(2.00 pm)
LORD JUSTICE LEVESON
Sorry I'm late, Mr Jay.
MR JAY
Sir, the first witness this afternoon is the Right Honourable Ed Miliband, please.
LORD JUSTICE LEVESON
Thank you very much. EDWARD SAMUEL MILIBAND (affirmed) Questions by MR JAY
MR JAY
You've kindly provided us with a statement. I'm not sure the copy I have is dated. It matters not. Are you happy to confirm that this is your formal evidence to the Inquiry?
A. Yes, I am.
Q. Thank you very much. Of course, you were Secretary of State for Energy and Climate Change between October 2008 and May 2010, and since September 2010, leader of the opposition. Can I ask you, please, to develop your over-arching thoughts on the first page of your statement at 06816 first?
LORD JUSTICE LEVESON
Before you do, if I can get a word in edgeways, Mr Miliband, thank you very much indeed for the obvious effort and thought that's been put into the evidence that you've provided. I'm grateful.
A. Thank you, sir. Thank you, Mr Jay. Can I start by saying that it is a privilege for me to be able to give evidence to the Inquiry. I do provide an opening statement and I want to briefly develop those points. I think the first point to make is that we have elements of an outstanding press in this country. We certainly have fantastic traditions of the press. Indeed, the expose of phone hacking only happened because of the rigour and dedication of parts of the press, so I think it's very, very important that the recommendations that come out of this Inquiry uphold that freedom of the press and those great traditions. I think secondly, reading the compelling evidence that has been put to this Inquiry, I think particularly of the evidence of Kate and Gerry McCann, there's clearly something that's gone very wrong in the way the press deal with individuals, individuals who don't seek celebrity, and I hope that can be put right by some of the recommendations of this Inquiry. I think thirdly it's right to acknowledge that the failure to get to grips with these issues earlier is a collective failure of the establishment. The press, the police, who didn't investigate properly, and indeed politicians, who were at least aware of some of what was going on and didn't speak out. Fourthly, I think it's right to say right at the outset that an organisation like News International had huge power, and I think politicians were reticent of speaking out about some of the practices that were exposed, I include myself in that. There came a moment when I felt it was impossible not to speak out. I knew at that moment I was crossing a Rubicon, if you like. I did do that and I think it was the right thing to do. The final thing I want to say to you, sir, is that no politician is going to come before you and give you a blank cheque, and you wouldn't expect that, I know, from reading the evidence, but I think there is a huge responsibility on politicians to make sure and I gather this was echoed by Sir John Major this morning that your recommendations do not end up on a dusty shelf somewhere, as I think you yourself have remarked.
LORD JUSTICE LEVESON
Yes, I said the second shelf. Mr Paxman thought it ought to be the bottom shelf.
A. I remember reading that, sir, but I think we have a huge responsibility and I want to say, really, echoing something you said at the beginning of this week and something that Tony Blair said in his testimony, that for any Prime Minister this is going to be very difficult and I want to say that I will do everything I can to seek to work on a cross-party basis so ensure that your recommendations provide a framework for us for the future.
LORD JUSTICE LEVESON
I'm very grateful for that assurance. I've spoken lightly of the second shelf, but actually there is a serious point, that this is not an area of the law with which I have been particularly familiar in my practice, either at the bar or on the bench, but I have been very disturbed to read that since the War, there have been repeated attempts to seek to address this issue, all of which in the end have just foundered, and I would be very disappointed if the amount of effort not just public money, public money as well, but intellectual effort from all the people who have been the core participants, from all those who have given evidence, and it's why I have thanked everybody who has prepared a statement, who have obviously thought about the issues if all that effort was wasted and didn't achieve something. I'm not entirely reassured by the repeated comment that the very fact of the Inquiry has already made a difference. It may do this month, it may do next year, but I think the effort requires a rather greater repayment than that.
A. I concur with those remarks, sir.
MR JAY
Thank you. May I move on to question 2, the second page of your statement, 06817. The third paragraph, first of all, where you bring in the theme of press freedom with responsibility, which reflects evidence we've recently heard as well. You say in the last sentence of that paragraph that you think the public interest is best served if there is respect on both sides and fair play "in our dealings with each other". It's a question though, Mr Miliband: how do you promote that state of affairs?
A. Well, Mr Jay, I think this is an important question and I'll be honest with you: I think it's one I've wrestled with a lot in thinking about my evidence. I said at the outset that my primary interest in the work of the Inquiry was to protect the innocent victims, the people who didn't seek celebrity, and I want to reaffirm that before I talk about this relationship, because I think it's very, very important to set some context. Having said that, I think that we should be seeking in our democracy a relationship of mutual respect. Let me just say a little bit about what I mean by that. Respect from politicians for a free, fair and strong press I think is very, very important, and not respect for individual politicians from the press, not deference, but a sense that there is fair play, a sense of being able to get one's views across. I think that would be the ideal we'd be seeking. I have to say, I think we're a long way from the ideal at the moment. I think at its worst, there is a sort of mutual culture of contempt, I would say, from the press, who think the politicians aren't straight with them and who behave badly, and from politicians who think we're just not going to get a fair hearing. I think the reason this is important is because it is perhaps part of the context to what I describe in my statement and others have described in different terms as the excessive closeness that there can sometimes be. Why do politicians and this is not a defence or an alibi seek the closeness? Sometimes it's because it's the way of getting a good hearing. I think you had a flavour of that from some of the participants. So I think I've set out to you what I think the ideal is, but we're a long way away from it. I'll say just one other point. I think the biggest injustice, if you like, that needs to be put right by the Inquiry is in relation to ordinary people, but I think it would be a great thing if, in the work the Inquiry does and the recommendations it makes, it can help to improve that relationship, because I think that would be good for our democracy, frankly.
Q. Thank you. Can I move on to interleave what you say under question 11, which is page 06823, where you deal with the issue of the media's impact on political debate, the diversity of opinion. A number of witnesses have spoken about the conflation or fusion of news and comment, Mr Miliband. First of all, do you think that that is a significant problem, and if so, what would you do about it?
A. Yes, this is perhaps one of the trickier issues. The code and I think this first arose in the questioning of Peter Mandelson. Well, at least I hadn't realised this about the code until the questioning of Peter Mandelson. The code is very radical on this point, in saying that there should be a separation of fact and comment. My honest view about this is that I think this is not something that is necessarily going to lend itself to a regulatory solution or a redress solution in quite the same way as issues of other things that appear in the code around privacy or harassment or inaccuracy which I think is slightly distinct from the blurring of fact and comment are treated, because I think it's very, very difficult to see how you can sort of regulate the fact/comment distinction. I should say right at the outset: I'm not in favour of statutory regulation to ensure balance, for example. I'm not in favour of statutory regulation of content in the sense of having balance like we do in relation to the broadcasters. I hope that one outcome might be, though, that if we have a new body charged with looking at these issues and dealing with upholding the code, they can at least seek to raise standards. Some witnesses have suggested, for example, an annual report on these issues. I think finally I'd say inaccuracy is a problem, is in the code, and I think, you know, there should be a remedy for inaccuracies, and I suspect all the newspapers that you've had before you would accept that.
Q. Thank you. At the next paragraph under question 11 on this page, you make it clear that you see journalists and editors. Of course, there's a public interest in doing that. They will express views which may influence your thinking, but you approach it on the basis that they should have no greater influence than the quality of their argument. Are you able to differentiate, though, between the message and the messenger, given what one witness described as the undertow of power which some proprietors have been able to exercise?
A. I think there's no question that the press has a significant influence on the parameters of public debate in this country, as in any country, and I think that it would be incredibly naive or indeed dishonest not to acknowledge that. In the way they report things, they both reflect the views of their readers and I think we should be clear that some of the things that Labour politicians or Conservative politicians might dislike about what the press says does reflect the views of their readers. Some of it shapes people's views. I think that is inevitable. And we have what I would call a partisan press in this country, more centre right than centre left, so I think that's obviously the case. So I think anybody who says that they don't have an influence on the overall terms of public debate would be wrong. I think that in your discussions you've looked for the express deal, the implied deal. I think it's much less about that, at least in my experience of the Labour government. It's much more less about that, and it's more about influencing the terms of public debate. We might come on to the question of whether politicians spoke out about some of the abuses of the press, where I think that there was an effect of politicians not speaking out because of the power of the press, but I think that's the way I seat issue.
Q. Thank you. If I can go back, please, to the earlier point in your statement, paragraph 3 now, at the top of page 06818. That's whether you detect any differences between politicians in government and politicians in opposition. Of course, you've had experience of both but I think we're particularly interested in politicians in opposition at the moment and whether there are, in fact, differences, whether the same standards should apply or whether different considerations might impinge.
A. Sir, I've had experience of this in sort of three goes, if you like, because I was an adviser in opposition in the 1990s, I was obviously an adviser and a politician in government and now obviously in opposition. I think I'd make this observation, which is there's no question that having had the experience of government makes you more cautious, in my view, less informal about the way you do things. I was Secretary of State for Energy. I was making potentially big multi-billion pound decisions in relation to nuclear power, for example. You obviously have to observe the ministerial code. You're given help and support to do that by your permanent secretary, your principle private secretary, your private office. I hope that I've carried some of the habits of government into opposition. So I think experience of government, if you like, is useful in terms of then coming into opposition. I think I say broadly in the written answer that similar standards should apply, that obviously some things like quasi-judicial role don't apply if you're in opposition, but that you should seek similar standards.
Q. Yes.
LORD JUSTICE LEVESON
Actually, we had it the other way around from Mr Blair. I think it was identified by Alastair Campbell, who said that having been in opposition for 18 years and having had to get the message across latterly following the 1992 election in a very much more proactive way, the Labour Party carried into government attitudes and approaches developed in opposition, which was a mistake. That's, I think, how he put it. You've just put it the other way around. It may be the same thing.
A. I think there was probably a greater degree of informality, is the way I would put it. I'm not sure what the specific mistake that the witnesses were referring to was, but there was a greater degree of informality in opposition. Having been in government, one is more wary about what might be right and what might be wrong, and it's certainly an approach that I've tried to take as leader of the Labour Party.
MR JAY
Mr Miliband, question 5, lessons to be learned from the recent history of relations between the media and politicians. You pick out four points, and there's also a fifth point, which you pick up again under question 8, so I'll collect them altogether now. You say: "First of all, politicians were too slow in condemning or scrutinising the conduct of the media, in particular the phone hacking abuses. There are a number of reasons for this." The first one: "Politicians were weary, in some ways rightly, of being seen to be curtailing freedom of the press." I think the question is: in which way "rightly"?
A. Mr Jay, I think there are two factors at work here. I think there is the factor that politicians were, in my view, wary of taking up the issue of press redress, the system of complaints, the way all that worked, for a variety of reasons, but all coming back, in my view, to the single one, which is that we were concerned about the impact that it would have on the particular political parties that took up the cudgels on that issue. I think Mr Blair put it as it would have distracted attention from the health service and so on. There's different ways of putting this, but I think it all amounts to quite a similar idea. You know, it would be taking on an 800 pound gorilla, and you do that advisedly, or inadvisedly. The second part of it, though, which is, if you like, the correct motive in this, which I think is equally important to bear in mind and it bears on the opening remarks I made is that we are held to account by the press. It is the press' job to hold us to account, and that is very that is a very, very important job that the press has, and therefore part of it is a doubt or worry in the minds, I think, of politicians that: are we seeking to curtail the people who, if you like, regulate us by regulating them? So I think you have these two, if you like, different motives which I think, in candour, were both at play. I think briefly there's a third motive, which may be for Labour politicians which a number of your witnesses have talked about, which I don't need to dwell upon, which is, if you like: would it be seen as a Labour vendetta for past issues, 1992 and all of that?
Q. To what extent do you give weight to the chilling effect argument, and coupled with that, I suppose, are the unintended consequences of regulation, which we've heard from one or two witnesses?
A. I'm sorry, Mr Jay, would you just explain what you're seeking from the question?
Q. Sorry, the chilling effect. That if you are not careful with regulation, you have a
A. I think that is always something that whenever we are scrutinising proposals, we must look very carefully at. I know it bears heavily on the remarks that, sir, you have made about the dilemmas you face as an Inquiry, but I don't think the fear of a chilling effect should be a reason for inaction. And I think, you know, it mustn't be used as an excuse for inaction.
LORD JUSTICE LEVESON
We have to make sure that we preserve what's good, and investigative journalism is a very good example, but there's no reason why we should not chill unjustifiable invasions of privacy that can't for one moment be justified in the public interest.
A. Precisely.
MR JAY
The second point you made under this heading we're still on page 06819: "The regulatory framework applying to the print media was ineffective either in preventing or providing remedies for abuses such as phone hacking. There was also insufficient enforcement by the police of the criminal law." Can I ask you to address this point: why is not effective enforcement of the criminal law an efficient and effective remedy for all of these matters?
A. This is the burden, Mr Jay, without personalising it, of the exchanges that were had with Mr Gove on the stand, which is about the nature of among others, if there's a crime admitted, then it should be dealt with. I must say, I take a slightly different view on this. You see, when I looked through the McCanns' evidence, which I read and it's absolutely chilling evidence, in my view, because I wasn't as aware of the comprehensive nature of the grievances that had been done to them and then I look at the code, I think: number one, accuracy, breached; number three, privacy; number four, harassment; number 5, intrusion into grief or shock; number 9, reporting of crime; number 10, clandestine devices and subterfuge. Not all of those things are illegal and nor are they a matter for the police. Indeed, we would not want the police policing a number of these issues, but it in no way makes up, removes, lessens the harm and grief that the McCanns felt adding to the grief they felt about the disappearance of their daughter, and so therefore I don't think this can be just put down to "let's just get the police to do their job" in the way that some witnesses have suggested.
LORD JUSTICE LEVESON
I'll ask you about my speeding analogy, which sometimes finds favour and sometimes doesn't. Can we really allow people to say that it's not the fault of the person driving the car in excess of the speed limit that he's speeding, but rather the fault of the police for failing to prevent it? With the best will in the world, the police will inevitably prioritise crime, and as the Deputy Assistant Commissioner Mr Clarke put it to me very forcibly, hacking is undeniably odious but it doesn't kill people, at a time when he was looking at terrorist threats.
A. But, sir, if I may, that is an additional point to the point I was making.
LORD JUSTICE LEVESON
I think it is.
A. I think it's very important that even with the police having all the resources in the world thrown at press illegality, which we would not want, there remains the McCanns, Margaret Watson, a whole range of people who have come before you, cases which I did not myself know about, the lady who was the assistant to Elle Macpherson you know the list better than I do things which were not necessarily based in illegality.
LORD JUSTICE LEVESON
Yes, I agree it's an additional point, but I'm collecting them together.
MR JAY
The third point you make here, Mr Miliband, relates to the concentration of media ownership in a small number of hands, particularly across different forms of media, which increase the importance of those proprietors in the eyes of some politicians: "It increased the conflict between the politician's duty to act in the public interest and his or her interest in remaining on good terms with the powerful media proprietor." Do you think that concentration of media ownership lies at the heart of the problem you've identified here, or are there other elements to it?
A. I think it is part of the problem and part of the solution, because I think that part of News International's sense of power without responsibility, which is what I believe it was, came from the fact that they controlled 37 per cent of the newspaper market before the closure of the News of the World, and I don't think we can divorce these questions of ownership, quasi-monopoly et cetera, from or at least concentration of power, better put than "quasi-monopoly" concentration of power I don't think we can divorce those questions from the behaviour of some parts of the press. And add in, by the way, the Sky platform, which then became and Sky. All that became an issue around BSkyB, but I think that is a big concentration of media power, and I think part of the arrogance and I use the word advisedly; in a way, it's a mild form of the word I might use came from that.
Q. Your fourth point maybe flows on from your earlier points: "The revelation of the relationships between some representatives of the media and some politicians has further undermined trust in both the media and politicians." That explains in part the state of affairs where we've now found ourselves; is that correct?
A. Yes, I think that's right. I think that is right. I think I tried to explain because it's complicated, this. At the beginning, there's the nature of why politicians maybe sought overly close relationships, but I think what's good I know you're going to come onto recommendations later but if I can make this point, which in a way makes the point more easily: what's good about the transparency that has been introduced in politics is it does it is a sort of test, really, which is: if you don't want this appearing in the newspapers, don't engage in the relationship. I think that's probably well, that's certainly in my view a good thing.
Q. Thank you. As you say, the recommendations which you begin to advance in the middle of this page we'll deal with at a later point, Mr Miliband, if that's all right.
A. Of course.
Q. I was going to go on now to your answer to question 7, which is at 08621, and to annex A, which is a list of your meetings, interactions with proprietors and editors, starting on 28 September 2010, which was, I think, two or three days after you were elected to be leader of the opposition; is that right?
A. That's correct.
Q. It's apparent from a quick scrutiny of the list that as with everyone, you see a whole range of editors and proprietors, not just newspapers who might be expected to support you.
A. (Nods head)
Q. Again, it's difficult to identify clear patterns. We can see, for example, that at the Labour Party Conference which immediately postdated your election, you saw Mr Wallace, first of all, and Mr Myler, Mr Harding, Mr Mohan. On the next page, page 05681, there's one phone call with Rebekah Brooks on 21 December 2010. On 3 March 2011, there was a phone call with James Murdoch. Can you remember what that was about at this distance?
A. Sure. He rang me I think it was on the day that the undertakings in lieu were being published by News Corp, and I think he rang me to brief me on what these undertakings in lieu meant.
Q. Were you surprised to receive his call?
A. Not overly surprised. I mean, I hadn't had any formal meetings or didn't have any formal meetings with James Murdoch haven't had during my time as leader of the Labour Party, but I thought it was a courtesy call, really, to ring me to brief me. Our position was well established on the referral to the Competition Commission that we believed needed take place, and that continued to be our position.
Q. Thank you. On 7 July 2011 this is page 06584 you had a phone call with Paul Dacre, editor of the Daily Mail. I think I'm right in saying that there hadn't been that many, if any, previous interactions with him. Again, we can see from the date that the phone hacking scandal had erupted, but can you remember the subject matter of that call?
A. I was phoning him, Mr Jay, because I was giving a speech the next day which said that the PCC, the Press Complaints Commission, was a toothless poodle that needed to be put out of its misery, and clearly I thought Mr Dacre had an interest in these issues, so I think I rang him and, I believe, the editor of the Independent, really just to give them an advance sense of what I was saying about these issues.
Q. Can you remember what his reaction was to what you told him?
A. I think it's fair to say he didn't agree with me at that point that it was a toothless poodle that needed to be put out of its misery.
Q. Fair enough, and there are further discussions with Mr Dacre, we can see, on 1 November 2011 and 1 December 2011. This is page 06586. The first appears to be a phone call. The second may well have been a meeting.
A. I'm sorry, just say those two again? 1 November and the other one was
Q. 1 December last year.
A. Oh yes.
Q. It is difficult to remember what might have been discussed on a particular occasion but in the event that you were able to assist us
A. I can. I think on 1 November, I was pitching an article for the Daily Mail following up the conference speech I gave about what I call responsible capitalism and how we change the way our economy is run, and we just had a brief chat about that. I don't think the article ended up appearing. The 1 December was just a more general chat about the issues and where Labour stands. That was, I believe, at his office. In fact it was at his office.
Q. Have you had discussions with editors about the issues which are concerning this Inquiry?
A. Yes.
Q. Those discussions may be private and confidential, in which case we needn't hear about them, but does a general message emerge from what that he say which you could help us with or not?
A. I think it's fair to say I know you're going to be hearing from Ms Harman later on that she has taken a whole series of conversations with editors, structured conversations, if you like, a sort of informal consultation process over the last few months. So the conversations I had would have been at the time of last summer, really, with the editors.
Q. Yes.
A. I think there's actually a lunch with Mr Dacre that you maybe omitted, where we will have no doubt discussed the toothless poodle question, to put it that way. Or have I misremembered
LORD JUSTICE LEVESON
25 July.
A. 25 July. So we will have discussed issues of how the press was going to move forward at that event, and I would have had some other conversations.
MR JAY
Yes. I'll remember to ask Ms Harman questions on that theme. It appears, from a cursory scrutiny of that annex, that if one wanted to count up contacts with News International papers between September 2010 and 14 July 2011, there are 15, including phone calls, but after that there's only one, and that's with Mr Harding, excluding one social interaction with Mr Myler, and sadly two funerals co-attended with Mr Harding. I don't know whether we draw any conclusions from that, but that's the pattern.
A. Do you want me to
Q. Yes.
A. I think it's fair to say I didn't have particularly good relations with News International newspapers before phone hacking, in particular the Sun. I certainly don't think it improved post phone-hacking, and our contacts have been much more limited. I do say I am, in no sense, though, saying because the Labour Party may have got itself into this position two decades back that somehow I'm not going to engage in relationships with the Sun newspaper. I am going to engage in relationships, as you would expect me to do, and indeed the Times.
Q. Thank you. Question 8
LORD JUSTICE LEVESON
Just before you move away from this schedule, could I ask a slightly different question? I'm grateful to you for compiling this. Do you think it's a good idea that this sort of record is kept and then made public, or is it just window-dressing?
A. It is definitely a good idea, sir, because I think that it acts as a look, it acts as a check, in a way, on what politicians do in the engagements that they have, and transparency is a good thing in this respect, and it means that you make a judgment not just about the invitation that you receive but the wisdom of accepting it. Now, I hope I would make those judgments in any case but I think it's quite a good reinforcement. I think there's a question about whether your list, I think, includes contacts with political editors. I think the list that previously the Prime Minister and I published, and indeed the Deputy Prime Minister, didn't include contacts with political editors. I think you have to make this proportionate because if you make it every single conversation with any journalist, you're going to get into very deep bureaucratic waters.
LORD JUSTICE LEVESON
And unnecessarily, because that there is a relationship between a politician and a journalist must follow because it's important for politicians to get their message across and for journalists to be able to challenge them and hold them to account.
A. Indeed.
LORD JUSTICE LEVESON
But the reason I ask the question is because I'm conscious of the policy and the way it's now working out, but I just wonder whether you fear there is a risk that it might just become subterranean, in the sense that it's no longer you who meet the editor but one of your staff that meets a rather more senior representative of a journal or press, and how you deal with that other than by cultural change.
A. I think those kinds of contacts go on, have gone on, will continue to go on, as we speak. Many, many of those contacts. I think that's inevitable and actually not a bad thing, as you imply in your question. It's a good thing, it's right, because I want people to know about our views, my views, and likewise other political parties would say the same. The good thing about this is if I decided to take a proprietor on a week's holiday with me, I'd have to, you know no, I'm not going to do that and I don't think they'd accept, but it's good backstop. It's a good backstop of transparency. I think that's the way I would put it.
LORD JUSTICE LEVESON
That is the point that I was making, that that is in reality its limit. It's an intellectual check and therefore it requires the rigour of understanding what lies behind it. It isn't just a piece of paper which therefore is exactly the same message that your staff will understand. Of course they must have contact to get the message across.
A. Exactly.
LORD JUSTICE LEVESON
But equally, being balanced, being appropriate and behaving proportionately comes into the whole message. Is that a fair reflection of what this sort of thing does?
A. (Nods head)
LORD JUSTICE LEVESON
That's really what I'm asking.
A. Very well. Indeed, sir, precisely.
MR JAY
On the theme of transparency, you say in answer to question 8, towards the top of page 06822: "It's the best and perhaps the only way to minimise this risk." So transparency is both necessary and sufficient. Is that a correct understanding of where you're coming from?
A. Just bear with me a second, Mr Jay, to remind myself of this. (Pause) Yes, but I hope when we come on to recommendations for the future, I can indicate what that I think on media policy, I have a somewhat subtle position on this. I believe that we should not take politicians out of media policy completely, but as I say in my evidence I believe it's question 5 there should be a higher bar in relation to politicians going against the competition authority's decision. So I suppose transparency is important. In relation to media policy, I have some specific myself and Ms Harman had some specific ideas.
LORD JUSTICE LEVESON
Are you returning to that, Mr Jay?
MR JAY
Yes.
LORD JUSTICE LEVESON
All right.
MR JAY
Question 9, now. This is the influence the media had on the content and timing of government's decision-making on policy and operational issues directly affecting the media. You say: "The particular need to avoid either the reality or the perception of undue influence being exercised by interested parties "Then moving on to the next paragraph: "I accept that Labour did at times become too close to News International. As Tony Blair has said, it was also because: 'We paid inordinate attention in the early days of New Labour to courting, assuaging, and persuading the media.'" Are you saying, though, that this remains in the realm of perception of undue influence or did it ever pass into reality?
A. I've obviously read a lot of the evidence you've had and thought a lot about this. I think the way I very specifically view this I believe the thing I'm looking for is the interview I gave to Andrew Marr, actually, just after the phone hacking Milly Dowler scandal broke, because I believe I said in that interview that we were too close, in the sense that it meant that when there were abuses by the press, we didn't speak out. That is my version of "too close", my view of the consequence of "too close". Now, different people the reason I say I refer to your other evidence is different people have used different phrases for that word. Mandelson said "cowed", Tony Blair said "unhealthy". There's a whole range of other adjectives that have been used. I suspect they may be more accurate as ways of thinking about this issue, that it was a sense of fear, I suppose, in some sense, or unwillingness or worry, anxiety about speaking out on those issues, issues that were affecting ordinary members of the public, issues where I think that if it had been any other organisation in another walk of life that had been perpetrating some of what happened, action would have been taken earlier.
Q. Yes. It's at page 06610 in the section of your interview with Mr Marr which was on 10 July. You define "too close". You said: in the following respect: that we didn't speak out on some of the major issues." Then Mr Marr followed that up and said that it was really because Mr Murdoch was too powerful.
LORD JUSTICE LEVESON
No, actually, that's Mr Marr's question, and Mr Miliband says actually, he says: "Indeed, because you're making a judgment about how you win support and also about what you can and can't do." But I think that's changed.
MR JAY
Do you feel, Mr Miliband you were a member, of course, of Mr Brown's government that even at that stage, Labour was too close to News International or not?
A. Well, I think the sense in which I think "too close" is what I mean by "too close" is really that we didn't speak out on these issues where there was increasing evidence of News International's behaviour. I think I'm right in saying that Rebekah Brooks and Andy Coulson went to the Select Committee in 2002, 2003, where this issue of payment to the police was raised, and, you know, I think look, the whole question of abuses by the press, by some sections of the press, was, if you like, a kind of compartmentalised, parcelled-off part of political debate, is the way I remember it. But it was certainly something people knew about and had a sense of, but it was just neither for government or for opposition was it a place you were going to go to. Partly, I think it relate to what you, sir, said at the beginning, which is that there had been a history of looking into this area and you know, without success.
Q. So even as late as 2008 to 2010, part of the thinking which may have underlay what Mr Blair said and which you have cited, was that carried through into the Brown government, in your view?
A. Well, I mean, the Brown government did Gordon talked yesterday about some of the things he did to change the lobby system and so on. I don't think that was really getting at the main issue. He said yesterday he didn't feel he had a mandate to deal with the main issue, but that issue was around and was off the table, basically.
Q. I've been asked to put to you a couple of questions, really, in relation to the Brown period, if I can so describe it, by another core participant. The first question is this: were you aware of off-the-record briefings against Tony Blair and other government ministers by, in particular, Ed Balls, Charlie Whelan or Damian McBride?
A. Let me answer that very specifically. Ed Balls, no. Charlie Whelan left, I believe, in 1999 left the government in 1999. One of the reasons he left was because of his style of operation. I can't point you to direct evidence but I would say that one of the things he did was he briefed, including potentially against people within the government. On Damian McBride, when I was a Cabinet Minister, I did raise a specific concern that I had with Mr Brown, I believe in September 2008, about some of Mr McBride's activities.
Q. Okay. That's as far as I think I need to take that point. Did you feel, looking at this period, that the government, perhaps in particular Mr Brown, was obsessed with the news in the press or not?
A. I think the late Philip Gould coined a phrase "the permanent campaign". I think it was his phrase. And modern politics is the permanent campaign. 24/7 media I think in a way makes the permanent campaign part of the DNA and I don't think Mr Brown was any more obsessed about it than Mr Blair or anybody else, really.
Q. Moving forward then to the period when you were in opposition. The piece in the New York Times, which has attracted a lot of attention in this Inquiry, came out, of course, on 1 September 2010, which was 24, 25 days before you became leader of the opposition.
A. Yes.
Q. Were you aware that Mr Brown had written, I think, to the Cabinet Secretary seeking an inquiry following the publication of that piece?
A. This was after he stopped being the Prime Minister?
Q. Yes.
A. I think yeah, I must have been aware of it. I must have been aware of it. Well, now I say that I definitely became well, let me just refigure my memory here. What I I knew after the election and you sent me something in the bundle about this, but I'm pretty sure it was after the election that Mr Brown had discussed having a public inquiry before the election, as I understand it, but I believe I found that out after the election. I certainly can't recall having conversations with him about it before the election. I remember his speech in the House of Commons where he talked about the inquiry but that was July. I could well have known about it. I don't know whether it was public at the time. Was it public at the time?
Q. It wasn't public at the time. The consideration given to a public inquiry before the election took place in March 2010.
A. Right.
Q. The Treasury Solicitor was involved and Sir Gus O'Donnell, as he then was, was involved?
LORD JUSTICE LEVESON
Which election are we talking about? Mr Miliband's election or the General Election?
MR JAY
The General Election.
LORD JUSTICE LEVESON
I think Mr Miliband was talking about his election.
MR JAY
I think we were talking about that event
A. Similar elections.
Q. Mr Miliband found out about subsequently. But then there was a further request Mr Brown made in September I think it was 7 September 2010 which you may or may not have known about?
A. I don't think I did know about it then. It's quite hazy, but I don't think I did know about it.
Q. Going back to the New York Times piece, of course, it was in the middle of a very full-on period for you, but did that piece sort of come across your radar at the time or not?
A. Yes. In fact, I have an article from the Guardian on 3 September, where I put which has words from me in it about the allegations, and perhaps not surprisingly, because of the nature of the allegations, my words were about the Prime Minister and Andy Coulson and what the implications were for him. So I don't think I read the piece. I think I read the Guardian follow-up. I remember being in Warwick and Leamington when I found out about it, so I must have been on a campaign tour, and I definitely clocked the sort of Andy Coulson part of this.
Q. But it didn't cause you to ask for a public inquiry or anything similar at that stage?
A. No.
Q. Moving forward to the next year, a core participant has asked me to put to you the News Corporation summer party on 16 June 2011 when you met Rupert Murdoch. The question is: did you raise the issue of phone hacking with him or any other senior News Corporation or News International executive?
A. I think I say in the answer to question 15, actually, just for convenience I explain this. I say I recall a relatively short conversation with Rupert Murdoch for a few minutes at the summer party. I believe it was about US politics and international affairs, and I believe I should have raised the issue of phone hacking with him. I didn't, which is something I think I said last summer. Why do I say I should have raised it with him? Because I think in retrospect and it's easy to have hindsight I'd called for an inquiry or review, I think the first leader to do it, in April. There needed to be an inquiry separate from the police inquiry, but I think it was too much acting as if it was business as usual with News International at that stage. Things would, of course, change very soon after.
Q. Can you remember approximately how long you stayed at that party?
A. I can't remember. I really can't remember.
Q. Okay. Those are the questions I've been asked to put to you on that. There's one final question from I think it's the same core participant. He draws to our attention a text message which Mr Michel sent to Mr Adam Smith on 2 February 2011. We can bring this up on the screen for you. It's page 12761 in the MOD3 file. There we go. It says: "I did tell the Labour leader what the core of our thinking was Just whether you can assist us
LORD JUSTICE LEVESON
Hang on, you'd better just tell us where we are in the chronology. This is 2 February, so what's happening at this time?
Q. The bid has not been referred to the Competition Commission. I think it was public knowledge at that stage that undertakings were being considered, but the undertakings themselves were not formally announced to Parliament until 3 March 2011, if that helps. It may be that you have no recollection at all. It may be you do recall
A. I didn't I don't think I met in fact, I am pretty sure I didn't meet Fred Michel or have a phone call with him. I think it would have been the case that he definitely was having meetings with our Shadow Culture Secretary, Ivan Lewis, who was meeting all, you know, opponents of the bid, proponents of the bid, so I don't know if that's what it refers to.
LORD JUSTICE LEVESON
One has to be a bit careful, because sometimes Mr Michel referred to people as recipients of information or the providers of information when actually he means a member or indeed a comparatively junior member of that person's staff.
A. (Nods head)
MR JAY
Well, we simply don't know. I've been asked to draw that to your attention and you've addressed it, Mr Miliband. So that deals with those items. May I move forward in your statement, please, to question 13. The question is about Mr Tom Baldwin. He was recruited by you in December 2010 as one of your two communications advisers; is that correct?
A. Correct.
Q. Can you tell us, please, about the recruitment process in a nutshell. Who is primarily responsible for it and how was it undertaken?
A. Well, it was a sort of as these things tend to be, a word-of-mouth process. My then Chief of Staff and myself, we were looking for people who could assist us with the media. What were we looking for? We were looking for people who had a knowledge of the political lobby, because you've heard, I think, about the political lobby and the nature of the lobby, and that's very, very important, I think someone who understands the rhythms of the lobby, somebody who could project stories or people who could project stories, because we hired two people and then thirdly and this was very important somebody who was in line with my political sympathies, because I think it's not just a sort of technocratic job. I became leader in September and I believe they were both Bob Roberts, who was from the Daily Mirror, and Tom Baldwin, were hired in December, so it must have taken us a couple of months or so.
Q. He, as we know, worked at The Times for 11 years between 1999 and 2010. To what extent was that history relevant to his merits, as it were?
A. It wasn't really particularly relevant. I mean, it was relevant that he'd been a significant political reporter. That was certainly relevant, as I say, because I wanted somebody who knew the rhythms of the lobby, knew how the lobby worked, had relationships in the Westminster lobby, but he wasn't somebody who had particularly close relationships with executives at News International, for example, Rebekah Brooks and so on.
Q. Lord Ashcroft, in a book called, "Dirty times, Dirty Politics", which was published in 2005, didn't, I think, make any specific allegations against Mr Baldwin, although suggested that he might have been involved in some way. Was that specific issue one which you discussed with Mr Baldwin?
A. Well, it's complicated, this, because when I hired Mr Baldwin, Lord Ashcroft hadn't yet made the allegation the specific allegation that he would later make, that Tom Baldwin had blagged his way, if that's the right term, into Lord Ashcroft's bank account. That was an allegation he made the following July in a blog, once the whole Milly Dowler situation, the Andy Coulson the heat being on Andy Coulson. But once that all arose, when he did make that allegation, I did, of course, ask Tom Baldwin about it. He denied it. My Chief of Staff spoke to the former editor of the Times, the person who had been his boss, Peter Stoddart, who also said he believed the allegation was untrue.
Q. So at the time you hired Mr Baldwin in December, can you remember specifically what questions you asked?
A. I would have asked him: has he done anything which would, if you like, bring the Labour Party into disrepute, bring myself into disrepute, bring himself into disrepute, in relation to the specific job that I might be asking him to do.
Q. Okay, and you've covered what happened consequently. Can I ask you, please, on a slightly different issue at tab 10 in our bundle, there's a an email which Mr Baldwin had a hand in and which was leaked. It's dated 27 January 2011, making it clear that the issues in relation to the BSkyB bid, which one might call the plurality issues, and the phone tapping issue should not be linked. Was that something which matched your own assessment at the time?
A. Yes. It was a position that I had agreed with our relevant people on this issue. Why do I say this and why did we take the position that we did? It was because we felt we had two robust positions: a robust position on phone hacking, which is that there should be a police inquiry, and a robust position on the BSkyB bid, because on 25 January, we had called for it to be referred to the Competition Commission. At that point, Jeremy Hunt was pursuing the undertakings in lieu. We felt we had a robust position. We were in a position where Labour front benchers were becoming apparently the victims of phone hacking and lots of them were being bombarded with questions about this. This is essentially what we call a line to take for people, about the fact that at that point although later we would change our view after the Milly Dowler revelations at that point, we didn't believe the issues were linked.
Q. But your view changed in July 2011; is that correct?
A. Yes, it did.
Q. In relation to what happened in 2011, we perhaps shouldn't start in July; we should start in April. You collect together the key events under paragraph 14 of your statement, but we can probably confine ourselves to the highlights in the annexes themselves, which are under tab 3 in this bundle.
A. I'm sorry, Mr Jay, I'm being slower than you. It's annex 3, is it?
Q. It's tab 3. It starts with annex B1 and there are a whole collection of annexes
A. Yes, I'm with you now. Thank you.
Q. The first relevant event is 19 April 2011, when you asked for a review after the police inquiries had been completed and any criminal cases that flowed from it. What sort of review were you thinking of at that stage?
A. I think I wasn't entirely sure. At that stage I felt I felt that the allegations about hacking I can't remember what had been exactly had transpired in the time previous to that, but the welter of allegations around hacking meant that simply saying, "Let's leave it to the police" felt to me to be inadequate, and I thought it was right to speak out on this and, if you like, up the tempo of our position, because I thought that things were getting to a stage where something more needed to be said about what would happen after this. That's why I said what I did, and I wasn't quite sure whether it would end up being a review or an inquiry but I felt a marker needed to be put down that this couldn't just be: "Well, let's have some people prosecuted and that will be the end of it."
Q. But they would naturally have to wait, it was your then thinking at least, until the police enquiries and prosecutions had been completed?
A. Sure, sure.
Q. Can I ask you: at the bottom of this page, 06590, you said that your clear view was that self-regulation continues to be the right thing. But were you arguing there, in effect, for a maintenance of the status quo?
A. I think I wouldn't use that phrase now. I think that's partly because my thinking as evolved, frankly, and I think it's the wrong phrase. I much prefer the phrase which the Prime Minister used in Parliament and I know other people have used it too: independent regulation.
LORD JUSTICE LEVESON
Yes. One has to read those two sentences together: "My clear view is that self-regulation continues to be the right thing. We don't want the government regulating the press."
A. Exactly.
LORD JUSTICE LEVESON
So the point you're making is that you're talking about a binary option.
A. Exactly.
LORD JUSTICE LEVESON
Either it's the government or itself. Actually, I think you're right. I think that the language has moved on, and correctly so.
A. I think what I was worried about thank you, sir. I think, Mr Jay, what I was worried about was looking like I was saying that the outcome of this should be government regulation of the press, you know, in a way that could be misconstrued.
MR JAY
Certainly. On 05 July 2011, you did call for a public inquiry. This is at page 06593, towards the end of that interview, which was with Chris Gibson of ITV. It's in the middle of page 06593. I hope you have the same pagination?
A. I have, thank you.
Q. You say: "Yes, there should be a public inquiry. I think it probably will have to take place after the police inquiries are complete." So that was your first call for what, in the end, has become this Inquiry. There was an interview with Kirsty Wark for BBC Newsnight on 7 July. That starts at 06599. I just ask you to deal with one point she raised with you. At 06600, level with the upper hole punch, she suggests that you were slow off the mark: "I mean, on Monday night's Newsnight, Tom Watson said that you were as guilty as Clegg and Cameron on not only letting the Dowler family down but simply not pushing hard enough on this whole issue. You were running to catch up." You obviously gave an answer then. Is your answer the same now?
A. Yes. I was too slow to speak out. I think it's worth saying, if I can take this opportunity, Mr Jay, that that moment of what was significant about that moment, that interview I did, was not actually calling for the inquiry, important though the inquiry is to the long-term future of the press in this country; it was calling for Rebekah Brooks to go or consider her position. I knew at the moment that I was, as I said in my opening remarks, crossing a Rubicon because this would be seen by News International as pretty much an act of war. So I think in retrospect, I would have preferred if I'd said "more earlier". We've already talked about the inquiry that I called for in April and what I did in July.
Q. She also asked you about Hayman Island trip, and you said: "What I say to you is this: that I learnt lessons from that episode." What lessons precisely are to be learned from that episode, if any?
A. I think transparency is part of the answer. I think I say it's not about who you have dinner with or who you meet, but it's important to speak out without fear or favour, and I think that's the most important lesson. There should be no interest too powerful in this country, whether it's in banking or in the press or anywhere, that politicians don't speak out about if they think there is wrongdoing. Not to muzzle the press, but because, you know, that is the job of democracy, is to speak out. That is what the people elect us for and that is the most important less that I learned from all this.
Q. Thank you. By 8 July in your speech, you were coming out with some ideas for putting the PCC out of its misery. This is your toothless poodle speech. You still use the terminology "a form of self-regulation", page 06607, but when we look at what the new body should possess by way of its attributes, you're looking for far greater independence, proper investigative powers I know you deal with all this in the recommendations section of your statement, but are we moving there, in your evolving thinking, towards the sort of position you are at now?
A. Yes, and in a way, the reality is that at this moment we are probably three or four days after the initial hacking revisions about Milly Dowler, me speaking out, the game having dramatically changed, in my view I felt it was important to start to give some interpretation to where this was all going to go because I was worried, at that point, I must say, that there would be a big hullabaloo and then people would all forget about it, which can happen with these things. So I thought it was important to put a marker down. I don't say that every dot and comma of the proposal is necessarily right, but I think the broad picture is similar to where I would be at the moment.
Q. Thank you. There was a longer interview with Mr Andrew Marr, I think on his Sunday breakfast show on 10 July. It starts at 06608. It speaks for itself. There's one point, though, that I would like to deal with. At the bottom of 06609, Mr Marr's question suggested that you may have been warned off the line you were taking by colleagues within the Labour Party. I wasn't quite sure what your answer was to that question. Were you being warned privately that this was something you shouldn't be doing?
A. No, that's not my that's not really my recollection. I mean, certainly it's the case that what I did was controversial. What I did on that Tuesday morning, I believe it was, was controversial. Actually, as it so happened, I gave the interview about Mrs Brooks and about the inquiry and all of that, and then I went to the Shadow Cabinet. There was actually pretty clear I would say pretty much universal support at the Shadow Cabinet for the idea that this had now got to a stage where, you know, really our position needed to significantly be strengthened and hardened up. I'd actually already done the interview saying that, as it turned out, so I think there was broad support for what I was doing.
LORD JUSTICE LEVESON
Mr Miliband, we have a break for the shorthand writer, so we'll just take that. (3.12 pm) (A short break) (3.23 pm)
MR JAY
Mr Miliband, I owe you an apology. I mentioned to you beforehand that I would raise this at the start of your evidence but I then omitted to. As many have already correctly observed, your wife is a member of the set of chambers where I am joint head. We have not, however, previously met outside the circumstances of this Inquiry.
A. Correct.
LORD JUSTICE LEVESON
I ought to make it clear that I've known that for some time.
MR JAY
Yes. There's a misunderstanding about it. We are, of course, self-employed in independent practice. We are not partners and people perhaps need to understand that.
A. She and I were partners at one point, but we're now married, actually.
Q. Page 06830. You pick up on a number of points, most of which we've already covered
A. I'm sorry, Mr Jay, would you mind
Q. Sorry, this is question 15, page 06830, where we ask you to address specific meetings and interactions with the two Murdochs, and you've covered those. One question, though, in relation to the next page, top of the next page. You say you had a conversation with Mrs Rebekah Brooks on the evening that Vince Cable was stripped of responsibility for the BSkyB bid. Can you remember in particular what she said and then what you said in reply?
A. So I obviously don't have Rebekah Brooks' number or anything, so I think through the political editor of the Sun, is my recollection, Tom Newton-Dunn, she requested a conversation with me, I believe that early that early evening that day. I think the conversation took place later on that evening. I was quite surprised to be called by her, because we didn't have a particular kind of relationship like that. She was obviously very annoyed about Vince Cable and what he'd done. I basically said that we also believed that Vince Cable should no longer have responsibility for this. We'd actually called for Vince Cable to resign earlier on that day because we thought it just called into question his appropriateness, I think was the phrase that John Denholm, Shadow Business Secretary, used, but we were in favour of a fair process, I basically said. It was a relatively short conversation, and I think I talked to her again at the News International party and maybe one other event, but that was the only time she phoned me.
Q. At that stage, we know she wasn't the editor of the Sun; she was the CEO of News International.
A. Sure.
Q. It may be not possible for to you say, but could you divine or discern what the intention was behind her wanting to speak to you?
A. If I'm honest, I wasn't very clear about it. She rang, very annoyed about what was happening, and I didn't beyond that, I wasn't clear there was much greater purpose to the call. The next day, by the way, I think it was, we then called into question whether Jeremy Hunt was an appropriate person to be in charge of the bid, reflecting our view about what fair dealing meant.
LORD JUSTICE LEVESON
In reality, she was trying to obtain political muscle for the argument she wanted to develop, presumably, and trying getting the opposition on side to do whatever was appropriate.
A. Sure.
MR JAY
The future now, Mr Miliband. You've seen, I hope, the draft criteria for a regulatory solution, collected under tab 7 of the bundle. These outline some general principles of application for what should provide an effective and credible system, and this, as it were, underpins or informs any recommendations the Inquiry might make. Against that backdrop, I come to section 5 of your statement on page 06819, at the point where we really left off, slap in the middle of the page. I'm going to invite you to elaborate each of these points as you see fit, Mr Miliband.
A. Thank you, Mr Jay. I think your draft criteria are definitely a very good basis. I haven't done a sort of big textual analysis of them, but it seems to me that they're in completely the right direction. Let me try and simplify, in my own perhaps more layman's terms. I think that what we need on redress is something which is independent of the press, of politicians, something which is comprehensive, covering all newspapers and indeed magazines and indeed there's clearly a question about Internet organisations, not your sort of individual self-employed Twitterrer or something but I think there's clearly an issue. Thirdly, something which is accessible. Accessible, providing fast-track justice or redress for individuals. I think they're the main I go into another I talk about investigative powers in my evidence, but they're the main and ability to enforce corrections, which I think is important, but I think they're the main things that I would be seeking from a system, a way forward.
Q. Is it your conception of this system that it should be voluntary or contractual, or would you include within contemplation a statutory architecture or underpinning?
A. This comes to the nub of the issue, doesn't it, Mr Jay? I've read Lord Hunt's, David Hunt's, evidence to you and indeed thought a lot about it, as has Ms Harman, as she will say. My anxiety about Lord Hunt's approach is whether it can achieve comprehensiveness and independence. I think it's admirable what Lord Hunt has tried to do, because I think he's moved at fairly short order to try and develop a better system for the future. Where does that take me to? It takes me to the following position: I'm not for statutory regulation of content, as I indicated earlier, enforcement of balance or anything like that. I think there is a pretty strong case in fact, I put it higher than that. I haven't yet seen a way forward that can get the principles that I have outlined without some kind of statutory, I would say, support or one way of putting it is statutory support for the system. Now, I think it would be very important in any such system to make sure that I mean, it's very simple, really that you're setting up an independent body whose job it is to enforce some version of the code, and I think this has come up in your evidence I think it would be very important to insert in any bill constitutional safeguards on the freedom of the press. Very, very important.
LORD JUSTICE LEVESON
The example that I have given to a number of people is the way in which the Constitutional Reform Act in section 3(1), I think, identifies the constitutional independence of the judiciary. It's quite difficult to see how anybody could judicially review a decision on the basis that it didn't comply with that statutory exposition, but equally, the purpose of it seems to me to be to enshrine the recognition of the importance of the free press, an independent press, to assuage the concern that has been expressed that any statute can be very, very simply amended and so suddenly become Zimbabwe, is how some people have put it, perhaps not using that country as an example, although it has been used. Does that reflect
A. Yes, it does. I think I want to take heed on this issue, because I think it is a very legitimate fear that Lord Hunt has expressed and that members of the press have expressed, which is that there's two possible objections to the approach I've outlined: on the merits objections, which we can discuss, and, if you like, a slippery slope argument. What I thought was interesting about Lord Hunt's evidence was he seemed to me I don't want to mischaracterise him to be more inclined to the slippery slope argument, ie once this gets into Parliament, goodness knows where it will end.
LORD JUSTICE LEVESON
He said in terms there were members of both houses who would want to use the opportunity to curtail the freedom of the press in other ways.
A. I think what's interesting about that, sir, is I think it maybe offers a chink in light in this, because as leader of the Labour Party I have set out my very clear position about the limits of what I would want to see. I would not countenance this becoming a licence for some massive bureaucratic assault on the press. I make this point also: that actually there's a defamation bill currently before the House of Commons. The house of Lords, I believe, it's starting in. There will be a Communications Act. These also could lend themselves to people putting forward ideas which would be problematic. But the reason I think there's a chink of light is that people like Lord Hunt, who I think are very well motivated in this, need reassurance from people like myself that we recognise and we are acutely conscious of this question of the limits of any statutory I think "recognition" is another word that is used and that you used, sir, and I am very conscious of it.
MR JAY
Your second main theme, towards the bottom of this page, is the issue of media ownership matters, including cross-media ownership rules. May I invite you to elaborate those issues, please?
A. Yes. This proceeds, Mr Jay, from my very simple observation that part of News International's power and lack of accountability and arrogance came from its share of the newspaper market. I think just at the very starting point of this, I don't believe that one person should continue to control 37 per cent or it's now 34 per cent, post the Sun on Sunday 34 per cent of the newspaper market. My strong instinct is that's too much, and I would like to see I submit that I would like to see the Inquiry looking at the question of whether we should have lower limits. There's a question about where these limits should be set. I should say we should have no worries of someone owning up to 20 per cent of the newspaper market. I think there is then a question of between 20 to 30 per cent. Where would you set a limit? That's where I'm coming from, because I think it's good for our democracy to have plurality in the market. I think then there's a secondary issue about what we do about cross-media ownership, and I think there to sort of paraphrase a well-worn phrase, I think when we look at the Communications Act of 2003, it now looks like a sort of analogue act in a digital age, and I think it will therefore need to be updated anyway, and I think there's then a question about whether you should have an overall limit about how much control one organisation has on the market. My aim in this I want to be very clear about this. My aim is not to stifle one particular organisation or another. My aim is plurality and a sense that there is a sort of that one organisation does not exercise overweening power.
LORD JUSTICE LEVESON
Can I ask you to reflect upon your answer in this way, Mr Miliband? You are the first of a very few people who I can legitimately blame, if that's the right verb, for the breadth of the terms of reference of this Inquiry. I have to get on with it, and I am, but I am concerned about the extent to which it is appropriate for me to start to opine about percentage market shares, because that involves all sorts of competition issues which would require themselves quite detailed analysis
A. Of course.
LORD JUSTICE LEVESON
both in fact and in law. I said earlier today that I wasn't, either in the bar or on the bench, a media lawyer, although I'm picking that up and have done some during my career. I'm certainly not a competition lawyer. I wonder what you would say and I've not reached a view about it, but just for you to comment if the limit of my aspirations in this area was to set out the concerns that various witnesses have expressed, and the counterbalancing arguments, and suggest appropriate authorities examine the position.
A. (Nods head)
LORD JUSTICE LEVESON
I'm not trying to shirk my responsibility, but neither am I trying to bite off more than I could or should legitimately take on.
A. Obviously it will be for you to decide the way forward, and I think I would totally understand your instincts on this. I don't have the terms of reference to hand.
LORD JUSTICE LEVESON
Well, the terms of reference I can get them for you now. One moment. There is no doubt that they do include cross-media ownership. One moment. (Pause) It's to inquire into the culture, practice and ethics of the press, including contacts and relationships between national newspapers and politicians and the conduct of each of them, contacts and the relationship between the press and the police and the conduct of each, the extent to which current policy and regulatory framework has failed, including the related issue of data protection, and the extent to which there was a failure to act on previous warnings about media misconduct. So one would have to think about what one meant about policy there. But then it is certainly: "To make recommendations for a new and more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media and its independence, including from government, while encouraging the highest ethical and professional standards." And here's the one that bites: "For how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, government, the prosecuting authorities and the police." So on a proper construction, I'm required to make recommendations for how concerns should be addressed, rather than necessarily to say, "This is the answer", but I'm not trying to construe these terms of reference well, I am, actually like a statute, because I don't want to exceed my brief.
A. Of course.
LORD JUSTICE LEVESON
But I want to provide something that's meaningful and helpful, which is why I raise with you whether that approach and I'll have to think about it quite a lot would be sufficiently helpful to keep the ball in the air in relation to this issue.
A. Sir, I can just submit to you that I would request your consideration of these issues and you will have to come to your conclusions. I understand your caution about the complexity of some of these issues and the role of regulators. I just add that it might be helpful for you and I'm sure Mr Cameron and Mr Clegg will not mind me saying this that part of this being inserted into the terms of reference arose out of discussions that we had in the run-up to the publication of the terms of reference, which Mr Cameron helpfully and graciously offered, and I think it was a view of the I can't speak for them but I think it was the collective view that it was important that this limb of the terms of reference was there.
LORD JUSTICE LEVESON
Yes, Mr Miliband, I know, because I was on the receiving end of different versions of these terms of reference which grew rather like a mushroom cloud.
A. I may have been partially responsible for that, sir, so I apologise.
LORD JUSTICE LEVESON
I have no doubt you are, yes.
MR JAY
The third point you make by way of general recommendation relates to whether decisions made about competition and plurality issues should be left to politicians or should go to regulators, and you have a view about that, I think.
A. Yes. I think this is the biggest sort of the clearest dilemma. There are very difficult issues we face, but this is a very clear dilemma between, on the one hand anybody reading sort of accounts of the way that these decisions are made and the sort of pouring over them that takes place would say, "Well, isn't it just easier to get politicians out of this?" If I think of myself as aspiring to be Prime Minister, I think: do I really want this headache of these decisions being made and then people thinking: has the right decision been made? But my answer to that is: the right course can be followed and the right standards can be upheld by politicians. I believe that significant decisions that we made in government showed that, and I think there is a public interest in keeping the politicians in, because I think that politicians do need to make you know, in the end, we are elected to represent the public interest and regulators have a very important role. My suggestion on this I have a concrete suggestion on this is that I believe that there is a case for saying that if a politician wants to depart from the recommendations of the Competition Commission or Ofcom, whoever it is, that decision should be challengable by appeal. So in other words, if I'm the minister and I get recommendations from the Competition Commission that a bid should be blocked or should go ahead, and I take a different view, then there should be recourse to the Competition Appeals Tribunal to say not simply was it a reasonable decision but on the merits. Now, that's the best I can come up with: to give politicians a role, because I think it is important that role is it maintained, but provide, if you like, some sort of sense of constraint, a greater constraint or higher bar.
LORD JUSTICE LEVESON
That's actually given the decision to the regulators.
A. Ultimately.
LORD JUSTICE LEVESON
Because you've made the Competition Appeal Tribunal. Another way of doing the same thing would be to say that if there is to be such an issue and I'll come on, because I want to share with you some concerns about this if there is to be such an issue, then policy considerations and the view on policy could be set out in writing by the minister, publicly available "These are my policy views" and fed into the decision, and then it's just appealed in the normal way, which actually is broadly it's just a slightly different way of saying the same thing, I think, because of your right to appeal to the Competition Appeal Tribunal on the merits, not just on whether it was a reasonable decision. I don't ask you to commit yourself, and I'm not committing myself.
A. Mm.
LORD JUSTICE LEVESON
But I understand the point that you have made. The concern that I have is this: I have sat on many cases of judicial review in areas where I have a perfectly understandable personal reaction. It doesn't matter what it is, whether it's to do with wind farms or nuclear energy or whatever. Arms sales was another one that I was involved in sitting judicially. I am able utterly to ignore my personal views and to decide the issues that I have to decide according to the law. That's the oath I took and I've not found it difficult to do that. But I am not affected by or likely to be affected by a decision that I make, so if somebody wanted to create a wind farm in the field next to my house, where I might be personally affected, I would recuse myself.
A. Of course.
LORD JUSTICE LEVESON
Equally, if you were the MP for a constituency where there was some issue arose and you were the minister, then you would say, "Look, I can't deal with this, I am involved", and I understand that. We can all follow that. What concerns me is what more than one person has said about an issue such as one involving the press, that actually, you all have views. They may be pro, they main be anti, but they actually do impact on you for all the reasons we've talked about during the course of the afternoon, all the time, and therefore, for those questions, it becomes particularly difficult to step outside the day-to-day views that you hold and which might impact on you because of the reaction of those that are going to be affected, in a way that isn't difficult, for example, for a nuclear power station decision when you were the Secretary of State responsible for those decisions. I have not necessarily articulated that very clearly, but I hope you've understood what I'm asking you.
A. I have, sir. Let me make two points, if I may, in response. I think the first point is that I think it's worth me saying just more clearly why I believe that the politicians' role there's a case for a substantial role remaining for politicians. I think regulators are appointed to make technocratic decisions but I think that there are times when regulators will take a particular I hesitate to say this, but sort of ideological view about what the meaning of the law is I know this is a very tricky area take a particular slant. And I think therefore the minister, as the arbiter of the ultimately of the public interest should have a right to say, "Well, hang on a minute, I think this regulator's gone down the wrong road on this. I think they've misunderstood what actually the law demands." If I can give a very specific example, which is perhaps a very admittedly an unusual example. In the end, why did the BSkyB decision go down? Well, we put a motion in Parliament. Now, I'm certainly not recommending that as a way forward for these kind of decisions, but to some extent, that was motivated by a sense of where the public interest lay. That is the first point that I would make to you. Secondly, I do believe it is possible for politicians to of course politicians have views, but I do believe it's possible and you've heard torturous testimony from people like Tessa Jowell on this to really try and crunch down and execute the function in a way that respects the quasi-judicial nature of their role.
MR JAY
Thank you. The last point and this relates to resetting the relationship between politicians and the press, and it may be you've covered this already is that you urge more openness and transparency about dealings, and I think that probably covers what in practical terms you believe is appropriate in this domain; is that right?
A. I think it does, Mr Jay, and if I may, I think that I reinforce what I said at the outset, which is that I think that there are no blank cheques here, but I think that the default position for us, as politicians, must be to try our very, very hardest to use the recommendations that this Inquiry eventually makes to provide a framework for the future and not to become an academic textbook.
Q. Thank you. Are there any other matters you feel we haven't covered? If not, that concludes what I have to ask you.
A. Thank you very much, Mr Jay.
LORD JUSTICE LEVESON
Mr Miliband, thank you very much for your time.
A. Thank you, sir.
MR JAY
The last witness today is the Right Honourable Harriet Harman. MS HARRIET HARMAN (affirmed) Questions by MR JAY
MR JAY
Your full name, please?
A. Harriet Harman.
Q. You've kindly provided us with a statement dated 16 May of this year. Are you content to tender this to our Inquiry as your formal evidence?
A. Yes.
Q. In terms of your career, currently you're deputy leader of the Labour Party, Shadow Deputy Prime Minister and also Shadow Secretary of State for Culture, Media and Sport; is that right?
A. Yes.
Q. You've been a Member of Parliament since October 1982 and you held front bench positions in the previous government; is that right?
A. Yes.
LORD JUSTICE LEVESON
Ms Harman, thank you very much indeed for your assistance. I'm conscious that you hold the brief that you do hold but I'm grateful to you for adding your perspective to that of Mr Miliband.
MR JAY
Of course you're also Queen's Counsel. We're really here to talk about the future, but in terms of the past, you say in paragraph 11 of your statement and I paraphrase that there shouldn't be a temptation to settle old scores. Both sides should be honest about the past and leave any baggage they may have behind. Are there any particular lessons, particularly if we look at the period 1997 to 2010, which you feel are relevant for our consideration?
A. Well, I think that the this Inquiry provides the opportunity for a real stepping back and for a recognition that actually politicians of all parties have got a great vested interest in a free press in a democracy, and that part of that obviously is making sure that the press is strong because it comes to its work with clean hands, but I also feel that it shouldn't be the press versus politicians, and that we have the opportunity of achieving a settlement which moves beyond the immediate turbulence that has occasioned the setting up of this Inquiry, because we're talking about things that have probably been wrong for decades. We now have the opportunity of this Inquiry, but we need to end up without vanquished or victors and to achieve a cross-party working together, and also to have the engagement and involvement with the newspaper industry, broadcasters, but also campaign groups, and I think that's what this Inquiry provides us with an opportunity which we have not had before to do. So that's why I feel it's a great responsibility of all of us to try and achieve that outcome, not to make smart points or score any victories. I don't think that's what would be in the public interest.
Q. Thank you. I've been asked to raise with you this small point in relation to the 1992 Labour Party manifesto, which did include pledges, as you rightly say in paragraph 7, in relation to Calcutt and also in relation to concentration of media ownership. You say in that paragraph: "We felt that because we made these pledges and because we were committed to introducing a robust press complaints system and tackling media monopoly, the Murdoch press was determined to stop us getting into government." Wouldn't it be fair to say that there were other reasons the Murdoch press had against the Labour Party manifesto in 1992, which certainly contributed to their thinking?
A. I'm sure there were, and I'm sure there were many things which contributed to us not getting elected in 1992 over and above the bombardment that we'd received from the Murdoch press, but we felt that since, I think, Neil Kinnock first put forward those arguments in a speech in 1998 that that's when the bombardment sort of started, and that kind of felt part of the climate in which we understood where things were. So that's why, you know, I did agree with what Tony Blair said in his evidence to you and what we understood to be at the time.
Q. Certainly. I think you might have said 1998.
A. Oh, 1988.
Q. I may have misheard you.
A. Yes, 1988.
Q. May I sort of turn that around and say: well, those manifesto commitments which we saw in 1992 were singularly absent in 1997, and that was the reason for their being absent, which was not to estrange or inflame or otherwise discourage the Murdoch press. Is there force in a that observation?
A. Well, I think it goes back to what Tony Blair said in what became known as his 2007 "feral beast" speech, is that we, after all those years in opposition and believing that we wanted to get into government to do things on the health service and on unemployment and on whole range of things, that it felt necessary to do more assuaging, neutralising, courting. That was the decision that was taken, and that did feel like it was necessary. But I think that we're in a very different situation now. Because of the appalling revelations, I think that that's broken open a situation where we can have a discussion with editors of newspapers across parties that we haven't had the opportunity to do before and I'm very keen that we should not lose that opportunity, and we all have to try and make sure that that happens, but with the framework of this Inquiry. It wouldn't be possible without the framework of this Inquiry.
LORD JUSTICE LEVESON
Of course, there's a risk, isn't, there, that the press will combine in the same way that it did after Calcutt and, as it were, circle the wagons?
A. One of the reasons why I've been talking to individual editors is to, in a way, encourage them to circle the wagons, but around a set of principles which everybody can agree on, which is that there does need to be redress for people where the code is breached. I think most people think the code is fine. The problem is it's not effectively enforced. But because of the constitutional sensitivities, it might feel better for the press to come out and propose collectively to you a solution, which then would help you shape your thinking and then we could take forward, if necessary.
LORD JUSTICE LEVESON
I have no doubt about that at all, Ms Harman, and indeed, from last September, when we first started the seminars prior to the commencement of the Inquiry, I made it clear to anybody who would listen and I've said it publicly that this isn't my problem; this is yours. But the solution that they come up with has to work, and it has to work for me, by which I do not mean me personally, but for me representing the public, which has been the backstop, background to this Inquiry. Of course, we're just about to embark, after we finish this module, on suggestions for the future, but I think, as I made clear earlier this week, I'm not wedded to saying, "Whatever you come up with is fine by me", because I'm not saying it necessarily will be. I just don't know. I'm talking about the press, that is.
A. I think if they circle the wagons around the status quo, then we will have heard the heart-lending testimony to this Inquiry of the Dowlers, the Watson family, the McCanns, and nothing will have changed, and that can't be acceptable. So I've been trying to encourage them that they don't need to fear Armageddon or Zimbabwe, that there can be a reasonable settlement here, which is not the thin end of the wedge, which absolutely defends and enhances press freedom but which gives redress and protects against too much concentration of media ownership, and that, it seems to me, is what is really important. And as Ed Miliband said, there is an opportunity for people to bring forward bits of legislation using the Defamation Act or using any future defamation bill or using any future communication bill. So I think that's a concern that they should have anyway, but I think around a set of proposals that we could all agree on. That would be the way forward and that should be possible.
MR JAY
In your discussions with editors, is an emerging consensus apparent?
A. Well, there's been, I would say, more of a sense of what they don't want than what they do want, which I've pointed out to them and said it would be good for them to put forward what they do want, what they don't want, and also that it would be good for them to agree and they're not obviously used to working quite collectively like that. But I think that in a way it's their responsibility not just to say, "It's down to you, sir", but to do something and we'll reserve our right not to like it. I've said that's not what they should do, and I have encouraged them that we would not be looking to get political advantage, score points, fight the next general election on this. I think people want this sorted. You know, they want a strong free press and they want it to act fairly. So it's been really just trying to urge them to come forward with their own solution, but not a dressed-up version of the status quo. If it leaves a situation where people can choose not to be part of a new redress system, then it's pointless, because the individual in respect of whom the code is being breached shouldn't have to work out whether or not "Oh, well, it's been breached but I can't do anything about it because the newspaper's not in this" you know, has not decided to enter into this contract.
Q. Has a consensus emerged then as to what they don't want?
A. They don't want a slippery slope. It's a very unusual situation for me to be speaking on behalf of editors of the press, but I don't think they want a slippery slope, but I think that we could have a firm cross-party consensus where actually, if the front benches agree, then they don't need to face a slippery slope because we can give assurances that we would back up what went forward and stop it getting out of shape. And I think that, yeah, there are a lot of people in the House of Commons or the House of Lords who have very bitter feelings and scores to settle, but actually, if the front benches agree and we get the argument onto the right plane and we have the constitutional safeguards which actually say we're doing the absolute minimum and we're doing it with constitutional hesitation, then I think it is possible.
LORD JUSTICE LEVESON
So without speaking for the press they'll speak for themselves do you want to elaborate upon what you believe this could look like?
A. Well, I suppose it could be called a statutory recognition. I think it's a process of elimination, really. The contract model has the problem which is I think the definition of a contract is an agreement freely entered into by two parties. If it's freely entered into, they can decide at the outset or subsequent newspaper owners could decide they're not going to enter into that, and I think that that is just a show-stopping problem, and therefore you have to have a situation where the new body, operating on the code, which most people think is fine
LORD JUSTICE LEVESON
I wouldn't want you to think that I necessarily thought that the whole code was fine. I just make that point. I wouldn't want it to be assumed that I don't think there aren't areas of the code that need to be revisited. I'm not saying there are at this stage, but I'm just I didn't pick it up the first time you said it. The second time, I thought I'd just better add that.
A. I mean, I would throw in one thing on the code, which is that it rightly affords protection for young people and children, but actually there is a vulnerability for the very elderly which probably should be added in. But I think by and large the focus and concern has been the lack of enforcement on it, so I think that some statutory recognition of it, sufficient to enable this new body to actually make their rulings enforceable against somebody, so that people don't just have the option of saying, "Well, you've had this compliant, you've adjudicated on this complaint, but we're going to take no notice of what your finding is."
MR JAY
But would a statutory recognition be sufficient to bring those who do not wish to participate in any contract into the fold?
A. I think it would have to, and it might not even be a sort of joining model. But I think that any model which just requires you to join it voluntarily, and if you don't doesn't apply to you, that's not that is the status quo, basically. The contract deals with the issue of people who join and want to leave, but it doesn't deal with the people who don't want to join. That's the problem, and I think that that just does look too much like the status quo. It's not enough of a change.
LORD JUSTICE LEVESON
Or join now, because they absolutely have to, but will sump out at the first opportunity.
A. Well, I think the argument that if they do it under seal, that they are bound at least for five years, but then there could be what happens after that or I just don't think it's good enough. It does need to have some statutory empowerment, some statutory recognition, but I think that it really must do the very, very minimum, because I do think and I do share the press' concern that government, in particular, must not be allowed the temptation to kind of interfere with press reports and press activity which is critical of them, because I just think they can't resist that temptation.
LORD JUSTICE LEVESON
Have you considered the Irish model?
A. Well, it's um good. I think it's as yet relatively untested but it tries to have statutory underpinning or an independent system.
LORD JUSTICE LEVESON
That's the point.
A. Yeah. I mean yes. I don't think that we'd have tablets of stone, because we want to be flexible, but there are, you know, various criteria which have to be met. I mean, I've resisted the temptation of actually thinking that I know what the answer is and just promulgating it.
LORD JUSTICE LEVESON
Just telling me?
A. Because I think that in a way we have to leave enough scope and flexibility for there to be an agreement about this and we have to move away from: "Well, actually, I'm going to take this position." We have to leave ourselves enough scope without being wishy-washy.
LORD JUSTICE LEVESON
I'm very comfortable with that. It's why I said what I said last September and have said to every editor and proprietor who has raised the topic with me during the course of the Inquiry that agreement on principles would be extremely important. But getting a way forward is, to my mind, essential.
A. I think we've got as far as agreeing the principles. It's just how you put those principles into action. I think that a lot of the discussion around the Inquiry, I can kind of see the topography of the principles. The next stage is, you know, quite how you can do it with being as minimalist as possible, and also taking the opportunity of putting in the constitutional safeguards around the public interest. I think that the new guidance issued by the Director of Public Prosecutions in relation to public interest reporting is incredibly helpful. We all know that when it comes to sentencing, you can argue the public interest and mitigate your sentence, but in terms of substantive offences you have no defence except in relation to data protection, even if you are a journalist acting in a public interest
LORD JUSTICE LEVESON
But that's actually why I it was during the course of the Inquiry that editors said that there ought to be a public interest defence to crime, which obtained from me the comment that it would be rather odd if the result of this Inquiry into allegations of gross press misconduct was a recommendation that the misconduct shouldn't be called misconduct but should be legitimised by the creation of a defence. But it did cause me, as you're probably aware, to invite the Director of Public Prosecutions to consider whether to issue, publicly, guidance on the second limb of the code test, with which I know you are familiar, in relation to journalists. He has done that and is consulting on it at the moment. I hope that that will do much to assuage the concerns of the press, that in some way there is insufficient recognition of the importance of investigative journalism.
A. But I don't think you'd be providing a protection for wrongdoing of the sort that the evidence has been in front of this Inquiry would be
LORD JUSTICE LEVESON
Absolutely not.
A. I certainly think that it's been made much clearer in terms of the decision to prosecute, but I can I do actually think there would be some benefit of looking at further safeguards in terms of substantive defences. You know, it might be that you think the press is being unduly nervous about it and that they ought to be not feeling: "Well, even though we really think this would uncover a crime, we can't do it because we can't rely on the prosecutor's discretion being exercised sensibly." But I think that there would be some judicial for that, and I don't see that in a way as a sort of quid pro quo for a proper redress system. It just means that if you do have a piece of legislation, you can take the opportunity of putting that in.
LORD JUSTICE LEVESON
Well, I'm not so sure that that doesn't create its own dangers because then you'll get a whole raft of satellite litigation around arguments as to the applicability of the defence. If you take phone hacking as an example: "I really believed that by hacking into this person's telephone or his email I would be able to uncover X. A source gave me the information, I'm not prepared to name the source, and therefore I felt this was all entirely legitimate, and therefore I must have a defence. Even though I didn't get anything that remotely proved that which I was concerned about, but got an interesting story anyway, actually, the reason I did it all was for this reason." I wonder whether, first of all, you can't rely on the discretion of the prosecutor. Secondly, you can't rely on what juries have done forever where there have been inappropriate
A. Yes.
LORD JUSTICE LEVESON
and oppressive prosecutions. Thirdly, you'll forgive me if I also rely slightly on the integrity of the judge who, if the jury do convict, can say, "Well, the jury have convicted and I understand why, but this was near and therefore that's entirely relevant to the question of sentence", or, alternatively: "It wasn't a defence but I'm satisfied that what you did was done for good motive or whatever, and therefore I discharge you." I wonder whether there isn't enough protection there. That's three layers of it. I don't ask you to commit yourself, Ms Harman.
A. I mean, I can see the protections at the beginning and the protections at the end. I think that you know, my main concern is that we make some progress, we have a redress system, we have protection against too great a concentration of ownership. I think it's an opportunity. I'd put it no higher than that. We've already made progress because of the guidance from the DPP, but I just think it's an opportunity. But my main concern is that we move on the question of redress for individuals and concentration of media ownership.
MR JAY
In terms of concentration of media ownership, could you outline, please, your proposals for the future there?
A. Well, really, just to I don't want to reiterate what Ed Miliband said, but that as well as having cross-media ownership addressed, there is also the issue of ownership of newspapers. The fact that things are changing fast doesn't mean that you are rendered unable to take any action. The fact that newspapers have declining readership doesn't mean that they're not still influential, so I think the question of ownership discretely of newspapers, even where there's not cross-media ownership, is actually an issue. If I might say, to be encouraging, that I think that the issue in your terms of reference of having media ownership addressed I think it is very important. I mean, I do think it was the combination of what I call the impunity, ie no redress, and invincibility, size and power it's those two things that laid the basis for the culture which we saw a very ugly face of in evidence to you. So I think if you were to go into all the massive detail about the issues, then I think at least it would be helpful I mean, obviously, you know, as Ed Miliband said, it's very much for you to decide, but I think it would be helpful for there to be at least an assertion of the problem and the role it's played in it, and the necessity for there to be a solution, even if then Ofcom or somebody else plays a bigger role in delineating it, but I think it getting a good redress system for individual complaints doesn't take us all the way we need to go.
MR JAY
In terms of prescriptions for the future, is there anything else that you would wish to draw to our attention or do you feel we've covered the ground?
A. I feel we've covered the ground, and having been a Member of Parliament for 30 years and, before that, being involved in press issues, I really do feel that this is a real moment of opportunity, and I think all of us in Parliament and those in the press, we have to make sure that we live up to that opportunity, basically.
LORD JUSTICE LEVESON
So no pressure?
MR JAY
Thank you. Those are all the questions I had.
LORD JUSTICE LEVESON
Ms Harman, thank you very much indeed.
A. Thank you.
LORD JUSTICE LEVESON
10 o'clock tomorrow morning. Thank you very much. (4.20 pm) (The hearing adjourned until 10 o'clock the following day)
