suggest should be available to you as an assessor. I understand the point and I take your submissions seriously. Of course, the expertise which each of the assessors presently appointed brings is rather different. The former Chief Constable deals with the press and the police from the police's perspective of the police. Lord Currie brings his experience of regulation; not press regulation, but of regulation and regulatory regimes. Shami Chakrabarti brings the balance between Articles 8 and 10 and her day-to-day work in that area with all areas of those concerned, the police, press, politicians. The journalists cover not merely the ethics or ethical approach to journalism, and I expected you to answer the question in the way that you did, but also cover an area which is another part of the Inquiry to do with the relationship with politicians. So it's right to say that we're talking about half, but there are lots of different ramifications to the various Terms of Reference that I have been asked to address without the tape self-destructing within two minutes. I take the point. Thank you. There are other features too. First of all, there is a question of general management. Secondly, there is the importance that I will attach to the evidence that I receive from everyone. It should be no surprise that I am particularly concerned to receive evidence from those areas of the press that are presently represented within the assessors, which is actually the reason why I suggested the seminars in the first place. I am being -- not criticised, that puts it too high, but tested on the seminars, but the idea was to make sure that from the very first moment I understood all the ramifications. Anyway ... Thank you. The points really, then, that I've raised with your Lordship are the clarification, obviously, of the role of the assessors, the protocol, and the question of seminars, and the application for more assessors. It's a matter for you as the Chairman. The last point, please, is this, and it's a point which you have referred to, I think, as a criticism of one of the individuals. The reason the point is made -- and may I say it is not a criticism, for reasons I shall explain -- I go back to my earlier submission, that the purpose of appointing an assessor is that he has expertise that makes him a suitable person to provide assistance and the emphasis in the Act is on "expertise". That may encompass some opinion, it may not, but in any event that is the word which is the focus for choosing an assessor. If one was choosing a panellist -- and I know we are not in that ballpark, but if one was choosing a panellist, then the Minister cannot appoint a person under section 9 as a member of the Inquiry Panel: "... if it appears that the person has a direct interest in the matters to which the Inquiry relates or a close association with an interested party." So panellists, obviously, are scrutinised from that point of view. Assessors are not; the focus is on their expertise. That is understandable, because assessors are not fulfilling any fact-finding process, they are there simply to bring to bear their expertise and to assist in that limited area. That underscores, we respectfully suggest, our submission that assessors should be confined to that area, because there is no section 8 or section 9 considerations with regard to assessors, and that they should not, unless there is some particular reason for using them within their expertise, for example to chair a seminar and their expertise is required for that purpose, should not perform acts such as that. We have no criticism whatsoever of any views that any of the panellists -- sorry, any of the assessors -- It's very easy. Very easy to do. Everybody has done it and I've now done it myself. They are entitled to hold any view they wish. That is clearly a free choice which they're entitled to engage in. The fact of the matter is, however, had the individual I've been talking about been going to be considered, this being a Panel Inquiry, then the very matters I've raised would have been considered under section 9 by the Minister as a matter of law. He is not. He is an assessor. He has views, he has a perspective, which he is entitled to have. I make no criticism of him for having publicly expressed those views and holding them. Indeed, he declared it before we started. Yes. But the fact of the matter is that he has publicly declared those views. He has been a leading light in the Media Standards Trust, which has been very critical of one of the topics which your Inquiry is considering, the Press Complaints Commission and the current system of self-regulation. He is a supporter of the Hacked Off campaign, which is one of the core participants, I believe, in this Inquiry. No, it is not. Well, some of the key members. The core participants are the victims of those who have been the subject of press intrusion, whether by telephone intercept or in other ways. There's a very wide variety of persons whom Mr Sherborne is acting for. The Metropolitan Police and all the others are media groups. Yes. I think there may be some individuals that are supporters -- I don't wish to be inaccurate about this, but I think some of the supporters of the Hacked Off campaign are core participants. It wouldn't surprise me if some of those who fall within the group which I have collectively called "victims", because they cover a lot of different areas of concern, don't support an organisation such as the one to which you've just referred. Yes. So there clearly is a publicly expressed view in relation to a part of the Terms of Reference which you have to consider, and a view which is shared with one or more of the core participants. In our respectful submission, not a criticism, a view you're entitled to hold. Who knows, it may be a view your Lordship will come to yourself in due course, I have no idea. But if the individual concerned is then going to be asked to do acts such as chair seminars and move away from areas of expert assistance, then I think, with very great respect, that does become a concern. Well, chairing a seminar in the field of the area that I asked Sir David to chair, I certainly considered was within his expertise. I don't anticipate that we are going to be littered with seminars throughout. We've talked about it a lot this morning, but I see an area merely of opening the debate and then I'm also visualising, but we're a long way from this, of having seminars at the end to potentially discuss emerging findings. In other words, to get the views of the core participants, and indeed potentially others, on the possible ways forward. In other words, to do the testing that I referred to before publicly. It is that that I am talking about when I talk about wanting to be collaborative and taking a very very different line to that which judges normally take, which is simply to get on with it. I understand the point. By the end of this Inquiry I hope that I will have knowledge from all corners and be able to bring that collectively to bear to reach a conclusion which not only satisfies the competing demands of the press but also those of the public. Thank you. Would you just give me one moment? Certainly. May I thank you very much. Mr Caplan, what I am likely to do, I am going to hear everybody else. I have to make some decisions about certain things immediately, but I am likely to reserve a ruling in relation to the submission you make about assessors, not least because I will want to articulate very carefully the approach that I take on whatever way I decide, if only to assuage concerns which have been expressed. Thank you very much indeed. Right. Mr Sherborne, do you have anything to say about any of this? Submissions by MR SHERBORNE Sir, can I make a few observations. As regards the role of assessors, the position of my clients, the victims, as we call them, is entirely neutral. This is a matter essentially for the Inquiry. With respect, I would endorse the views you, sir, have expressed. We take the view, if a view is taken, that this is a matter the Inquiry is more than capable of dealing with, being conversant with the rules and the practices and the way in which inquiries are carried out. As regards the identity of assessors, we would say that it's no more necessary or appropriate to appoint assessors from the tabloid press than it is the victims of their misconduct. There is no victim who is represented as an assessor. But, as you've said, sir, you're going to hear from a large number of victims who will explain in their own words and with their own individual concerns the problems and the things that they have suffered at the hands of the press over a number of years. We don't believe, as I say, it's any more necessary or appropriate to have someone representing that group than it is someone representing the tabloid press. Sir, there are three journalists appointed, and a journalist is a journalist, if I may say that in this room. That's why I asked the question. Yes, and I am glad you did, because I was going to raise that. It's interesting to hear that Associated Newspapers has publicly accepted that the ethical standards that apply to journalists should apply across the board, however much tabloid editors may wish it otherwise. That is a bit unfair. They've not said it, and we will see what they do say. But just being careful, Mr Sherborne, we have a long way to go. Certainly. We have a long way to go. Can I raise one matter which is related and it concerns the timing of the seminars. Yes. A lot has been said about seminars and that's why I raise it this morning. It's simply this: we appreciate the pace with which the Inquiry intends to progress these matters, and I say that genuinely, and it's understandable given the present public concern about media practices. It's a pace which is a matter of considerable comfort to my clients, the victims. However, they are equally anxious to have sufficient time to present their own individual concerns about what they've suffered and concerns to ensure that others don't suffer the same. Sir, you'll appreciate there are a very large number of clients that I represent, I think it's 46 at the moment, and they all have their own individual concerns, their own individual experiences. Presenting those in a way that is of most assistance to this Inquiry and presenting, if I may put it this way, the principles that concern them in a way that is most effective to the Inquiry is something which will necessarily take time. The way in which those concerns can be expressed doesn't simply relate to the evidence which they will give in the evidence process, it also concerns the seminars, because that is one way in which, through me, their appointed spokesperson, they can raise concerns, for example about the practical difficulties in obtaining injunctions, the primary remedy for the invasion of somebody's privacy, or the pursuit of legal proceedings. All that will, in fact, come out in the evidence. It will come out in the evidence, but there are practical problems in this area which it would be useful, in my submission, for the Inquiry to appreciate at the seminar stage, so that the Inquiry will understand what those concerns are when you hear the evidence from the individuals who suffered their own individual experience. But -- All I am saying -- and I don't know if this is necessarily something which is a matter of disagreement -- it is the concern to ensure that there is sufficient time to prepare for these seminars, in the sense of providing either written submissions or providing people who can give expert assistance from the victims' perspective in relation to the topics which you're considering in the seminar. In the same way as you're looking potentially to hear from Mr Dacre or some equivalent editor, in my submission there are individuals who have been involved in the very matters which the Inquiry is looking at, the seminars, who could provide expert assistance in relation to those areas. I'll think about that. I haven't particularly perceived of a debate as to the practical consequences at this stage. I think that my present ideas for seminars, which I want very quickly, I make no bones about it, because what I intend to do, as I explained to Mr Caplan, is to use them as a springboard to encourage interested persons who aren't necessarily core participants to be able to provide evidence which then may or may not fall to be considered publicly or merely form part of the record and the evidence that I've taken. Can I give you one example, sir? Perhaps we can test it in this way. There is a real problem, as you will have appreciated and as the public appreciates, with individuals who have obtained orders from the court protecting their privacy rights whose orders notwithstanding it has been decided by a judge that they are entitled to that protection, orders have been rendered futile -- and I put this neutrally -- by the activities of the press or the activities of those who use the Internet or Twitter or other media. Now -- I don't think it's the activities of the press in that regard. I think it is -- It does concern me. It may or may not be. I am not making a judgment. That's my point. In order to educate, to use the word that you used; in order to educate the Inquiry as to these types of problems, it's the seminar stage which is key to this, because in terms of evidence that's an entirely different process. Whether one can encourage individuals who have been put in that position to come and give evidence is another point. But raising the difficulty, raising the problems and how that is dealt with, is something which, in my submission, needs to be looked at at the seminar stage. Because if you're looking at -- I mean, there's no dividing line between seminars now and evidence later. This will be a continuing process, and I am very willing to organise different types of mechanism for ensuring that all views and all concerns are aired. But I equally want to get on, because evidence is now coming in. A number of people asked for time because of the summer, which I understood and understand; but we have received a fair amount of evidence. I've not yet read any of it, I make it clear. But I will want to start as soon as I can to get the evidence in so that I can start hearing it. I hoped really to begin the process with a number of your clients, not least because they set the scene for all that has come about. I think it's important, not in seminar but in evidence, to obtain from them what has happened, in the sense of the problems you mentioned, but also the personal consequences to them, so that one can get some idea of the importance of the area. I'm not suggesting that they don't fully appreciate it, but it strikes me that this Inquiry is addressing not merely the core participants but also the wider public. Sir, yes, and I understand that, but I hope two things. Firstly, I hope that it's clear that, whilst we would like to provide evidence from witnesses who cover the full range of the problems, I am not convinced that we'll be able to do so. So there will be problems that are raised in principle that we can't necessarily encourage or persuade an individual to come and give evidence to talk about it. Then that is something which I will be very very keen for you to discuss with the Inquiry team, to make sure that we find a mechanism to ensure that this can happen. Sir, you'll appreciate the seminar was the stage at which I thought it could be initially raised, but I understand there may be other ways in which this could be raised. The second point is I wasn't asking for this in effect to be put off, the seminars, but merely to have a little more time. I know the date of 6 October has been mentioned and the date of 12 October has also been mentioned. I don't know whether that has been fixed in terms of which seminar will take -- I think those dates are fixed in one sense. Whether there is room to adjust what we are going to do, I will need to think about. Sir, I have raised what I might say -- That is very useful. Thank you very much. I am grateful. Other than that, we have nothing to add. Thank you very much. Ms Michalos, do you have anything to say on this topic? Submissions by MS MICHALOS Sir, my name is Christina Michalos and I appear for the Commissioner of the Police for the Metropolis. Bernard Hogan-Howe has been appointed since the last hearing. As regards the role of the assessors, we welcome the clarification of their role as set out in the assessment protocol and the position now seems clear. It is clear they are not panellists. We don't object to any seminars being chaired by an assessors within their areas of expertise. As regards the appointment of further assessors, the Commissioner's position is neutral. Once the Inquiry has started, Parliament has placed the power to appoint further assessors into the hands of the Chairman. We don't oppose the application of Associated Newspapers, but ultimately we consider it a matter for you, sir, as Chairman, and we don't seek to persuade you either way. Thank you very much indeed. That's helpful. Thank you. You identified you appeared for the Guardian. Do you have -- Submissions by MS PHILLIPS MS PHILLIPS: My name is Gillian Phillips and I am the in-house lawyer for Guardian News and Media Limited on the editorial side. You are core participants. Therefore -- MS PHILLIPS: We are. Firstly, on the point about the assessors, we are grateful for the clarification that has been provided by the draft protocol that arrived on Monday. That's the first clarification we've had about that. Just pause a moment. MS PHILLIPS: We are grateful for the clarification we received in the draft. We were to discuss it next week, and we will probably use next week to discuss other things as well because there are other topics, but I am sorry that you've had it only for a very short time. MS PHILLIPS: Likewise, I have to say with regard to the draft protocol on redactions, which although it says in the note that it has been sent round before, Monday was the first I had seen of that. I am very sorry about that. MS PHILLIPS: We are grateful, as I say, that the transparency and clarity of the procedure is starting to emerge. On the role of the assessors, I have nothing more to say other than with regard to the possibility of the Inquiry taking on some additional expertise, Guardian News and Media's view is that the tabloid and mid-market press, as well as the regional press, operate and will play a vital part in the story of the narrative that you are very keen to put in place, and we believe that it's important that those assisting the Inquiry reflects the plurality and the divergence of that wider UK media. With regard to that, we would just say that in particular the regional press have a much closer and a much different working relationship with the public. I think Mr Jones has some experience in the regional press. MS PHILLIPS: Yes. They have a very different place to play in the story than the national news media, whether broadcasters or printers. Do you agree with the proposition that I put to Mr Caplan, that I can obtain this expertise in different ways? MS PHILLIPS: I don't disagree with it, but it seems to me that the Inquiry would benefit from having someone with that background to call on, in the same way that it has other people with expertise to call on to its own demands. It may be we'll have to wait and see. I'm not suggesting that, but that may be one of the ways forward. MS PHILLIPS: That's all I wanted to say. Thank you very much. Before I ask Mr Jay, there's just one question I would like to ask you, Mr Caplan. In one of the letters that the Inquiry wrote to you, or wrote to your clients, I think the Secretary asked the question ... Page 47. As you were dealing with this topic: "You say that the Inquiry needs to be provided with expertise from across the industry, in particular the popular press, the regional press and investigative journalism, regardless of the mechanism by which expertise might be provided or received. It would be helpful if you could provide details of any specific individuals you consider the Inquiry would in particular benefit from hearing from on these matters." Yes. You've not responded to that. May I just take instructions? Please. I think this is the letter that was received on Friday evening. Well, I think -- Last Friday. Yes. It was sent on the 23rd, with -- This is -- With great respect, it's in response to letters of the 20th, 22nd and 23rd which you addressed to me. I think it raises a new issue on Friday afternoon. I haven't re-read this. Is this in the context of seminars? No, no. This is in the context -- I understand the point. We will respond to the request as soon as possible. All right. Right. Mr Jay, I think we've clarified the difference between panellists under section 4 and assessors under section 11. Yes. Everybody understands that these are assessors, but I would be grateful for your help in any area that you wish to provide it in relation to what Mr Caplan has said, and in particular dealing with his point on the assessor protocol and the need for further assessors. Submissions by MR JAY Yes. The role of the assessors, we derive that from section 11(1), in my submission, and section 24, section 24 by implication. Because in a case where you are, as it were, sitting alone, this is a section 3(1)(a) case. The facts are for you alone and the recommendations are for you alone. Yes. Sir, under section 11(1) it appears to us that the term "assistance" or rather the verb "to assist" must include advice. Informing your conclusions under section 24, you may be assisted by assessors in relation to matters falling within their expertise. There's no reason, in our submission, why you're also not entitled to state in your report if a particular finding or recommendation is contrary to the advice of one or more assessors. Yes. That's a matter for you. It is not a requirement, however, because if you were constituted as a panel under section 3(1)(b) and one member of your panel, as it were, dissented, then the points of disagreement would have to be set out, owing to section 24(5). Yes. I said what I said in an effort to be as open and transparent as possible, in an effort to demonstrate to all where there was a different view -- Yes. -- what that view was, so that those responsible for taking forward the recommendations that I make could do so in the full knowledge of the context in which I made them. I was trying to be helpful, not difficult. Yes. Sir, may I deal with the concept of expertise? Yes. We are not in the realm, in my submission, of a hard-edged discipline like chemical engineering or heart surgery. This is far softer, perhaps more fluid. It is for you to decide, in our submission, having regard to what you know of the assessors, whether a particular matter does or does not fall within their expertise. So all these points have been made in a draft assessors' protocol, which, as you know, has taken some time to formulate along with the other protocols and doubtless will be finalised next week at the next hearing. Yes. Sir, the intention is, looking at the protocol, it's page 12 of your bundle, that the guiding principle, the lodestar, as it were, is in paragraph 2: "An assessor will assist the Chairman in dealing with any matter in which the assessor has expertise." And paragraph 3 is subordinate to paragraph 2 and gives particular examples. That which is controversial is only subparagraph (b), the chairing of seminars. A chair of a seminar is only guiding or facilitating discussion, in my submission. As you pointed out, you can choose anyone within your discretion to chair a seminar. Do you agree with that as a proposition of law? Yes. Yes. An assessor will only chair a seminar in whole or in part in circumstances in which his or her experience and expertise will assist the better conduct of the discussions. That was the point I was trying to make with Mr Caplan. Therefore, what do you say if I were to write into this 3(b) "chair the whole or any part of any seminar in an area of their expertise"? It's there, as it were, by implication in any event, because 3(b) is subordinate to (2) but expertise, as we have described it in this rather soft-edged area, will guide who you decide should chair the whole or part of any seminar. It is a matter of your discretion. Yes. I hadn't anticipated that chairing a seminar was going to be controversial or potentially difficult. The reason that I formed the view that I shouldn't chair the seminars was because I didn't want people to start thinking that who I ask to speak from the audience was in some way to be construed as my thinking. I only intend them to be entirely balanced. If they're not, I will notice it very quickly. Sir, given the complexity of the issues in the Inquiry, I think none of us involved in it at the moment have any emerging ideas. We are still learning, and the seminars are designed to prevail the learning process. Right, yes. Sir, that's the intention in relation to paragraph 3. Yes. Sir, we would invite you not to finalise the protocol until -- I have no intention of that. Because everybody has to come together on this. Exactly. Not everybody is here and, as the note under which the protocol was sent made clear, the hearing is to be on 4 October, that hearing has been accelerated, that's understood, but the other core participants may have other things to say. I am not trying to bounce anybody into accepting something they haven't had a chance to think about. It wasn't suggested -- I mean, when I was told "We've only had this since Monday", I didn't take that as a criticism -- maybe it was -- but I do want people to have the chance to think about it. Yes. We've made it clear that the protocol has been drawn from the model of another Inquiry, but we've adapted it to meet the circumstances of this Inquiry. May I move on to the issue of additional assessors? Yes. It is true under the Act that matter is solely within your jurisdiction now and not the jurisdiction of Ministers. The six assessors were appointed by Ministers before the Inquiry was formally set up, but now it's a matter for you. In reaching any decision you will have regard, no doubt, to the existing constitution of the assessors and to section 11(4). It merely states the obvious that: "A person may be appointed as an assessor only if it appears to you that he has expertise that makes him a suitable person to provide assistance to the Inquiry Panel." It's axiomatic you are not going to appoint someone who is unsuitable. May I, at this point, deal with the submission Mr Caplan made with which we respectfully disagree. Could you appoint someone who was parti pris, who was not independent in relation to whom there might be an appearance of bias? In my respectful submission, you couldn't. It is true that there is a requirement of impartiality in relation to Panel members properly so-called, because we see that under section 9. So in a section 3(1)(b) case the statute makes it clear that "someone cannot be appointed if he or she has a direct interest in the matters to which the Inquiry relates or a close association with an interested party". However, there is an overwriting requirement for you to act fairly. We see that in section 17, and we wouldn't recommend that you appoint someone in respect of whom allegations or suspicions of bias might be made or might arise. Well, that's what I would have thought; but the position in relation to assessors is different. The ones appointed by the Minister have been appointed by the Minister. I read section 11(5) because I wasn't quite sure what Mr Caplan was going to be suggesting -- Yes. -- as relevant to some matter that arises subsequent to the date of the Minister's appointment. That must be right. I mean, can we test it in this way: the assessors have been appointed before the setting up date under section 11.2(a), and that was all announced on 28 July. At that point, of course, the assessors gave declarations of interest in the interests of transparency and for the avoidance of doubt. Now, if it is to be said -- and I understand it isn't -- that any one of the assessors is an unsuitable person in view of an appearance of bias, well then a challenge will have to be made to the Minister's appointment under section 11(2)(a) and there, of course, the time limits under section 38 of the Act might be relevant. One cannot bring in the matters through a sidewind through the gate of section 11(5) and invite you, as it were, to terminate the appointment of a particular assessor because the Minister made a wrong decision under section 11(2)(a). Section 11(5) is there because if something comes to light after the Minister's appointment, which the Minister logically could not have known about, well then it's drawn to your attention. It doesn't, of course, have to be anything equivalent to an allegation of bias; it might be something entirely mundane, it might be the health of the assessor, it could be anything of that nature. I quite understand, but the point that I was making was that the position now is different. It is my responsibility -- To appoint, yes. -- to appoint. Yes. As I understand the Act, I don't even have to consult the Minister. You don't. Or, in this case, Ministers. There's no express requirement to consult Ministers. But the Ministers took the view as to those that they believed were appropriate three months ago. Yes. Mr Caplan's submission is more: well, without prejudice to whether or not the initial appointment was appropriate, you should appoint further assessors because there is a gap in the expertise. Of course, if there were a gap in the expertise and you believed that it was necessary that further assessors were appointed, then you would have power to act accordingly. In exercising your jurisdiction -- it's a little bit academic at this stage because no candidates have been put forward and so we are debating this in abstract and you are inviting Mr Caplan to indicate whether there were additional persons from whom the Inquiry should hear; but looking at it more broadly, in exercising your discretion you should regard to the existing constitution of the Panel, you should have regard to all the other assistance you are going to receive during seminars, during the evidence sessions, representations made by members of the public, et cetera, et cetera, whether you need a further assessor to assist you. These are all self-evident matters. There isn't, of course, a dichotomy or chasm between the broadsheets and other sections of the press when it comes to the ethical standards that should be applied, though, naturally enough, the pressures on different sections of the press are different. But it's a matter for you to decide whether you need expertise to assist you in relation to identifying those pressures and their effects. You may think that you don't. Well, the trouble is that one has to decide where the line is, because the pressures affecting the Liverpool Daily Post and Echo will be different from the pressures affecting the Mirror or The Sun. Yes. Which will be different from the pressures affecting The Observer or a Sunday newspaper. Yes. I mean, one could break it down and each one will have slight different perceptions of the problem. Yes. It is evaluative, but the issue, I suppose, for you is what assistance you need in making that evaluation. The point has been made in some of the evidence we have read from some newspapers, and I put it in this way: we as a newspaper do not indulge in unlawful and unethical practices because we do not write the sort of stories for which the need for those practices would possibly arise. Now, whether or not that's a good point, one can perhaps imagine which newspapers those might be, when we're looking at newspapers where the pressures are different, where owing to their readership it might be said there is a greater pressure to write these stories, the issue is: do you need to have an assessor to assist you in this regard or can you use your own judgment, having regard to all the expert assistance you have in any event from your assessors and all the evidence you're going to hear? It's entirely a matter for you, in my submission. Yes. The principles are bedrock, I would have thought, but we will have to see. I am not making any decision about anything. Yes. I caveat everything I say throughout, in case people are writing it down in order to derive some conclusions as to where I am or where I'm going. It would be a mistake to do that. Yes. One point that Mr Caplan didn't make, and can I try and put it in this way, I mean his submission may be this: the way you're going to see and interpret the evidence is going to be refracted for you through the prism of your assessors. Therefore, the light that is going to be derived is going to be distorted by that refraction. Therefore, it's essential -- so the argument might run -- in order to ensure that the light beams are pointing in the right direction or in a series of fair directions, that you have someone on your Panel who is going to point your glass in the right direction. I hope this metaphor isn't getting a bit too tiresome. That is the sort of point which Mr Caplan may be making. I think it has been made in a different context by someone else. That is the sort of counterbalance to the other points which would indicate that perhaps further assessors are not required. The only point I am seeking to make is these are all relevant considerations for you in exercising your discretion under section 11(2)(2)(b). There isn't a clear principle that you must follow, there are a series of relevant considerations. But the underlying principles, if they are consistent, simply require to be applied differently. Yes. It would be a mistake to think that I intend to view the evidence that I will hear through the eyes of the assessors. I am charged with making up my own mind, and that's precisely what I shall do. Yes. All right. Yes. Sir, the final submissions Mr Caplan made about Sir David Bell, there are two separate issues, in my submission. Either there is a "problem", in inverted commas, in relation to Sir David Bell because there is an appearance of lack of impartiality, and that's one point, or he should not be chairing a seminar because it's not within his expertise, that's another point. But they are entirely separate points, and one of Mr Caplan's submission was in danger of merging those two points. I would invite you to keep them apart. The seminar that I've invited him to chair is actually within the very area that his expertise touches, it seems to me. That is the purpose of the idea, anyway. All right, let me see where Mr Caplan is in all this. He made the application, so I'll give him the last word. I think we've made our submissions; I don't think it's necessary to add anything. On the basis that I have clarified the position in relation to the seminar, does that part of your submission change in any way? In other words, what I'm asking is whether, in the light of what I have said about how I intend the seminars to operate, and by "chair" I only do mean chair and call upon different people from different sectors to speak and, of course, I have deliberately involved all three of those press people in the seminar that he would chair, does that assuage the concern that you have been expressing? I think I must maintain my submission for these reasons. Firstly, we do ask for a principled approach in the way I have described to the use of the assessors, and I understand the potential amendments you may make to the assessors' protocol. Does that do it? I think that would be a judgment for you to make as to whether or not, in a particular case, their expertise is called into play by reason of the task that you're assessing. But if I clarify -- Mr Jay says it doesn't need to be clarified because 3 is subsidiary to 2, but if I did clarify it, if I put those words in, does that deal with the concern that you've expressed? You would have, if I may respectfully say so, then to go on to apply it to particular circumstances. Of course, yes. And I will make a judgment. In our respectful submission, as I say, it is only those matters that are within the expertise of the particular assessor that he should be asked to perform. But -- The other matter, may I just respectfully suggest, it is necessary to consider is that it is difficult to foresee, or it may be difficult to foresee how these seminars will actually play out in real life, as to what degree of questioning or leading or debate is going to follow. I don't intend anybody to be questioning anybody. Yes. What I intend, and I am sure you have seen the structure intended for the first seminar because, as I say, the editor-in-chief of your clients was invited to take part. I think he can't be here. No, no, I know. I'm not being at all critical of him. He said he couldn't because he was not in the country, and I'm sorry about that but there it is. Yes. I wasn't for a moment suggesting anything else. I am merely say that you have doubtless seen the structure. Yes. And I intend them to be chaired as one would chair any sort of debate, by making sure the different people from different perspectives have the chance briefly to speak, and to ensure that all the issues are brought out. I don't intend the assessors to be proffering their own views, to such extent as they have them, in any of these seminars. I intend them simply to be facilitating the discussion by others. I think my submission really is as I began, it is a matter of applying the protocol. I understand the amendment that you are contemplating, and it must be a matter for your judgment as to whether or not the expertise is required for a particular task. Right. Thank you very much indeed. Thank you. Sir, can I raise one point? Yes, please. It is simply arising from what Mr Caplan or rather what you said, sir. We don't know what the structures of the seminars is. You will by the end of the morning, because I will show you. Well, I won't, but somebody will. So far -- just let me explain -- the team identified speakers from different sections and people were invited to give short speeches. Invitations were due to go out actually a day or so ago -- but they haven't gone out in case I was to cancel the whole thing in the light of what Mr Caplan submitted -- to a wide range of people to attend, including the core participants. The idea is that there would be, I think, in each of the sessions, maybe three people who spend ten minutes from their perspective and then it will be open to anybody else present to add a view and, as it were, to contribute to the debate. For the avoidance of doubt, the seminars will be recorded, streamed and available immediately, a transcript will also be prepared and a summary, because the summary will then be used to promote a wider request for opinion. I am very grateful. You are very welcome. The seminars will be recorded? Recorded. They won't go out concurrently but consecutively. I understand. Thank you very much. In relation to the application or at least invitation made by Mr Caplan that I appoint further assessors, I will reserve that decision and provide a ruling in due course. In relation to the briefings, or teach-ins, as they have been sometimes described, and the seminars, I am satisfied that they should take place as I originally envisaged. I shall, of course, be present, and I have no doubt that they will be conducted in the manner that I have described and that they do fall within the area of the expertise of the assessors who have been appointed, who will be in the best position to ensure that all those who speak come from as wide a variety of experiences and professional backgrounds as can be encompassed within the time available. I shall provide the ruling in relation to the application invitation as soon as possible, but before doing so I shall want to review precisely what Mr Caplan has written and what others have written, and what he and others have said. Mr Caplan, I understand I won't have the benefit of your assistance next week, but I am sure that I will have the assistance of Ms Palin or whomsoever your clients seek to send. You will indeed, yes. It is of critical importance to me throughout this Inquiry that I have the help of everyone. I have, as you have identified, a vast and difficult task to address within a comparatively short period of time. I accept the importance that it holds for your clients and for the industry and profession as a whole. I will only start to be able to achieve a sensible resolution of those issues if everybody is pulling in the same direction, albeit from their different standpoints. I'm not asking people to compromise their views or their beliefs but I will want to make sure that I have every point of view, and if there is any perspective which it is thought that I have missed, in the evidence that I propose to call or in any other way, then I will be grateful if your clients and indeed all the other core participants ensure that the team were aware of the gap, as you've sought to in this, so that I can seek to fill it or make sure that I have it well in mind. I am very grateful. May I just reiterate, if it is necessary, that certainly Associated Newspapers apply for core participant status to be able to make, I hope, a useful and valid contribution to the issues which you have to consider. I have no doubt that they do, can and will. Thank you very much. Thank you very much. (11.06 am) (The hearing concluded)