(10.00 am)
LORD JUSTICE LEVESON
Yes, Mr Jay.
MR JAY
We have six witnesses today. The first is Professor Greenslade, please.
LORD JUSTICE LEVESON
Thank you. PROFESSOR ROY GREENSLADE (affirmed) Questions by MR JAY
MR JAY
Thank you, Professor Greenslade. Your statement, please. It's not dated, but it starts at page 00276 of our bundle.
A. I have no bundle.
Q. Do you have your statement?
A. No.
LORD JUSTICE LEVESON
You haven't got your statement either?
A. It's in here, but not here.
MR JAY
I think out of fairness to you
LORD JUSTICE LEVESON
We'll get you a copy. Somebody will bring it to you.
MR JAY
I'd just like to ask you to attest to the truth of this statement, please.
A. Yes.
Q. About yourself, you're a Professor of Journalism at City University London. As we know, you write a daily blog for the Guardian and a weekly media column for the London Evening Standard. You've been a journalist for many years and in the past you've been assistant editor of the Sun, you worked on the Sunday Times, you were editor of the Daily Mirror for quite a short period, it seems, in 1990, but you've been working freelance, really, for 20 years. Is that in a nutshell the position?
A. That's true. I ought to make it clear that of course I'm here as a freelance journalist, in a sense. I'm not representing the Guardian. I haven't been party to any discussions that have taken place at the Guardian, so I am a lone voice in that sense.
LORD JUSTICE LEVESON
Professor Greenslade, thank you very much, and thank you very much for the obvious interest you've taken in the work of the Inquiry from its outset. I'm not sure that I should be happy that you have encouraged everybody to reserve their ammunition until they see the report.
A. Gosh, I'm well read. Well, I think they should do it then, rather than before, anyway.
LORD JUSTICE LEVESON
Yes, I was just proving that you are read.
A. Yes.
MR JAY
Thank you. The first rubric of your statement, "Flaws within the PCC". First of all, to be clear, are the flaws that you identify here flaws which you've only, as it were, conceived of in and since July 2011 or are they flaws which you had in mind consistently over the last 20 years?
A. No, the corpus of my work as a media commentator would show that I've illustrated that it was flawed many times over before that. However, I ought to say in fairness that it changed and it improved, sometimes I guess because of my goading, by the goading of other people, but I had many debates with the different chairmen and directors of the PCC over the years in which I would point out what was wrong. The most obvious thing that was wrong was that I was consistently saying this is not a regulator, and suddenly, from July 2011 onwards, everybody now seems to agree with what I've been saying for 20 years.
LORD JUSTICE LEVESON
But you do agree that nobody had said it before?
A. No. No one had I mean if you go back through the speeches, and I looked back to every chairman, they talk about self-regulation and the word regulation comes up in what directors say, too, and so I had assumed that they thought and conceived of it as being regulation. To hear Lord Hunt say, as he did in an interview with me when he was first appointed, "We of course are not a regulator", was a little eye opener to me. Suddenly we are in a state of denial, I realised.
MR JAY
May we focus on what you believe to be the systemic flaws? We've received a block of evidence about that already, but could you give us the headline points?
A. Firstly, I think in the setting up of the Press Complaints Commission there was a feeling that the Press Council had largely failed, which preceded it, mainly because the Press Council had fallen into disrepute. It had fallen into disrepute not in my view because it had done just a poor job I've been critical of that too but mainly because newspapers, publishers and editors treated it with utter contempt. Whenever the Press Council issued an adjudication which newspapers didn't like, they would publish the adjudication, which they were bound to do, but in large headlines underneath, they would say why they thought that adjudication was wrong. That, of course, was a nonsense, and they openly attacked the chairman at the time, Louis Blom-Cooper, so it was quite clear to me that that had fallen into disrepute. There was a crisis in the 1980s, a sort of Wild West show in terms of tabloid newspaper behaviour, and that's what created that crisis, a crisis which you can see has happened over phone hacking, although this is obviously on a far worse basis, but it was clear to me that that was the first major failure of the PCC, what is in a sense it was set up in order to overcome the problems of the Press Council, had to say, "We want to be inclusive, we want to make sure that we aren't critical", but at the same time the PCC, in having been set up in that way, was bound to say one of the reasons that the Press Council was treated so badly was that it adjudicated so often against newspapers. So there's the first systemic problem. They were obviously going to ensure that adjudications for breaches of a code were kept to a minimum. I think the other problem was, of course, that it was really still in the hands of the employers, the owners, and that meant that whoever was contracted to be chairman, director, the rest of the staff were very aware of who their employers were. I am not saying, and don't wish my statement to be seen in this light, that I'm not impugning the directors or the chairmen or the secretariat who had to do that work, but I am saying that it must weigh heavily in people's minds as to what happened before and who their employers were at the time, making it difficult to believe all along that they were being entirely independent.
Q. A couple of points there, Professor Greenslade. You refer to a Wild West show in the 1980s in relation to the behaviour of the tabloid press in your perception. You've been observing the behaviour of the press as a whole over 48 years, that's the timescale you identify in your statement. To the extent it's possible to generalise, how has the behaviour of the press improved/deteriorated say since 1980? Has it been a constant tale of improvement since that Wild West show or has it stayed constant? How would you define it?
A. It's really difficult. It's a fantastically difficult question to answer. There are periods, periodic moments, when the press misbehaves on a grand scale. It is fair to say that in the immediate succession to the Calcutt Committee's findings and report that the press cleaned up for a while. However, there was a persistent pursuit of the Royal Family, mainly Princess Diana, which led to periods of bad behaviour, but there is no doubt that the press can go for a couple of years at a time and not do anything too outrageous, and then suddenly there can be a feeding frenzy. The McCanns is a terrific example of that. It would also be fair to say that the PCC under pressure, I think, from public opinion, political opinion, opinion from within the media sometimes and various critics, did attempt on lots of occasions to improve itself. Obviously it made great changes to the code after Princess Diana's death. It has taken on board difficulties facing financial journalism in relation to editors following the City Slickers affair, so it has and of course one of the interesting things about the code and the development of the code is that you are constantly facing new problems you couldn't think of in advance. No one thought an editor would buy shares, for instance, so that's why it didn't say specifically in the code, "Don't buy shares if you're an editor", so you have to think of these things after the event. And when you do, that obviously means that injunction will be understood by people and it won't happen. The same on bugging and so on.
Q. One of the key failings you've identified in relation to the PCC is that it keeps adjudications to a minimum. The PCC might say and we've heard this from Lord Hunt a couple of days ago that that's one of its strengths, that it has been successful in acting as a conciliator between complainants and the press, and after all, when asked to fill in the consumer satisfaction survey after the event, many complainants are very satisfied with what's been achieved.
A. That's perfectly true, but I think people who complain, the average number of people who complain, who are not, say, in public life, are so absolutely astonished that they get anything positive from a complaint to the PCC that they respond by saying, well, you know, it was resolved to my satisfaction, so I think that's why that happens. You wouldn't get many politicians taking that view or people in public life, as you've heard in earlier testimony over the months. They're not so satisfied with the service. It has to be said, by the way, that the secretariat over the years built up a very sophisticated way of dealing with complainants. There is no doubt that they were that many complainants thought that they'd received excellent service from the secretariat and I also think that conciliation and arbitration has a very large part to play in how we should deal with many complaints. My problem was that obvious breaches of the code, blatant breaches of the code, could still be sorted out by conciliation rather than adjudication. It meant, for instance, that you couldn't build up a pattern in which you said I pluck the Daily Mail from the back of my mind, not the forefront, but let me use the Daily Mail as an example. When it breaches the code over a number of periods and it sorts those out by conciliation, then we are not getting a picture of a paper which has created a series of breaches. I'm not saying the Mail is the worst of newspapers in that sense. I'm using that as an example to show that without adjudications you are not punishing, even and many people don't think it's punishment anyway to have an adjudication, we can move on to that but the point is you are not showing that a newspaper over a period of time has been responsible for breaching the code.
Q. The point you make in your statement but haven't yet developed orally, at the fourth page, page 00279, you point out correctly that there are more complaints from the public about regional and local newspapers than the nationals.
A. Yes.
Q. What conclusions, if any, may we draw from that? The Inquiry has had little or no evidence of systemic or generic problems within the regional press. Is it your view that although numerically greater, the complaints from the regional press are just examples of the isolated factual, accuracy errors which, human nature being as it is, one would naturally see, one might be afraid to say, in any event?
A. Yes. Look, the regional press in my view do their best to try and tell the truth. They're less biased, they're less politically involved. They are not interfering, usually, in the private lives of celebrities. But they naturally intrude into people's privacy. They can't help it. It's part of the job, in a sense. And I think also they have to deal with matters of accuracy. There are many more regional papers than there are national papers, so naturally that would lead to breaches, but these are largely almost totally really minor breaches. I think one of the things I say later is about appointing readers' editors in newspapers. I think one of the things regional papers have done is carried in their newspapers and on their websites: "If you think there's something wrong in this newspaper, go to the Press Complaints Commission". I would rather see dialogues opening up between readers and editors through a readers' editor which meant that all these relatively minor but sincerely held complaints by people were dealt with without the recourse of a regulator or non-regulator, in which they could simply have that dealt with immediately by the newspaper. If you complain to a regional newspaper editor, most of the time the editor, in my experience, will take that on board, but what they've tended to do with the creation of the Press Complaints Commission is push those on, is encourage people to go right to, as it were, the last resort rather than going to the first resort.
LORD JUSTICE LEVESON
Does that run slightly into your concern that the Press Complaints Commission is keen to conciliate and therefore remove, as it were, exposure of issues, or is that merely a reflection of the order of complaint, if you see what I mean?
A. I'm not entirely grasping your point, but I think it is quite clear that the Press Complaints Commission enjoy dealing in a sense with the regional press. First of all, these are easily dealt with. It also makes their figures look terribly good, to be absolutely honest. They build up this huge file of, "Oh, we've got all these complaints, we've dealt with them all very well", but the truth is this is we're not, with respect, sir, holding this Inquiry because Mrs Smith of Wigan complained that somebody knocked on the door when her husband died. That whole business is a really interesting subject and I think you'll probably be addressed on it some time, but it is not the major reason for this Inquiry, and therefore not a major reason well, I'm telling you what the Inquiry is for not a major reason for worry about the regulator.
LORD JUSTICE LEVESON
That's actually the point that I was seeking to make, that there is a level of complaint which can and should be dealt with at the very, very bottom of the pyramid, straight to the newspaper, but your concern is that lots of complaints which are above the very, very base, which should just be resolved quickly, are being massaged away out of the system, so that we don't get a picture of what actually has been going on through the PCC, and that's a national problem, not a regional problem?
A. It is. That's exactly the point.
MR JAY
Thank you. And then the point about group complaints is at page 6, 00281. You make the point fairly that the PCC has improved its approach, really, to accepting these complaints over the years, but what in your view is the importance, in terms of setting standards and acting as a regulator, of a regulator properly so-called dealing with group complaints?
A. I think that they were forced in the end to deal with group complaints because people did feel that there had been ill treatment, particularly of people seeking asylum, particularly of immigrants generally, and they did come forward with guidance. And I understand that third-party complaints are a real problem. Obviously if the person who's been upset doesn't wish to complain, then you can do nothing about it. I remember a Labour MP who had quite clearly suffered from intrusion into her privacy, a picture on a beach, and I tried to encourage her to complain, but she said "No, this will only attract yet more hostility from the press, and therefore I won't complain". I couldn't have a third-party complaint launched. In those circumstances I could understand why you couldn't go forward with that complaint. Another very high-profile figure, a female, was outed as being gay and I encouraged her to complain, but she also felt for similar reasons that she wouldn't complain. You can't have third-party complaints, in my view, in those circumstances, although I think those people might have taken different decisions. When it comes to groups of people, when we start saying that East European asylum seekers are eating swans from the Thames, a Sun story of the past, then I think it's right that they should accept third-party complaints in those circumstances.
LORD JUSTICE LEVESON
On your first example, does that itself reveal a justifiable reaction from the individual or is it evidence of the culture of the press? The reaction being: I'm not going to go there because I will suffer. They will come back at me again and again, and therefore in the long run I'd better just lie down and allow my privacy to be invaded.
A. Exactly that. I think that you've had evidence, I think Hugh Grant was good on this, on the fact that if you stick your head above the parapet and complain, you will only attract yet more hostility. You are not protected. The opposite is the case. So a lot of people have taken on the nose, as it were, bad behaviour by the press on the understanding that the behaviour would be worse still if they dared to complain.
LORD JUSTICE LEVESON
Of course, one wants to encourage and applaud free speech and the right of freedom of expression so that the newspapers can do whatever they want in that regard, but is there some way of coping with that, or not?
A. Well, I think the way of coping with that quite clearly is if people had faith in the ability of a regulator to prevent further intrusion and exposure by a newspaper. In other words, if they in both those cases that I quoted, they said, "No, the PCC will not satisfy us because they can't protect us after we've made a complaint", and that's perfectly true. There was nothing that could be done. I think it would be the role of a regulator to say to newspapers, "This person's complained, we've upheld their complaint in this situation; we're watching you. We're keeping our eye on you." I think that would be a very fair thing for a new regulator to do.
MR JAY
The code of practice, Professor Greenslade, bottom of page 00281. Can I just ask you to develop your point about the inclusion of a conscience clause? You stand in a similar position to the NUJ. Are you also suggesting that there be a tailor-made code for journalists, which is slightly different from the Editors' Code?
A. I'm not talking about a separate code. I'm thinking, really, that we have an Editors' Code. It's not a bad code. I was surprised that Dr Moore in evidence the other day thought that it was contradictory in places. Maybe it is. I can't see that. But I think we have the basis of a decent code. But I think this is an opportunity to take another look at that but to make it into a journalists' code, not just one drawn up by editors, and I think that it seems to me that as part of that code it would be a terribly good idea to have a conscience clause for the reasons outlined by Ms Stanistreet, which is that it okay, we're not even if you didn't have the conscience clause, presumably if it's in your contract of employment, you can say, "Look, don't do that", but I think the addition of a conscience clause would trigger a certain kind of mechanism within the office and perhaps it would be reported to the regulator too that this conscience clause had be triggered, had been invoked, and therefore that it was a standback situation and it was probably requiring of a little investigation by the regulator as to whether that was a valid reason for refusing to do the assignment.
Q. Thank you. Now, the
A. I mean, I do think we should you know, the code has been improved over time. I don't think we should throw out that code completely, but I think it provides a decent basis for a code.
LORD JUSTICE LEVESON
Do you think it's better for being expressed in the negative as opposed to the positive? Just a question.
A. I know. We mustn't forget that the Ten Commandants are full of "thou shalt not do".
LORD JUSTICE LEVESON
I think there are positives too.
A. But there are positives, praise the Lord, and I don't think you can say praise the journalists in the code. We who teach journalism are teaching people what they should be doing, but I think when they get to work, it is only fair that they should know also what they shouldn't be doing and that this should be codified, and I can't imagine a code, except for that preamble quoted several times over in evidence by Lord Hunt in which he talks about attaining high standards, is a good enough praise the Lord at the beginning.
LORD JUSTICE LEVESON
All right.
MR JAY
We'll look at the constitution of the committee under your proposal in a moment, but may we look at the point about the public interest and defining it in the code, it's the bottom of page 00282.
A. Yes.
Q. You feel that much of the definition within the code of practice is acceptable, but there are difficulties with the third element because of its subjectivity: preventing the public from being misled by an action or statement of a individual or organisation. Is that a fair summary of where you're coming from?
A. It is. I mean, it is fair to say that one of the reasons for much of tabloid intrusion is that particular part of the public interest clause in which you say, as an editor: this footballer is married or engaged and we have evidence, supposed evidence, to show that this footballer is in fact philandering. This footballer is a public figure. This footballer has on perhaps two occasions said how much he loves his wife and so on and so that's reason enough to expose that person under that particular clause. You know, I have a problem with that, but I think it goes to the heart of the problem that I outlined in that first seminar how long ago was that? in which I said that we have two presses in this country, and the two presses mean that we have a press which is dedicated to acting in the public interest and a press which is dedicated to publishing material interesting to the public. I don't think that every bit of material in a newspaper could or should be in the public interest. We wish to engage the public in all sorts of ways and entertainment is a part of the package. But I think in interesting the public, much of that or a great deal of that material is intrusive and it's this clause which enables that to be published.
Q. Various suggestions have been put to the Inquiry in evidence we'll be receiving in the next two or three days about how that provision of the code in particular can be tightened up. Is that what you would be arguing for or are you in resigned fashion accepting the status quo?
A. I've tried myself to imagine how I could tighten it up at various stages. It is a real problem. In the end it is about intention of editors and about the culture of newspapers, and it is really difficult to see how in we do wish, if a politician, if a public figure is clearly misleading the public in some way, we must be able to expose that person, so we do need something which allows that to happen. It is in the end a really very difficult subject, this one.
LORD JUSTICE LEVESON
I'm not sure I should be reassured by that answer.
A. No, you'd best behave, sir. They will be at you.
LORD JUSTICE LEVESON
No, I wasn't thinking about my personal conduct, but about how to address the issue.
A. Ah, right, I'm not helping you enough, you mean? Well
LORD JUSTICE LEVESON
Maybe you can't. I'm not being critical of you.
A. No. I mean, I think that I think that there could be an extra injunction added to that, which made it clear that this part of the public interest defence needed to be there needed to be an overriding reason for it. In other words, that it needed to be a substantial example of the public being misled.
LORD JUSTICE LEVESON
That might work but does it deal with the problem of your two presses? If one goes back to last September and the great criticism: how could I possibly conduct this Inquiry without tabloid advice, because I could never understand the mentality of a tabloid editor unless I had such advice, I look to you because you've done both of them, you've been involved in both types of newspapers, and therefore I ask you: do you think you were two different people as you were running these papers? Or do you think you could carry the judgments that were proper in your head, you might apply them slightly differently, but consistently, whether you were working in a tabloid newspaper or a broadsheet or on any other type of paper?
A. No, I mean there is an element about me, as you'll realise, of poacher turned gamekeeper, and that's a constant criticism of me and I can't avoid that, but the truth is that I think I regret one or two of the things I did when I was a tabloid editor that were, I think, overly intrusive, and on reflection I shouldn't have done them, but it does strike me that what we're trying to do here is to raise standards and that we should in that case not look back, but look forward. Can I just say, by the way, that when we talk about this particular clause, it is impossible not to notice that since July last year, that kiss-and-tell stories, which this was largely the public interest justification for, have virtually disappeared from tabloid newspapers. So the beneficial effects of the launching of this Inquiry, of editors having second thoughts following the phone hacking saga, have already had a terrifically positive effect on the conduct of tabloid journalism. Now, can that be maintained after? Well, if you adopt my very wise recipe for doing so, then I think so.
LORD JUSTICE LEVESON
Of course, the alternative view would be that the Inquiry has chilled free speech.
A. Well, if you think
LORD JUSTICE LEVESON
Different side of the same coin.
A. Yes. I think that there will be people who will and do argue that, but the freedom to expose philandering footballers seem to me not a good reason to raise the banner of press freedom.
MR JAY
I've been asked to put this to you, Professor. Wouldn't your substantial public interest test kill the kind of entertaining stories which the section of the press you're referring to depend on?
A. To an extent, it would. Yes. There's no doubt look, if you say that there was an audience for young women being paid money to tell stories about what happened in the bedroom and that this has disappeared, we have already removed a degree of entertainment from those newspapers. That's perfectly true. And a good thing, too.
Q. Professor Greenslade, I'm going to, if you don't mind, pass over the issue you deal with in the sixth chapter of your evidence, defining the public interest in law and having a general public interest defence, since we've debated that with other witnesses.
A. Sure.
Q. And the merits of that idea are being considered, but can I ask you, please, to develop your new system of regulation? In particular, what you see the need for, namely some sort of statutory underpinning for an independent system and how you differentiate that from what you call state regulation?
A. Yes. This is the toughest task you/we all face, is to devise this idea of having independent regulation, independent from the state, but at the same time relying on the state in order to ensure that we all stay on board, that it works, that it's comprehensive, and what strikes me is that we will need statute in all sorts of ways, I guess. I haven't, for instance, in my submission haven't mentioned alternative dispute resolution and so on. I could have done so. That probably would need a regulatory framework too, but in just sticking to the press regulator itself, in my view it is quite clear that you are not going to keep everyone on board, not going to be able to levy sanctions against them, unless there's a method of compulsion. I have tried to devise a way in which this is as far away from state intervention as it can be. We don't think that the state intervenes in the work of the judiciary, which manages to annoy the state quite often, annoy governments quite often, and it seems to me that if we can have the judiciary at arm's length from the executive, then we can devise a way of getting press regulation in a similar manner, at arm's length from the executive, too, and that was the basis of my submission.
Q. Thank you. In terms of the structure of the new regulator regime, we're going to have at the centre an entity you're going to call the press regulation board, and it's appointed by a body analogous to the Judicial Appointments Commission. We understand how that works.
A. Yes.
Q. The PRB appoints the senior regulator, which we're going to call the press standards ombudsman, and then in consultation with the ombudsman the chairperson of the Press Standards Commission, and it's the Press Standards Commission which has the primary functions in relation to setting standards and adjudication?
A. And dealing with that arbitration and conciliation service that we still believe is reasonable in the general run of things, although I believe its work would be less onerous if at the same time newspapers, as I'd previously mentioned, were to deal with complaints themselves and that there should be as part of this deal a way of setting up readers' editors in every major office. In the case of regional press, it obviously could be a readers' editor who operated for a whole range of newspapers and so on, I think one needs to think a little bit more about that, but the point being that we want to encourage people to engage with their own newspaper as often as possible. The Press Standards Commission will then deal with appeals against that, or if they don't feel they're being dealt with right by their newspaper and it can resolve complaints, but at the same time it can see this complaint, this breach is blatant, this breach needs to be dealt with by adjudication, then it deals with that and calls on the ombudsman in those very special, but at least, it has to be said, rare events, when something really untoward occurs. McCanns, example.
Q. Does each of the elements of your system, the PRB, the PSO and the PSC each has a statutory underpinning, is that correct?
A. I think the statutory underpinning comes from the creation of the PRB itself, that underpinning, but I mean, yes, the whole system is underpinned by statute. I think that's fair enough. The important thing is that the state, however, has no input into the appointments and to the workings of that organisation. It just is completely at arm's length.
Q. Is the ombudsman part of the system or is it independent of it? Since the advice we've received from others is that for an ombudsman properly to be so-called, he or she needs to be independent; is that how you see it or not?
A. I'm not quite certain I follow you there. The ombudsman independent of whom and where?
Q. Obviously independent of the entity regulated, but also independent of the regulator. In other words, separate from it.
A. Yes, I think so. I think that's really what I mean, yes. This ombudsman has to be brought in only on special occasions and therefore stands apart from the PSC, but is the auditor and monitor of that body.
Q. But the PSC comes in, as you've explained, as a Court of Appeal, as it were, and to deal with particularly serious cases; is that right?
A. Yes.
Q. In terms of sanctions, the ombudsman has power to levy fines but only in what you describe as very serious, blatant or persistent code breaches; is that right?
A. Yes. There are all sorts of problems I've not explored here about fines, to be honest. It's very difficult to know what would be an appropriate fine for companies that are you have the problem that either companies are losing loads of money, so does the fine make that really difficult for them, or companies that are making a great deal of money and therefore the fine is not big enough to be a decent punishment. This is hugely problematic. I think the fine in a sense is about a public statement of this newspaper having misbehaved to such an extent that we felt it necessary to fine it, rather than the level of fine being so punishing that it would make a difference to the economic fortunes of that newspaper.
LORD JUSTICE LEVESON
Professor Greenslade, what you've identified is the perennial problem of the imposition of financial penalties in the criminal law in any event, so that's not new.
A. Well, I wouldn't fine. Yes.
MR JAY
The constitution of the Press Standards Commission, this is section 10 of your evidence: chair will be appointed through open competition. No formal link, so it's an independent or lay person. There will be 14 additional members, 10 of them will be lay or independent, and four will be editors, but why continue to have serving editors? A number of people have said that in order for such a body properly to be independent, they should be retired editors.
A. Yes, the retired editors, I think, is a non-starter, to be honest. No editor comes without baggage, and retired editors are no different. At least with working editors, you know where they're coming from. You know that they're also steeped in the contemporaneous business of journalism, which develops fast. I absolutely take Lord Black's point on that. If you go for retired editors, don't think for one minute that they don't have agendas. They surely will. And I don't think that if memory serves me, the Press Council did this, co-opted former editors, and I didn't think it was hugely successful. No one I can't think of a single editor, with perhaps the exception of the Standard and the Guardian, for whom I work, who would like to see me appointed, for instance, so I'm not certain that that would work. And I'm not angling for a job, by the way.
LORD JUSTICE LEVESON
But is there a problem with serving editors that you will inevitably get the most powerful people in the business, who will then have or be perceived to have an overwhelming influence on everybody else?
A. Well, no. If you say that we're looking at a composition here of 15 people and only two of them would be national newspaper editors, and although I've not put this, they could be appointed on a rota basis, there are only in the national sector, what, 20 newspapers to choose from. Some are powerful, some are less powerful, but I think if you did it on a rolling rota then you wouldn't face that problem.
MR JAY
You envisage a continuing conciliation or mediation role for the PSC?
A. I do.
Q. But isn't that in danger of perpetuating one of the core defects of the PCC, that it spends too much time mediating and not enough time making binding decisions or adjudications which will set standards for future behaviour?
A. It would look like that, wouldn't it, but I think that what we need to do is to impose the kind of rigour on each case that is not there at the moment, and that is: is this a minor breach, an accidental breach, an oversight, a mistake, which could be dealt with by conciliation? Is it an unusual breach, in the sense that these never happened to that particular magazine or newspaper before, and therefore again let's deal with it? Is it part of a pattern? Is it a breach that really shouldn't have happened at all? That then should go up to adjudication. So I think there's a crucial set of decisions to make at the point when the complaint is made, and it's for the PSC to work out, along with the ombudsman, a way of making that of creating a mechanism, an understanding, a rule or whatever, to make that happen.
Q. So there's a filtering process?
A. A filtering process.
Q. The run-of-the-mill category, having been filtered, fit for mediation in the first instance, but those which look potentially at least worse, either because they're systemic or because inherently they're more serious, they're not fit for mediation, they go straight into the adjudication track. Is that how you see it?
A. Yes, that's exactly how I see it.
Q. Otherwise, in terms of the mechanics, editors are required to publish the decisions and presumably, indeed you say it, the PSC can state exactly where the publication of the decision should be; is that right?
A. Yes. Prominence is important. Again it has to be said the PCC has improved that matter over the years, but we still feel, I think, that a front page an adjudication against a story on the front page should result in some kind of front page apology and prominence it is hugely important and the ombudsman must have a right to impose the prominence on a publication.
Q. In terms of appeal rights, you've already explained that the ombudsman is effectively the appeal body, but will the newspaper have a right of appeal or is this only left to the complainant?
A. I hadn't thought about that, to be honest, I just hadn't. Newspapers will probably be able to yes. I mean, for the purposes of the argument, I'm sure newspapers could appeal to the ombudsman too.
Q. There could be certain filters as regards the ombudsman's powers, whether it has a full appeal jurisdiction, in other words will entertain or rehear all the facts, or whether it will only review the decision of the PSC, but further thought can be given to that.
A. (Nods head).
Q. Can I ask you about the journalists' code, which is section 12. In particular, the committee. The committee is effectively a subcommittee of the PSC; is that correct?
A. That's correct, yes.
Q. You explain how it should be composed. You'd like to see the ombudsman on it, three public members of the PSC and eight serving editors and two nominees from the NUJ, so in all we're going to have 14, I think, are we? If my arithmetic is correct.
A. Yes.
Q. But a majority of serving editors. Is the thinking behind that that only they will know sufficient of what's occurring at grass-roots level to be attuned to current standards and the application of those standards?
A. I think one of the things I've noticed in the criticism of the current system is that people are really confused about the role of the Code Committee. Mainly, for instance, people will simply say and have said over the years: Paul Dacre, the editor of the Daily Mail, runs the PCC because he happens to chair the Code Committee. This is a libel on my dear friend Paul Dacre. I mean, the truth is the Code Committee does straightforward work. It's been non-controversial. It has responded to public pressure over the years. I don't feel that this criticism is valid. So I think that the my only desire with creating a new journalists' code and a new committee is to ensure that we get some working journalists onto it who aren't editors. It would be unpopular to choose the NUJ, but the NUJ is the I think has 65, 70 per cent of the journalists working across Britain, more than any other group representing them, so I think it's fair to choose them, but I don't think this is a matter of it's needless controversy to say the code the Code Committee is a very, very straightforward matter, not problematic in my view, and working editors on it makes sense. It's not as if they've designed the code in private to favour themselves. The code has, in fact, constrained them, and so you pointed out that it's largely very negative in that sense. So I would have thought the code is an example of the editors having behaved rather well.
Q. Okay. Within the individual newspapers, you recommend or propose a readers' editor, who will be the first port of call for complaints.
A. Yes.
Q. Is it anticipated that the majority of complaints will be dealt with internally, and only the minority will ever have to see the light of day before the PSC in any event?
A. I think that what I'd like to imagine is that readers' editors satisfy complainants well enough, that if complainants what complainants need to know from the readers' editor is: if you're not satisfied with what I'm doing on your behalf and the result, then you have the right to go to the PSC. So that's, I think, a straightforward matter.
LORD JUSTICE LEVESON
And the readers' editor would have to have sufficient clout to make sure or at least to carry the authority that avoided the risk of further retaliation.
A. Yes. I mean the role of the readers' editor and lots of papers have appointed readers' editors or internal ombudsmen in the past I'm talking about tabloids they've tended not to be really interventionist in the office. I think we'd have to conceive of a readers' editor having sufficient power and influence within the office to ensure that his or her writ runs properly, that there can't be retaliation against those who complain, and that also the readers' editor can bring pressure to bear in order to ensure that corrections, clarifications, apologies are given due weight in the way that you'd expect the PSC to be able to do at its remove. So you're hoping to create this might be a bit idealistic, but I think this is the moment for idealism. We want to, I think, create a situation in which there is much more internal accounting for mistakes, and the readers' editor is a mechanism for doing so.
LORD JUSTICE LEVESON
Is this a job that can be combined with some other job? Because one of the things that I heard about from some editors was: well, if you impose this additional financial strain on me, then that's going to cause me enormous problems because of my precarious financial position.
A. Well, tough. I think they just have to take that on board, to be absolutely honest. No, I think a readers' editor has to be separate from the daily run of things. It seems to me, going on the level and number of complaints that go in at the present, that the readers' editor will have a lot of work to do anyway.
LORD JUSTICE LEVESON
Okay.
MR JAY
Sections 13 and 14 we can take together, it's the issue of funding and the issue of compulsion. My understanding of your proposal is that this is a voluntary system. It's going to be contract based, but there's going to be no statutory obligation to join in. Have I correctly understood where you're coming from?
A. Yes. I ought to say that of course I made my submission in advance of reading Lord Black's contract, which I only saw a couple of days after, going through it really carefully. I'm not against the contract idea in theory, you know, his theory of the contract idea. I have other problems which we might discuss in a second about it, but the point is that this is a similar idea of having a contract, and it would be voluntary, and so you would need to ensure that you want to make sure that as many people indeed, everyone volunteers. That having been said, the subtlety of Dr Moore's Media Standards Trust argument about who should be compelled to be inside and not I think I merely said, oh, Guido Fawkes and Private Eye could be outside and we should live with that, but his formula was, I thought, wonderfully elegant, I think that was really clever, that really we're dealing in the end what we are dealing with when we're dealing with the press is power and dominance. What his group have clearly seen is that if you are not a dominating and influential publication in which you're bringing people into the public arena and belittling them, ruining their reputation, making their life difficult, if you're not one of those, then it's fair enough for you to stand outside the system. So I hadn't obviously I hadn't seen his decision either, before mine. So I would take that on board in what I say here about how we create a voluntary way in, because obviously after that we need sanctions against those or whatever to ensure that they do come in.
LORD JUSTICE LEVESON
As I understand the Media Standards Trust view, large companies within the Companies Act would have to be in.
A. Yes. Large companies would have to be in. That's true. But they are they're the dominant, powerful, influential press in our country.
LORD JUSTICE LEVESON
And you're content with that approach?
A. I am content with that approach. I wish I'd seen it in advance. But yes, I'm content with that.
MR JAY
So the
A. Although there is an arbitrary business about where you make the split, but I think that can be talked about.
LORD JUSTICE LEVESON
There is always going to be a line.
A. Yes.
LORD JUSTICE LEVESON
The question is, and this is one of the fundamental issues in this, whether there can or should be any compulsion for anyone, or whether you've just got to do it with carrots and sticks. If there are sufficient carrots and if there are sufficient sticks.
A. Yes. And that is where the whole set of problems lie, in whether we can whether people are going to say this is clearly such a fantastic idea, we're going to sign up to it, we're going to be involved, or whether they say, no, I'm not going for that. More particularly, I think everyone will sign up initially, but will they be back sliding and how do you prevent back sliding? That's where we get into penalties for those who don't the unvolunteered volunteers.
LORD JUSTICE LEVESON
But do you think it is a matter of philosophical obligation that one doesn't compel anybody to be in? Because that's what I heard from some people.
A. Yes.
LORD JUSTICE LEVESON
I'm interested in your view.
A. No, I think the truth is that since we're dealing with people who exercise power which has caused this crisis in the first place, that there has to be compulsion and I don't see that that is an inhibition of press freedom to you know, we don't set up separate courts in this country.
MR JAY
So you wouldn't need fines, then, if we're talking about compulsion for the larger bodies, and you wouldn't need them for the smaller bodies because the smaller bodies would be participating voluntarily in any event.
A. Yes.
Q. But you're proposing a series of incentives, as it were, which would encourage the smaller bodies at least to consider joining it?
A. Sure. I think that obviously we'd obviously I think there would be, for small publications, there would be this point that they would be able to say, "We have the kite mark, we are regulated, we have gone into this voluntarily, and we like what it means in terms of showing the public that the public can have trust in us."
Q. The incentives you propose are not dissimilar from many others that have been suggested to the Inquiry. Unfortunately, the VAT one doesn't work.
A. The VAT one doesn't work, but others have come forward since then, such as the removal of the Press Association service. That strikes me as very harsh indeed. I'm not certain about where we stand on freedom on that one either. To be honest, I can't think of a sufficient range of sanctions that would be absolutely cast-iron guarantees that the publisher would give in, but I think if you remove the currency if we say newspapers have only two forms of income, which is sales revenue and advertising revenue, if you remove the currency which enables them to get advertising, you remove their membership of the national readership survey and the ABC auditing, you take those away, then I think that that is a pretty harsh form of compulsion, and I don't think that that's been explored sufficiently.
LORD JUSTICE LEVESON
Who runs those organisations?
A. The publishers. So advertisers, magazines, newspapers form a collective council at the audit bureau of circulation, and so they can decide their own fate. So if one of their members is not part of the regulatory, they can say, "Right, you're out of the ABC, you're not getting audited", and similarly the same thing could happen at the national readership survey, also run in a similar fashion. I am told, in discussion with Lord Black, he said this one couldn't run, but with the greatest of respect to him, I don't know if it's really been explored sufficiently. It seems to me that that is better than fines, really. It's so self-evident to me that that would really be a very clever way of compulsion.
LORD JUSTICE LEVESON
The advantage or one advantage of it might be that it removes any risk of criticism that it is interfering with free speech. This business about the suggestion of press cards has
A. Of which I'm not in favour, yes.
LORD JUSTICE LEVESON
all sorts of free speech issues it seems to me, I know that it's Mr Dacre who's suggested it, but it seems to me has real problems in that regard, and this doesn't.
A. No. I'm not keen on the press cards. I've read what Paul has had to say about it but I'm not keen on it. I'm not keen on anything which inhibits free speech, which means that free floating journalists can't operate, and so on. So this is hitting publishers where it hurts, in terms of revenue.
MR JAY
I think the issue there is likely to be one of competition law and Section 9 of the Act and public interest, about which we're going to get further submissions.
LORD JUSTICE LEVESON
If there had been an easy solution, we'd have found it a long time ago.
A. Yes. That's also true. And I'm sure Guy will have already had that advice and that's the reason he felt confident in saying it wouldn't fly, but I'd hope that we could make it fly.
MR JAY
You wanted to comment, though, on Lord Hunt's proposals, Professor Greenslade. You let that slip five minutes ago.
A. Oh, did I?
Q. I'll let you do that, if you wish.
LORD JUSTICE LEVESON
It's really Lord Black's. We have to be rather careful about that.
A. Yes, Lord Black's.
MR JAY
That's true.
A. Having been through the contract, and I had to do it two or three times, but anyway, when I the key to me is this little diagram. I think you used this.
Q. Appendix 2, yes.
A. Appendix 2. It's great, isn't it, because the really thick outline is the trust board at the heart, but it's these little bodies feeding into it which struck me as being problematic. The industry funding body and the appointment panel for the chairman's appointment and so on. I don't want to be rude about they've obviously spent a huge amount of time trying to do this and so on, but it struck me that it's a sort of bureaucratic spider's web, and the spider is the industry still at the centre of the web, controlling everything, and it seemed that they still had far too much control in order to, I think, alleviate public disquiet that this is still an industry this is still an industry organisation in which they still have too many levers of influence. If you just take funding, for a start. Funding is not a sort of joke thing. If you pull that lever, you constrain that lever, you control. And so I would be really worried about the industry funding board aspect. It seems to me it's PressBoF reborn, and I think that's that's a problem. I thought his phrase about independently led self-regulation was beautifully put. It's actually in his submission too. But what we're really aiming for, are we not, is independently led independent regulation. We still you know, we want regulation, is really what we want, and it seems that this was too convoluted, to bureaucratic, too vague a process, and although I share Lord Black's philosophical objections to state involvement, even his schema seems to me that at some stage there would need to be some statutory underpinning, and that really is no different from my view and no different in some respects to Dr Moore's view.
Q. In terms of the Internet, Professor Greenslade, is the position this: with the smaller entities, they would be outside the system, or rather their participation would be voluntary
A. Voluntary.
Q. but the larger ones would be compelled?
A. Yes.
Q. Can I ask you, please, to develop your final personal observation, perhaps adding to it any thoughts which have come to mind since?
LORD JUSTICE LEVESON
Before you do that, was there anything else you wanted to say about the proposition put forward by the Press Standards Board of Finance? You mentioned the appointment process.
A. Well, yes. That was somewhat one of my criticisms of the Press Complaints Commission and PressBoF over the years has been it being too opaque a process. We want transparency, and it seems to me that this is also rather opaque, about how you would appoint. Mine is really an open example of how that could be overcome, and I'm not saying you know, I can see Guy said several times over, "This is an iterative process", and I can see that they've moved already as they're going on, and I think they will take on board other things, and perhaps they'll obviously take on board that the appointments need to be totally at arm's length. I'm just keen for them to if we go the contract route, which I don't think is necessarily a bad thing, I'm still very keen for them to remove any aspect of the industry pulling strings, whether it's about appointments or funding.
MR JAY
Thank you. Any final thoughts, Professor Greenslade? You've developed one or two on the final page of your statement, but particularly in the light of anything which has come to mind since or anything which has specifically been thrown up by this Inquiry, perhaps?
A. As you probably see, I write endlessly about it. It's been my interest and passion for 20 years, this whole business, and I have been a critic and commentator all that time, so I could spend hours here, but I'll just do it in one sentence: we have this chance, I think, to improve the standards and ethics of our profession, trade, craft, whatever you care to call it, and I think that we've had periodic bouts of bad behaviour and we need to devise a final system that for the present, for the moment, while we still have print, can actually stop the dominance and power of large organisations to make life incredibly miserable for other people.
LORD JUSTICE LEVESON
That's not necessarily restricted to print, is it?
A. Well, we're only dealing with print here. I mean
LORD JUSTICE LEVESON
But print that goes into digital. The problem I'm not suggesting there is a problem with the Huffington Post, but the difference is not that it's the Huffington Post as opposed to a printed document; it is the way in which we collect our material and then present it to the public, whether in paper form or digitally, isn't it?
A. Yes. However and this is a much wider argument for me, still, print sets the national conversation, not what appears on the screen. What appears on screen is a repeat of that, but what we don't know is and yet not enough work has been done on this as to whether, when we move to a screen base, that the level of influence that comes from the printed word and the totality of newspapers working together to create a feeding frenzy in the manner of the poor parents of Madeleine McCann, what we don't know and what we can't know is whether, when we move to a screen-based totally screen-based news outlets, whether that kind of feeding frenzy can occur. I think it's the power of print that has made that happen. It's a different argument, but I am more relaxed about the digital world than I am about the print world.
LORD JUSTICE LEVESON
One of the concerns that have been addressed to me is that I have to make sure that I am not simply focusing on yesterday's technology, but that I should think about things in a way that encompasses what tomorrow's might be. I've actually found it quite difficult to visualise what tomorrow's might be, but I have an idea what today's is. That's not therefore a concern which really troubles you for the reason you've just given.
A. No. Let's deal with print.
MR JAY
Thank you very much, Professor Greenslade.
LORD JUSTICE LEVESON
Professor, I hope that your MA student, whose comment you observed, did well in her exam. It seems a very pithy way of putting it.
A. Yes, she got a good mark. Thank you.
LORD JUSTICE LEVESON
For those who don't have it in front of them: "Most ethical dilemmas in the media are a struggle between conscience and revenue." Thank you very much indeed.
MR JAY
May we move on to our next witness and break after about 15 minutes?
LORD JUSTICE LEVESON
Certainly.
MR JAY
Is Mr Suter here? MR TIMOTHY JOHN SUTER (sworn) Questions by MR JAY
MR JAY
Your full name, please?
A. Timothy John Suter.
MR JAY
You've kindly provided us with a witness statement under tab 38, sir, of your bundle.
LORD JUSTICE LEVESON
Thank you very much indeed. Mr Suter, thank you very much for stepping into this area and providing us with the benefit of your views. Thank you.
MR JAY
I want to ask you first of all, having identified the statement, to confirm that it's true to the best of your belief; is that right?
A. Yes.
Q. Can you explain first of all, Mr Suter, who you are and what Perspective Associates is?
A. Certainly. I run a small advisory company, we advise around media policy and regulatory strategy. Before that, I was a partner at Ofcom. I was the founding partner at Ofcom for content and standards, which was the bit of Ofcom that was responsible for the regulation of content, primarily broadcast but also addressing other non-linear types of content.
Q. Thank you. First of all, please, this is the introduction to your statement, can I ask you to summarise what you're proposing and where you're coming from?
A. It seems to me that building on what Professor Greenslade has just said, this is an opportunity not just to address print, which clearly he sees as the priority, but I think it's an opportunity to update the way we address content regulation for the future as well. Because it will change, media will change, the types of information people are getting will change, and the regulatory framework needs to adapt with it, and I think there's an opportunity here to think about the nature of the statutory underpinning that will apply across different kinds of media to the press but also to other kinds of media that will deliver I think a more flexible, a more effective and a more forward-looking type of regulation, and in the process, I think, has the opportunity to address the central concern, as I see it, which is of whether there should be a statutory underpinning to press regulation, and if so, how to achieve it.
Q. Your introduction makes it clear that you share the abhorrence expressed by every witness to the Inquiry of state control of the press, you're not therefore advocating that, but you're advocating a form of statutory underpinning. What's the difference between statutory underpinning and state control?
A. By state control I think everybody has set up this dangerous notion that the state would dictate what the press could do, would dictate the standards by which the press had to operate and would form judgments as to what was or was not acceptable. I see statutory underpinning as being further removed from that, or setting a framework within which the regulation happens, but where the regulation itself is carried out by independent bodies dealing directly with the press and the regulated entities.
Q. The four core principles which you're outlining this is at page 00759, the second page of your statement could you explain those to us, please, and the role of Ofcom within that framework?
A. It seems to me that what a number of people, the Media Standards Trust and Professor Greenslade as well, have come up with, devised a way of creating a link between the state and the system of regulation. What I'm proposing is that that link already exists, it exists in the shape of Ofcom, and that what you could therefore do is require Ofcom to do two very specific things. In the first instance, it could identify the core standards that it expects media to uphold, and it could identify the characteristics of the types of media service that should be submitted to some form of regulation. That would be Ofcom's primary job, to set out at a very high level what those core standards should be, and to set out the characteristics of services that should be regulated. If you like, it's asking Ofcom to do what Dr Moore did with his definition of the types of services that should be subjected to regulation, but in a slightly more flexible way. It's giving Ofcom the opportunity to determine for itself what are those characteristics.
Q. Dr Moore's I think he called it the backstop independent auditor who had statutory underpinning. Ofcom is going to be undertaking that function?
A. Ofcom will undertake that function.
Q. But in a slightly different way, we pick this up at paragraph 8 of your statement: "Ofcom should define the characteristics of media services that should be regulated and they'll take into account three issues." Could you explain that for us in somewhat more detail? What do you mean by that?
A. What I envisage is that Ofcom has to make a decision about the types of services, broadcast, non-broadcast, press, online, that require some form of regulation, and I think there are certain characteristics that are likely to be taken into account. They may be requiring some form of regulation because they are the creatures of some kind of public policy, public broadcasters. They may require some form of regulation you may want to take into account the practicability of enforcing some regulation against them, if it's feasible and possible to regulate them, and you'd also want to take account of proportionality. Actually, what is the nature of the harm that these services might do and is it proportionate therefore to regulate them? So I think you would ask Ofcom to make those determinations and to define the characteristics of services that should therefore be regulated.
Q. But would Ofcom then be given considerable discretion in particular cases or would you be expecting it to say in relation to the printed media: okay, they don't meet the public policy limb because that's to do with broadcasting, which is publicly funded, but they probably meet the practicability limb and certainly the proportionality limb if you're talking about newspapers which are large enough; is that it?
A. Yes, that's exactly right, whereas there might be other print publications that would not meet the proportionality test, might well meet the practicability test but would not meet the proportionality test. They're too small, they're too specialised, they're unlikely to trigger that degree of potential concern.
Q. Is there a danger, though, that Ofcom may make the wrong decision in relation to the press? Okay, we can argue about size, and we saw Dr Moore's approach, let's take the definition of small company in the Companies Act, but that's an objective measure, we could put forward different measures, but on practicability, is there a risk that certain entities may fall outside the net or not?
A. I think if you're asking the practicability question, I suspect Ofcom is as well, if not better, placed than anybody to be able to judge that in relation to its knowledge of media and the way it is developing. I suspect on practicability, it's going to be pretty close. Clearly there is one approach that says you create a bright line and you use that, it's very clear, everybody knows exactly where they are, and that's what Dr Moore's solution would give you. This is suggesting that you might want a more flexible approach. You would give a body like Ofcom the responsibility to take a flexible approach.
Q. And Ofcom, having made the decision, wouldn't issue a licence as such but would issue a general authorisation and it would be unlawful, is that right, to continue to publish your newspaper if you didn't have that authorisation?
A. Yes. That's right. It's not a licensing regime, but if you fall within those characteristics then it is a requirement that you should be subject to some form of independent external regulation.
Q. In terms of over-arching principles, we've dealt with characteristics, you also deal in paragraph 10 with the outcomes, again at a high level. You see four principles. We don't see the freedom of the press there or the need in a democratic society for the press to express themselves as freely as they might as part of your four core principles. Have I overlooked something or is there a reason for that?
A. No, it is included in paragraph 12. It's actually that included within shall be a clear and unambiguous statement of the importance of a free and vigorous press.
Q. So that would be as it were freestanding?
A. So it's freestanding, I think it's a freestanding statement of intent.
Q. Can I ask you about the specific content requirements in paragraph 11. These are I suppose at a greater level of particularity than the four over-arching principles, but for broadcast news you would have an impartiality requirement but for print news, you wouldn't.
A. Exactly. Given that the framework I've suggested here goes beyond simply the regulation of the press, it's also trying to look at what are the other kinds of content requirements that Ofcom might seek or be required to impose, and at the moment there is an obligation on broadcast journalism that it should be both accurate and impartial, that is clearly something that Ofcom would therefore require.
Q. Once Ofcom has made the decision that a particular press entity is within scope, you're then this is your second main theme, which is between paragraphs 12 and 13 of your statement you're expecting that independent but industry-led regulators will grow up to meet the requirement imposed by Ofcom. How is that going to happen in practice? How is it going to start?
A. Well, I think it will start happening by building on what we already have. We already have a PCC, we will have a replacement body for the PCC. There are lots of ideas around as to what that will be. That is precisely the sort of process that I would imagine would happen here. The press, those parts of the press that would require to be regulated, it would be in their interests to create a body that would meet the requirements of Ofcom in terms of independence and operational capacity, in order to get the necessary authorisation. What I would envisage happening is the process that's actually been happening over the course of the last year.
Q. But Ofcom's content board well, Ofcom having given the general authorisation, there would then be authorisation which addressed three essential criteria and that's the box under paragraph 11, I think; is that right? They have to be adequate governance arrangements which are independent, adequate regulatory scope and adequate operational funding arrangements?
A. Yes, under paragraph 16, yes. That's right. So that is the process of authorisation of the regulatory body itself.
LORD JUSTICE LEVESON
You'd better explain the difference between Ofcom generically and the content board, because that's a further distance, isn't it, from government?
A. Yes, and that was the reason for suggesting that you would give this particular role to, in a sense, a separate entity, which is the content board, which already exists within Ofcom, has specific roles in relation to the regulation of broadcast content. The reason for giving it a role here is that it takes the relationship between the regulatory authority and Ofcom itself, it puts one more bit of distinction between it. It gives a separate body there, whose job it is to authorise the regulatory bodies.
MR JAY
Would the content board, you explain in paragraph 16 that it's going to be appointed directly by Ofcom. Would there be a requirement for an appropriate mix of lay or public representation and press representation on the board or how is it going to work?
A. The content board is already appointed by Ofcom and has requirements to meet certain I think I'm right in saying that it only has some specific obligations to have members who represent the nations. Its requirement is that it should be able to carry out the functions that are given to it by the main board, and clearly if this was one of the functions that it had to fulfil, then you would expect the main board to appoint accordingly.
Q. There would have to be an amendment of the enabling statute, whether it be the Communications Act of 2003 or the Broadcasting Act of 1996, I have to check, which would bring press, as it were, within the scope of Ofcom and the content board, is that how you see it?
A. Yes. In order to create this kind of authorisation regime, I'm sure you would need to amend the act.
Q. The other attribute of the system, paragraph 14, is that the independent regulator, which is blessed, as it were, by the content board, will then have responsibility for all the services operated by the participating members, so that if you have, for example, a press entity which is in the realm of printing newspapers publishing online and audiovisual content, it would all be dealt with by one regulator who deals with all three aspects?
A. Yes. I think we are already seeing the potential fragmentation of regulatory bodies, dealing with different kinds of distribution systems and different kinds of content. That is entirely understandable, but it doesn't seem to me necessarily wholly desirable if you wish to have a body like, for instance, the body that's dealing with the press that could cover all of the services that the press are themselves offering. Last year there was a little bit of a spat as to whether the press could come under the audiovisual services offered by the press should be regulated by ATVOD or not and Ofcom on appeal determined that they shouldn't, but there is nevertheless a danger that you will end up with a range of different regulatory bodies and this may be a way to solve that.
MR JAY
Is that a convenient moment?
LORD JUSTICE LEVESON
Certainly. We'll take a short break. Thank you, Mr Suter. (11.27 am) (A short break) (11.36 am)
MR JAY
Mr Suter, in paragraph 17 you begin to pick up the three essential criteria which we'd seen in the box below paragraph 16. Can I ask you to explain each of those separately. First, the point of independence or degree of independence guaranteed by governance arrangements, how is that going to work in your view?
A. Well, if you were to play back the conversation that you were having with Professor Greenslade towards the end of the session there where you were discussing the appropriate means of securing independence in relation to the appointment of the chairman, the appointment of the board, the role of the funding body in those appointments, it will be exactly around those sorts of criteria that I would expect Ofcom and the content board to develop its thinking and to assess the proposals that were coming forward, so that if there are legitimate concerns about, for instance, the role of the funding body in determining the nature or composition of the regulatory board, that would be the moment that they could be addressed, and if necessary rectified.
Q. Thank you, but the content board itself would be developing criteria, and these are sort of at lower level or a greater degree of specificity than the over-arching criteria that you mentioned earlier in your statement, is that it?
A. They would be developing criteria against which the individual bodies would come forward and put their proposals, so I don't think you would be wanting the content board to be prescriptive about what different governance arrangements there should be, but it would set out the principles that those governance arrangements should meet, and it would have the opportunity to assess whether the individual proposals did indeed meet them or not. And that would be a condition of authorisation.
Q. The second element, this is the next bullet point: adequate regulatory scope, industry coverage and powers. The content board would look at the regulatory outcomes and service characteristics and again assess whether the authority had adequately drawn its remit. In other words, it would look at the proposal on offer and say "yes" or "no" or, more likely, "This has to be tweaked in order to satisfy us"?
A. Exactly. It would have as a requirement those characteristics that Ofcom had itself determined, for instance in relation to the press or a broadcast service, so it would ensure that those were adequately reflected in the code in front of it, and it would also ensure that the powers that the regulatory body was taking to itself to investigate and to impose sanctions, where necessary, were sufficient actually to do the job that it was claiming it was going to do.
Q. You define the minimum characteristics as: complaints handling resolution, the power to investigate broad or systemic problems, et cetera.
A. Yes.
Q. The source of power, though, of the regulator which is putting itself forward for approval by the contents board will be contractual, I think, will it not?
A. Almost certainly I would imagine that it would be contractual, but it is underpinned, which I suspect we shall come on to in a minute, by the degree of compulsion that this process requires, so the nature of association that the industry bodies come to is for them to determine, but what they won't be able to do is to duck out of being regulated.
Q. Can I just understand that last point? It's the paragraph at the end of the second bullet point. You say: "The content board would note the degree to which the authority had secured acceptance among the entities it proposed to regulate. It would be for the services themselves to join a relevant regulatory scheme rather than a requirement on the independent regulator to secure their membership." I think you pick that up again in paragraph 22.
A. Yes.
Q. This is leaving or indeed declining to join. Can you explain, please, how the individual entities being regulated are being bound to this system?
A. Well, they are bound to the system first of all by virtue of the fact that they fall into the category of service which Ofcom has determined should be regulated, so that means that they have to find for themselves an independent regulator. You would assume that what they will do is to create one that has sufficient coverage and deals with a sufficiently broad number of institutions of like kind, but the compulsion doesn't rest on the regulator to secure their membership. The compulsion falls on them to be part of an appropriate scheme. And if they decide that actually they don't want to be part of a scheme, if you have to confront, if you like, the Northern Shell issue, they can't avoid being part of the scheme, and if they decide they're definitely not going to enter into any contract and join in, then it remains for Ofcom to apply what it considers to be the most relevant code of any of those that it has authorised to them itself.
Q. Ah, so the backstop power would reside in Ofcom. It wouldn't be Ofcom's role to withdraw the general authorisation and make it unlawful, as it were, to trade, but Ofcom would say, "You're not agreeing to participate in this system, you must participate in our system", Ofcom's system?
A. Yes. So the an organisation says, "We don't want to join under the authority of that particular group", for whatever reason it might be. Ofcom says, "Well, in our view you still remain a service that ought to be regulated and therefore, even though you don't want to belong to that scheme, we will apply its code to you, because it is a code we have authorised for services like yours."
LORD JUSTICE LEVESON
And "we" is Ofcom
A. "We" is Ofcom.
LORD JUSTICE LEVESON
with its regulatory power available to it?
A. Yes.
LORD JUSTICE LEVESON
Presumably exercised in a way that encourages those who actually fall back to Ofcom to have it regulated in that way to think twice about going back to the body that they should be party of?
A. I'm sure Ofcom wouldn't want to do it in such a way as to encourage everybody to come and be regulated by them, but nor should it do it in a way which is discriminatory, but you would hope that in regulating it by the industry code it would ensure that it continued to be regulated, continued to be regulated in an appropriate way and you would hope in a way that encourages it to go back and join in.
MR JAY
So Ofcom is backstop or last resort regulator, so this on analysis is a form of co-regulation, I think, is it not? Your proposal?
A. Yes, I suspect it is. I know there are terms of art around self and co-regulation, but I think this is co-regulation in that it envisages a framework of regulation which is determined by Ofcom and where Ofcom remains as the batsman.
Q. The third bullet point we can touch on lightly because it's self-explanatory, but "Ofcom's content board should be required to assess the accuracy of operational and budgetary plans". Isn't there a danger, though, with this system that Ofcom will be tending to look at proposals which have come out of the industry and then there will be a sort of negotiation between Ofcom and the industry, the industry wanting to put forward the most lenient proposal it might wish for, and it becomes a form of negotiation and in the end you get something which is not necessarily wholly in the public interest because the public interest won't have contributed to the debate in what the industry is putting forward; it will be a dialogue only between Ofcom and the industry?
A. But I think that's why it's important that you do at least have some organisation like Ofcom, through its content board, whose sole job is to represent the interests of the public. At least there is some degree of negotiation on behalf the public as to what the powers, the competence, the funding, the operational capacity of that body should be. It may not be possible for the public directly to engage in that conversation, but it is not impossible to have a body whose sole purpose is to represent their interests in ensuring that there is an adequacy of operational resource.
Q. In paragraph 18 you say: "Where the content board believes an independent regulator is deficient against these criteria its authorisation should be withheld until those concerns are addressed." In the interregnum are you proposing that Ofcom is the direct regulator?
A. Where there is a code that it can use, yes, and as I think I say further on in relation to where a set of services emerge where there is not yet a code or where there is a gap, then Ofcom would have to fill that gap, yes.
Q. I suppose if we're looking at the future here, what the content board would be likely to do would be to say to the press, "Well, the independent regulator you're putting forward looks deficient to us, you've run out of time" because there would have to be a time period for this to develop, maybe six months or a year, a matter of debate.
A. Yes.
Q. "While you sort yourselves out, you must apply the current PCC code."
A. Precisely, yes, something like that.
Q. As you say in paragraph 23, Mr Suter, it would be open to the content board, looking at the Editors' Code of Practice, to say, "Apply that with these amendments, because we think in our judgment that that's appropriate", because that's implicit, I think, in the last clause, isn't it, of paragraph 23? Or have I misunderstood it?
A. Well, in paragraph 23 I was trying to address where you might in future have services that emerge of a particular nature or characteristic such that there is as yet no industry body created, and it's going to take them time to get themselves together to create such a body, and in those circumstances Ofcom would have to devise an appropriate code against which they should be regulated.
Q. Yes
A. Pending the creation of an appropriate body.
Q. So paragraph 23 is to do with new technology, new services?
A. Exactly.
Q. Ofcom using its experience would say, "We're not quite sure what the independent regulator is going to do, but we think, drawing from various codes which apply to analogous services, in the interim these are the standards you should be applying"?
A. Yes. And what might emerge would be either a body that was wholly focused on those kinds of services or that you would find existing independent regulatory bodies would absorb those principles and take those new services under their wing.
Q. Can I just understand the difference between your proposal and Dr Moore's proposal, speaking for the Media Standards Trust. If instead of Ofcom we were to have his statutory entity, which is the BIA, which of course has statutory powers and statutory underpinning, your proposal is very similar, isn't it? Or if I've misunderstood it, where are the differences?
A. Yes, I'm sure it's possible for two people to arrive at a very similar solution from different points of view, but I think there are some differences. As I understand Dr Moore's proposal, first of all his is more limited in its scope in the number of organisations that it deals with, whereas what I'm suggesting is a reformulation of Ofcom's existing role covering a much wider range of media services. Secondly, what I don't think is present in Dr Moore's proposal is that the backstop regulator should be able to regulate services that either choose not to put themselves under an independent regulator or for whom there is as yet no appropriate body to take on the role. So I think it differs in those two respects, but in the middle I think they're very similar.
Q. In chapter 2 of your statement, paragraph 34 and following, our page 00763, you apply these principles to the press and you explain how the regulatory body would achieve its genesis and then develop. You're contemplating the likelihood of a contractual system. In paragraph 25: "The arrangements put forward would have to be authorised by the content board using the framework set by Ofcom" and as you've explained earlier we're looking at the characteristics and the three subprinciples you've identified there, the general regulatory outcomes and then the definition of the public interest, the I may have missed this one where is the public interest coming into the over-arching system? Where did you deal with that?
A. I think I deal with that effectively
Q. It's paragraph 12.
A. Paragraph 12.
Q. Yes, I see.
A. Yes. The definition of the public interest that you would expect to see applied.
Q. Thank you. And then you've touched on this earlier. Paragraph 26, the characteristics. You're looking not just at size, you're looking at scope and coverage, but I think you're effectively saying that if you're too small in all the senses of the term, you don't need to be regulated?
A. Yes. It really I think fundamentally it is not appropriate to try to devise a regulatory system that is going to catch everything. That would be inappropriate, impossible and disproportionate. I think you need an organisation and I would say Ofcom is well placed to do this to determine the proportionality of regulation and the potential for harm or detriment that might occur from those services, and to develop its criteria as to how it's going to do that I think in a very similar way to the way that it's proposing to develop criteria around the public interest in terms of plurality investigations. So there will be some sort of proportionality test that it will apply.
Q. Out of interest, have you found out informally from Ofcom whether they are delighted or otherwise with what you're proposing might be their role? It's quite a heavy and large hot potato, isn't it?
A. I've scrupulously avoided inviting any views from them on that. No doubt they'll share them with you.
LORD JUSTICE LEVESON
I think they probably will.
MR JAY
In terms of regulatory outcomes, I think this is indeed I know it's clear from the principles that you've explained earlier, the fifth point, you've touched on the AVMS directive, adherence to international obligations, which is currently, I think, ATVOD, if I've got the acronym correct. Can you explain for us again how that's working in the framework of regulatory outcomes?
A. Well, there is a requirement already through this new European directive that audiovisual services that meet certain characteristics will need to be independently regulated, and there was, as I said earlier, there was a discussion last year between the press and the industry regulator ATVOD as to whether some of the services they offered did indeed meet those characteristics or not. Ofcom on appeal decided that they didn't, but that's not to say that in future some services won't meet those criteria as being a separate television-like service that is being offered by the press in an on-demand delivery mode, and therefore
LORD JUSTICE LEVESON
So let me see if I understand that. Does that mean that if the BBC have a video clip which they put online, that's obviously covered within the Ofcom code and the regulatory framework of broadcasters?
A. I suspect it probably isn't, in that if it's the BBC iPlayer that you are talking about, which is clearly delivering television-like services, I think it would be covered by ATVOD if it was covered at all. I'm not sure whether ATVOD's writ does extend to the BBC iPlayer, I think it does.
LORD JUSTICE LEVESON
And the bits of video that go or are embedded in news items on BBC Online?
A. Would be subject to regulation by the BBC Trust but not by Ofcom.
LORD JUSTICE LEVESON
So to that extent it's the same as the press using video clips on their digital platform?
A. Yes, and I think that was the issue that was being tackled last year as to whether the inclusion of video clips within a press website constituted a separate television-like service, such that it would then fall to be regulated by the video on demand regulator, and Ofcom's conclusion was that it didn't, but it clearly left open the possibility that the press would develop services that would more closely resemble television-like services that would have to be regulated by virtue of the European regulation, so it may emerge. I suspect it probably will emerge. So the purpose of this is to be ready for that moment.
MR JAY
We'll have to look again at the DCMS module 4 submission in the light of what we have just heard.
LORD JUSTICE LEVESON
Yes, we might ask Ofcom about it as well.
MR JAY
Paragraph 28 again is self-explanatory really, you having now clearly explained how this works in terms of the three elements of governance and powers and financing, this is what will happen, and then there will be an auditing process which your statement also deals with. Can I ask you though, in the context of independence from the state, that the one area which may be slightly controversial is this, that Ofcom is in one sense an emanation of the state. The relevant officials are appointed by ministers, you remind us. Not everybody, of course. The content board is appointed by Ofcom, and the content board is responsible for providing the general authorisation and then the more specific authorisations. Could it be said that in the light of that matrix there is at least the appearance of quite a lot of state not so much intervention, but influence, if I can put it in those terms?
A. I think if you're going to have statutory underpinning, there is going to be an engagement with the state somewhere. There is going to be some hook that gives the state some degree of purchase and oversight of the system. The reason for inserting the content board's role in there is to create an additional layer between those who are directly appointed by government and the regulatory bodies who are charged with regulating the press, and that was indeed the reason for putting the content board into that role.
Q. I understand. In the next section you measure or calibrate your proposal against the Inquiry's draft criteria and that's all fully understood, but can you explain your long-term vision, which is section 3, paragraphs 40 to 45, and how this is going to pan out in future, please, in your own words?
A. Yes. It does seem to me that we are in danger of having different kinds of services that develop in different kinds of ways, that attract different kinds of regulatory oversight, and that we could have real fragmentation of an approach here, and that citizens will not be necessarily well served in understanding exactly where they should go for regulatory redress. If it's a printed publication, then I go to the PCC or whatever replaces it, but if it's one of their television-like services, I go to ATVOD, unless it is actually it has changed and it is genuinely a local television service that they're running in which case I'm going to go to Ofcom. This doesn't seem to me in future to be necessarily desirable, nor do I think it's desirable to have a single regulator who is going to regulate absolutely everything. What I do think will be helpful is for there to be a single framework within which all of the content that we as a public believe needs to be regulated, that that framework can encompass everything and can authorise the necessary regulatory bodies who will be able to carry that out in a way that is responsive to the way that industry is developing, the way that audiences are consuming content, but that is still rooted in what the public believes should be delivered in terms of safeguarding our standards.
Q. Thank you. Are there any other points you would like to bring out orally from your statement or do you feel, Mr Suter, we've covered the ground?
A. No, I think we've covered the ground. I'm very happy.
LORD JUSTICE LEVESON
Mr Suter, thank you very, very much. You're very welcome to stay and see what Ofcom think of your idea.
A. Thank you.
LORD JUSTICE LEVESON
Seriously, I'm very grateful, because unless those who have knowledge and experience of this world help with ideas and suggestions and challenges, an ultimate solution will be much more difficult to come by.
A. Thank you.
MR JAY
We move on now to Colette Bowe and Ed Richards, please. DR COLETTE BOWE (recalled) MR ED RICHARDS (recalled) Questions by MR JAY
LORD JUSTICE LEVESON
Thank you both. You've both previously affirmed or taken the oath and I'm very content to just proceed. I hope you've had the opportunity of seeing Mr Suter's paper before just listening to him in the last three-quarters of an hour. It would be rather unfortunate, if you've only just heard it, if we then ask you to comment on it.
DR BOWE
We have indeed seen it, thank you.
MR JAY
First of all, we have a submission which you've put to us dated 2 April of this year, which is primary evidence for this module. It's under tab 45.
LORD JUSTICE LEVESON
Thank you very much, yes.
MR JAY
Insofar as it contains statements of fact, are you content to attest to the truth of this statement?
DR BOWE
Yes.
MR RICHARDS
Yes.
MR JAY
There's also a letter addressed to the secretary of the Inquiry dated 6 June in which you comment on the Inquiry's draft criteria, and we can take that into account as well. That's under tab 30. The separate section on plurality is not being dealt with today.
DR BOWE
Could we just mention one housekeeping point, which is we don't have any bundles, so when you mention tabs, you will find us looking through our own papers to find what you're talking about.
MR JAY
Yes. The only people who have tabs are me and Lord Justice Leveson. Everybody else is just working from the statement.
LORD JUSTICE LEVESON
The material that we've had on this module covers five lever arch files, and to give everybody everything would have been unnecessarily burdensome. We've trespassed on people's goodwill sufficiently, but where there are ideas that we're keen you comment on then I hope you've been provided with the papers.
MR JAY
First of all, may I ask one of you I am going to be in your hands as to who develops each point, but obviously we would like to hear from each of you approximately the same amount of time to develop orally the overview, which is the second page of the main submission, our page 00848.
MR RICHARDS
So the second page, I think marked page 3, as in the possible public purposes? Is that where you are?
MR JAY
No, the previous page. We're very soon going to come to the possible public purposes, but the overview, which is the previous page.
LORD JUSTICE LEVESON
The only important point to make out of that is that you are not seeking to regulate the press?
MR RICHARDS
I think that's the principal point that we don't seek to take on additional regulatory burdens. We've had additional regulatory responsibilities placed upon us in the last couple of years in other areas, none of which we've sought, so we do what Parliament asks us to do, ultimately. I guess the only other point to draw out from that is the importance which everybody has already emphasised but which we would certainly agree with, which is that a crucial starting point is protecting the rights of free expression and then we move from that into what the appropriate regulatory environment is.
MR JAY
Thank you. Your evidence divides into six chapters or sections. The first one, which is page 3 on your internal numbering, our page 00849, is the possible public purposes of press regulation. Can I ask you please to summarise that and then we'll pick up some points?
MR RICHARDS
Yes. I think the key point we're starting with here is that in any regulatory environment for any purpose of regulation it's crucial to start with clarity about purposes and objectives, and if you don't have that, then I think inevitably you will struggle. Ours are set out very clearly in statute. That means that we have a very clear sense of what we are there to do, and that is what we will typically fall back on. I think the context for that, which we pick up towards the bottom of the page, is the broader environment in which regulating the media is the broader relevant environment, which is that the media in this country are very, very powerful, exercise enormous influence, and that therefore it's right that there is a notion of both an ethical and a legal backdrop to that, and I think that is what is a part of the regulatory environment that we operate and which we suggest is potentially relevant in this to this Inquiry as well.
Q. Thank you. If we can collect together the points which appear in paragraph 1.11, these are the over-arching requirements or key elements, however you wish to describe them. The first and everybody has spoken to this the "requirement to protect the rights of the press in relation to freedom of expression". Would you expect to see that as a statutory requirement?
MR RICHARDS
I think statutory or freedom of expression, the right to freedom of expression is clearly derived from the ECHR, so in that sense it is statutory and that's how we think of it and our entire approach to it derived from that framework, so we think of it that as the backdrop. But I think we think of it more I wouldn't want to give you the impression that we are sitting there thinking about law and statute in that context primarily. That's the backdrop and it's important, but we think about it I would say more importantly as a very important principle.
Q. Thank you. And then the second principle or requirement: "to protect the right of individuals by giving prompt and effective rights of redress in relation to privacy, fairness and defamation". It's self-evident that the first and second requirements might be in conflict with each other so there's a degree of balance. Can I ask you about the fairness requirement, though? Why are we including fairness? We understand privacy and defamation.
MR RICHARDS
What we're mainly concerned with there is that broadcasters can in programmes can okay, those programmes can involve individuals and the preparation or portrayal of individuals, and I think what we're concerned about there is that individuals portrayed or affected by programmes are treated fairly, and given the power of the media, particularly in our context the broadcast media, that does seem to be a very important principle.
Q. Under the Broadcasting Act I think you can make a complaint to Ofcom on fairness grounds as a separate
MR RICHARDS
Yes, that's right. It's precisely for those reasons. If somebody feels they have been misrepresented, portrayed in an unfair way, it's very difficult for a private individual, particularly ordinary people, to stand up to that or correct the position or feel that they have been given fair treatment and that is precisely why that is there. So when we deal with fairness issues, we are dealing with people who have been affected by a programme, who have been portrayed in a programme or who are involved in a particular programme. It's about their particular circumstances rather than a broader set of concerns about the impact of that programme on society more generally, for example.
LORD JUSTICE LEVESON
Does that also mean fair as a matter of process as well? So that if a broadcaster wants to invite somebody onto the programme, they should have some time at least to understand what that programme is about?
MR RICHARDS
Yes.
DR BOWE
Yes.
MR RICHARDS
When we look at a fairness case, we would look at how the broadcaster treated the individual in advance of the broadcast, and were they given were they involved in it with their consent, with informed consent? Were they given, if appropriate, an opportunity to respond to allegations in the programme? Things of that kind would be part of what we'd look at in a fairness complaint.
LORD JUSTICE LEVESON
So that might include issues which have certainly come up in connection with the Inquiry about prior notification, so that if you wanted to expose on the television somebody for what were believed to be illegal activity, if you tell him too much in advance, he simply won't come along to the studio and therefore there's a balance in each case
MR RICHARDS
Exactly, exactly. Normally we would expect allegations to be put to the party to give them an opportunity to respond, but there are circumstances that one can conceive of, and which I think have taken place although I can't recall a good example right now, where that is more difficult because of the nature of the allegation and the response, but that is generally the approach we would expect to see, that's right.
LORD JUSTICE LEVESON
So that's exactly the same as a prior notification type issue of the sort that we've heard in the press?
DR BOWE
Yes.
MR RICHARDS
It is.
MR JAY
The fairness obligation on broadcasters would not arise unless statute imposed it. Am I correct in saying it arises solely by virtue of the Broadcasting Act 1996?
MR RICHARDS
Yes. It's in the 2003 Act and I think the origin of that is the 1996 Act. That's right. It is then given form in our Broadcasting Code.
Q. I understand the position in relation to the broadcasters, but are you advocating or perhaps suggesting that a similar obligation should apply to the press as well, an obligation to act fairly, which may have two components. It may have a process or procedural component, which Lord Justice Leveson referred to, but it might also have an impact on the need to attain a degree of balance, which at the moment the press are not obliged to achieve?
MR RICHARDS
Well, I think there's a difference between fairness as conceived in the way that I've described it and balance. We generally think about balance in the context of impartiality and accuracy, which is obviously specific to broadcasting. I think fairness can involve different things, for example the kind of procedural fairness that you are alluding to, and I think if you think if I think about our reasons for having that and why we have those, it is because, as I mentioned a few minutes ago, the importance and the power of the media, in particular in relation to any single individual and allegations or the treatment of any individual in a particular case, I think it's reasonable to say that all powerful media have that are in that relationship and therefore I think fairness is an important dimension to how we think about powerful media.
Q. Do you wish to add to that.?
DR BOWE
No, I just wish to underline that and take you back to the text. We've said key elements of the public purpose of press regulation could include, and this is where this comes up, so yes, we've thought carefully about this and we wish to give you this advice.
Q. Thank you. Section 2, the principles of effective regulation. Some of this is not altogether dissimilar from Mr Suter's evidence and there may be reasons for that, given where he comes from, as it were, but can we see where we are? Under section (a), which is between paragraphs 2.2 and 2.3, these are the principles which relate to the governance and accountability of the regulatory body, and then (b) is operational independence, so what you are looking for here is a sort of subset of second order principles. Looking on the first order of principles we looked at on the previous page: independence governance and decision-making, clear public accountability, clear regulatory objectives and clear and transparent processes. All of this is relatively uncontroversial and plainly right, if I may say so, but is there anything which you would wish to draw out, either collectively or individually?
DR BOWE
I'm interested that you say this is all relatively uncontroversial, because it does seem to me that what is said at paragraph 2.3, first bullet point, is something on which there has been a very great deal of discussion. It may well be that what you mean by saying this is relatively uncontroversial is that the words on the page look as if they are words that most people could agree with, but the putting into practice of these principles is where the controversy arises.
Q. Mm.?
DR BOWE
We wanted to raise this because we do feel that a clear acknowledgement of the importance of the independence of the governance is of the utmost importance. We spoke about this last time we gave evidence to the Inquiry, and I don't want to reiterate what we said there to explain how the Ofcom system of independent governance works, but I think I would just like to emphasise that I think ensuring that something the governance arrangements put in place are seen to be independent and are demonstrably independent is something to which we would respectfully suggest the future principles should attach the most weight.
LORD JUSTICE LEVESON
Your point is extremely well made, and of course it is the words on the page that are not controversial. Putting them into effect is an entirely different matter.
DR BOWE
Yes.
MR JAY
If I can correct myself slightly, what may be slightly more controversial may be degree of independence from the industry which is being regulated, because you refer and I'm looking at the words on the page as you're asking me to "inappropriate influence over decision-making by third parties", but one of the issues that is concerning the Inquiry is degree of independence from the industry and that may or may not be a matter which arises in relation to the Lord Black proposals. Do you have a viewpoint on that?
DR BOWE
I think you've discussed with Lord Black at considerable length the detailed arrangements that might be made in terms of numbers of people and their provenance, as it were, in order to try to deliver independence. I think what one always has to have regard to is that the arrangements you put in place for governance, as I've said, are able to demonstrate visible independence, and this has to have to do not just with a counting of numbers, how many lay, how many industry, et cetera, but also the ability of all of those people when they meet around a table to be able to come together to fulfil the common purposes of the regulatory body.
LORD JUSTICE LEVESON
The relevant word in the sentence there is the word "inappropriate".
DR BOWE
Yes, exactly, and I'm trying to sort of unpack what I mean by that word.
LORD JUSTICE LEVESON
I understand.
MR JAY
Thank you. The second category, (b) on the next page, page 6, 00852, "Principles which relate to the operational independence and capability of the regulatory body", and there are five principles here. I'm not going to say they're self-explanatory or uncontroversial this time. "Workable membership incentives/obligations", you explain that. "Independent funding and budget control, accessibility, genuine powers of investigation and effective powers of enforcement and sanction". Maybe I should ask you to develop the first and second of those points, because I'm sure we understand the third, and fifth?
MR RICHARDS
May I do them the other way round? I think the second is the easier one. The second is very straightforward. If you have established to public satisfaction, as it were, all of the things that Colette was talking about a few moments ago, in other words your governance and independence framework, that in reality is not going to go very far if actually someone is controlling the purse strings on a regular basis and in effect can infer or imply that resourcing or money may be withheld or changed in one form or another should decisions be made which are not the ones that may be preferred, and I think this is extremely important. I think a very important dimension of independence and effectiveness is financial security. You can't have an in perpetuity arrangement, and I think we suggest a multi-year period, I think we might mention somewhere three or four years, such that there is a moment when a proper exercise takes place which asks what is the necessary funding for the body? And that's about efficiency and value for money. But after that, there should not be interference with that budget, to ensure that the operational daily decision-making is not subject to any risk, any risk of threat or intimidation or anything of that kind. It's slightly strong words, but I think you understand what I mean. So that is a very important building block in independence and effectiveness. In terms of membership, incentives and obligations, I think as we go on to observe in the paper, this is more difficult, and this is again an issue which many people have discussed: how do you make sure that everybody relevant is inside the regulatory regime? It's obviously crucial that that is the case. It's not going to work very well if significant parties are not inside the regulatory regime and therefore we have to think about making sure that there are workable is the word we use incentives or obligations to ensure that the relevant people are included. We go on to discuss that, but perhaps I'll pause at that point to emphasise that I think that is obviously a crucial, crucial factor.
Q. Thank you. The third section, please, page 7, 00853. You speak to models of self-regulation, co-regulation and statutory regulation. For those of us who still recall this, you gave slides which explain the three categories early in October of last year. That's some time ago now. Some of us may have forgotten that or never heard it first time around, but there is a very helpful tripartite distinction between the pure self-regulatory model on the one hand, co-regulation in the middle and statutory regulation on the other, and it's the degree of coincidence between the commercial interests of those being regulated and the public interest which may determine to which of those three categories one falls without prejudice to forming any judgment where the press might fall in this system. Can I ask you, please, to develop, though, 3.3, which looks back at 3.2, which I should refer to: "The starting point for consideration of a future model of press regulation would be balancing the central importance of protecting the independence of the press against creating an effective model of regulation which would have the trust of the public. But you say two questions suggest themselves. May I ask you, why are we still looking at retaining a self-regulatory framework rather than co-regulatory or statutory regulatory framework?
MR RICHARDS
The way we thought about this is to say that in a sense, as everybody knows, there is a tension between the absolutely the freedom of the press on one hand and any constraints on that which people have argued is a restriction of freedom of expression, and at the other end an effective regulatory environment, effective regulatory settlement. And what we thought would be a helpful way to think about it would be to say: all right, let's start at this end, let's recognise the importance of an independent and free press, and then say to ourselves: how far can one travel towards what we, I think, recognise as the criteria for effective regulation before you leave the world of self-regulation? In a sense, that struck us as the test to start with. What we try and do in the note is to say, well, actually you can travel if the industry is willing, you can travel quite a long way on that continuum before you end into you are in the territory of statute. And that seemed to us to be quite a constructive way of testing or investigating a question.
Q. It might be argued, though, if I can put this forward quite tentatively, that if you look at your definition of the self-regulatory model and you identify there a strong alignment between the incentives of participants and the wider public interest, some would say that isn't really present here in relation to the press, particularly where we are now, that immediately therefore makes us look further down the page, whether it be to the co-regulatory or the statutory regulatory model. Is there any merit in that approach or not? Or is it too cynical or too
MR RICHARDS
No, no. The observation is at the heart of the dilemma here, the heart of the challenge. In our discussion of co-regulation and self-regulation, we observe again two end points to help frame that discussion, and I think one we refer to is advertising, where you have, I think, broad alignment between the industry and the public interest. The industry it's very, very important to the advertising industry that there is trust in advertising because otherwise their product is in essence undermined, and therefore they have a strong interest in there being an effective regulatory environment to ensure that trust pertains. The other example we gave was a situation of economic regulation where you have a company that wants to make as much profit as possible, that is where they have a monopoly position, that is clearly not aligned with the public interest and therefore you typically will see statutory regulation. I think in this area, one of the challenges that emerges from our treatment of the issue is clearly the extent to which where one places the press in that between those two points, and when we develop the argument and discuss the some of the more difficult issues such as membership incentives and obligations I think that's precisely the issue you're dealing with.
LORD JUSTICE LEVESON
There's an extra layer on it, isn't there, Mr Richards, in this form, that one can talk about it theoretically and consider at a high level the ultimate interests of the press and the competition among them and the need to inform and all the high level issues, but then there are practical implications that some organs of the press aren't very comfortable with other organs of the press and therefore they're not very pleased to be in the same tent with them, yet we need to cope with both sets of problems in a way that prohibits, discourages, dissuades, whatever word you want to use, one from saying, "Well, I'm very sorry, this doesn't work for me", and is then able simply to walk away at the loss for the public of an over-arching broadcast regulatory regime.
DR BOWE
Yes.
MR RICHARDS
Absolutely, and that characterisation is not one I think we witnessed in advertising, where pretty much everybody, to my knowledge, feels there is an interest in being part of that environment. And that is I think why co-regulation and indeed self-regulation in advertising has broadly worked quite successfully for many years.
DR BOWE
And that is why, if I may just come back to I think the question you were asking in a way was why are you even bothering to start at the self-regulatory end of the spectrum in the analysis we've offered? I think it is worth looking at what we say here about actually how could the self-regulatory regime work? What does it take? And as Ed has said, we can see it working in the advertising industry. So I do think it's quite important that one just doesn't and I'm not suggesting you're doing this, but that one doesn't just rather cynically jump over the possibilities of self-regulation.
LORD JUSTICE LEVESON
No, I'm very pleased that you do this, because the constant challenge for the Inquiry is to test
DR BOWE
Exactly.
LORD JUSTICE LEVESON
is really to tense the self-regulatory ideas which have come out to see, well, can they really work?
DR BOWE
Yes.
LORD JUSTICE LEVESON
It may be that they can work on 12 July 2012, because of everything that's gone on and everything that is now going on.
DR BOWE
Yes.
LORD JUSTICE LEVESON
Professor Greenslade earlier today said yes, the Inquiry has changed what people may be reporting today, I'm pleased he thought for the better, but other people may think for the worse, but this is not a long-term responsibility.
DR BOWE
No.
LORD JUSTICE LEVESON
At least, for me.
DR BOWE
You hope.
MR JAY
Certainly theoretically, and perhaps more than theoretically, in paragraph 4.3 you say that there really is no reason why significant progress couldn't be made in relation to the various core regulatory elements or functions you'd earlier identified. You did heavily caveat it by saying in 4.1 that you would need "genuinely willing participants in such an enterprise" which I suppose it would be for the Inquiry to judge, having heard all the evidence, whether we're in that position or not, but then you say on the next page that one can analyse it is in more detail: "All of this can be said to rely on the successful establishment of three further core building blocks of effective regulation." And then you look at each of them.
DR BOWE
Yes.
Q. The first one is membership, because if we don't have everybody signed up, then we have an obvious flaw as well as lack of public confidence but can I ask you, please, in your own way to develop the point on membership and in particular why you feel that a licensing system is inappropriate in this domain?
MR RICHARDS
Again I think we're back to some of the principles that we started with and the way we've tried to test these questions, so we have tried to ask ourselves what is necessary beginning with that free and independent press and we'll move away from that so we therefore don't start with a licensing regime because self-evidently a full licensing regime is a significant change to or significant challenge to that context of freedom of expression. Its origins in broadcasting are very, very different, we set those out, and those origins which are technological, really, have been underpinned over many, many years by public understanding, public perception. So I think we start at a different point in broadcasting and observe that freedom of expression therefore operates in broadcasting in a slightly different way. The most manifest example of that is that we have impartiality rules for broadcasters and that clearly places broadcasters in a different context vis-a-vis freedom of expression. Our starting point therefore was to say that is the broadcasting environment. Freedom of expression works in a different way and in a more unqualified way for the press, and let's see how far we can go before one needed to create a licensing regime, given that a licensing regime has those kinds of risks and effects. Now, what we then did was try to develop the potential incentives that might make membership work, and we set some of those out. I wouldn't pretend that we've done an exhaustive study of that. We certainly didn't have time or the resources to do that. But we set out what we felt were interesting ideas. And as you'll note at the end, we couldn't conclude in all honesty by saying we thought with any real confidence that these would necessarily guarantee or ensure that everybody who you wanted inside the tent would indeed be inside the tent, so we qualify our advice or view at the end quite carefully.
Q. Certainly. The incentives you mention there, they don't differ greatly from those others have put forward.?
DR BOWE
No.
Q. And they speak for themselves. Journalistic accreditation, though, how does that differ from licensing?
MR RICHARDS
I think that's one of the issues with it, and we note at the tail end of that bullet point that an accreditation system could potentially have a restrictive effect on rights of freedom of expression. It is a paradox, that point, that it seems like quite a potentially attractive device to incentivise membership; on the other hand, you are automatically thereby saying: somehow, if you don't have the accreditation, your freedom of expression is circumscribed.
LORD JUSTICE LEVESON
There is no doubt that's been articulated in very great detail in relation to Mr Dacre's idea on press cards and the response from Northern Shell, which we saw the day before yesterday, which spoke about it being anti-competitive and contrary to the law; is that right?
MR RICHARDS
Yes, there is certainly an interesting competition dimension to it as well as the freedom of expression dimension to it, I agree.
DR BOWE
There's also a small clarificatory point to make which is the Ofcom licensing regime doesn't licence individuals, doesn't bear on individuals. We licence companies. As I understand it, the debate around journalistic accreditation, press cards, et cetera, is about individuals and their freedom or not to participate in the industry. It bites in a different way.
MR JAY
This does lead you to conclude in the bold print between 4.15 and 4.16 on our page 00857, page 11, you think this is quite a challenge and difficult at the end of the day to establish a voluntary self-regulatory incentive, so you're looking for incentives which might be created by a statute, but how does that differ from a co-regulatory or statutory regulatory regime?
MR RICHARDS
Well, by degree, I think is the answer to that, in I think once there is a what we were trying to do here was again to start from the with the objective of having as little going as keeping as close to the principle of an independent free press as possible and travelling as short a distance as possible consistent with the kind of effective regulation which I think everybody recognises is necessary. But once one is in the recognition in statute territory, you are obviously technically in that co-regulatory type environment to a degree, although you wouldn't necessarily be co-regulatory in the sense that you wouldn't necessarily have to have another body awarding the status to a it could be stand-alone, with a minimalist statutory underpinning, which I think we note.
MR JAY
I think we are sliding, if that's the right word, maybe it isn't, to what is beginning to look like your preferred position, which is a minimal degree of statutory underpinning. What label you apply to that system within your labels at the beginning self-regulation, co-regulation and statutory regulation may not matter too much but have I correctly understood where you're coming from because we can see it beginning to be articulated at 4.16 and following?
DR BOWE
Could I just inject a small note here, which is we don't have a preferred position, and what we think we are doing is advising the Inquiry about what we think works.
LORD JUSTICE LEVESON
Dr Bowe, you're
DR BOWE
I'm sorry to make a slight meal of that.
LORD JUSTICE LEVESON
No, as soon as Mr Jay said the word "preferred", the point had occurred to me.
DR BOWE
Okay.
LORD JUSTICE LEVESON
What you have done it's very important this is understood particularly in the light of the suggestions that we just had is respond to the invitation that I issued to you to help me from your experience across the range of the work you do at Ofcom of the types of traps that there are for each of the possible solutions.
MR RICHARDS
That's right.
DR BOWE
Yes.
LORD JUSTICE LEVESON
And you have not tried to do anything else. Now, we will ask you to cope with what other people have suggested, because you may have pluses and minuses for them, but this paper and I'm just emphasising it so there is no doubt about it at all is not a position paper as to where you are.
DR BOWE
Yes.
LORD JUSTICE LEVESON
This is an over-arching view of the issues that we have to address with the benefit of your experience of where the problems are likely to arise.
DR BOWE
Exactly.
LORD JUSTICE LEVESON
Is that fair?
DR BOWE
That's exactly right.
MR JAY
In terms of the incentives, you outline these at paragraph 4.16. Indeed, these are not unfamiliar to us: statutory powers to operate a complaints handling process, amending laws and procedures to give the court power to penalise parties who don't go through the complaints handling system, again, statutory changes to the defamation laws, we've seen that in Ireland in their 2009 Act, and a similar approach to privacy. May we look at the second issue of independent governance, where you really undertake the same sort of analysis, if I correctly understand you, so you say let's start with the position of self-regulation, let's see how far we can move with that.
DR BOWE
Yes.
Q. And then see where, if any, the problems are, and at 4.22, you identify that there are significant steps a self-regulatory model could take, and again in terms of what you articulate, if I can put it in those terms, they are self-explanatory, and commend themselves for that reason. For example, not having serving newspaper editors, management or proprietors on the board are able to influence the board and then transparent appointment processes, et cetera. Can I ask you to deal with one point where the Inquiry has received conflicting evidence: serving newspaper editors on the board, whether it's the board of the regulator or on the relevant Code Committee. Many people have said there are advantages in having that because you're drawing on a repository of experience. Although maybe the principle of independence is being undermined, you're gaining elsewhere. In terms of the advice that you can give the Inquiry, do you have a position on that which you could express?
MR RICHARDS
Yes, I think we would draw a very very strong and clear distinction between advice which I think it is very important to take from those with experience and ideally recent experience of the relevant industry in which we do our sales, and the precedents on decision-making or determinative functions of the regulator of participants and active people actively involved in the industry at present. I think that is quite the wrong thing to do and makes effective and reliable independent decision-making extremely difficult, and to be honest in our context is unimaginable. The idea that we would have and we could stand up in public and defend decisions we made if we had serving broadcasters on our decision-making bodies or on our code-setting bodies, I think is
LORD JUSTICE LEVESON
Even on the code-setting body?
MR RICHARDS
Yes.
DR BOWE
Yes.
MR RICHARDS
Yes, absolutely. And I will say in terms of code setting, in terms of sanctions, in terms of corrections or anything of that kind and in terms of policy making overall, you need to have a bright line separation between those who are regulating and making decisions and those who are regulated, and I think any breach of that in my view, in our experience, means that you will immediately undermine the perception and indeed in all reality the actuality of your independence.
LORD JUSTICE LEVESON
So what you could do is this: you could have an advisory board?
MR RICHARDS
Yes.
DR BOWE
Yes.
LORD JUSTICE LEVESON
And bring serving editors or whatever onto an advisory board to deal with issues that have arisen and whether there needs to be a change in the code, but then their advice, all being transparent and open, should go to a decision-maker which does not comprise or comprehend a serving member of the industry.
MR RICHARDS
Yes. Let me just enlarge upon the advisory point. When we revise our code, which we do from time to time, one of the most important things that we do is put it out for consultation with the industry, so we actively seek that feedback and that input that you're describing from working members of the industry, but it's done in an open, transparent way as part of a consultation. But the decision-making stays within Ofcom. Sorry Colette, did you want
DR BOWE
No, I just wanted to add one little further note on that. The main place where this happens in Ofcom is the content board, about which Tim Suter spoke to you at length earlier this morning. The content board is both chaired by and comprises people with very substantial experience of the broadcasting industry but who are not currently working actively in it, and I think that's another important point to take here as well. Ed is absolutely right about the strong, clear line between existing practitioners and those who actually make the decisions. To my mind, it's equally important that the people who are making the decisions are people who have had very substantial relevant experience and that they are bringing a lot from that to bear on this.
LORD JUSTICE LEVESON
That's going to create a problem because if I go back not just one witness but two witnesses, Professor Greenslade said: don't think that the fact that an editor is no longer an editor means that he doesn't have an agenda.
DR BOWE
I think probably everybody in this room has got an agenda, actually, if I could treat that point a little bit lightly, perhaps. But if by that he means that, let us say, the person who currently chairs the Ofcom content board, who was formerly the director of programmes at Channel 4, before that edited Panorama and edited Newsnight, if by that Professor Greenslade would mean that person was in some way bringing a bias from those previous jobs to his exercise of his regulatory functions, I think I would want to take very strong issue with that.
LORD JUSTICE LEVESON
Yes.
DR BOWE
I think it's a rather light remark to make.
LORD JUSTICE LEVESON
I'm not so sure. It might be slightly more serious than that because the gentleman you've just described has grown up with the requirement for impartiality.
DR BOWE
Indeed.
LORD JUSTICE LEVESON
And therefore can bring that in-built impartiality to every single decision he makes now.
DR BOWE
Yes.
LORD JUSTICE LEVESON
Whereas, if you haven't grown up with that fundamental part of your DNA, indeed your DNA is different, for reasons which we all understand, then the point may not be entirely light. There is something a bit more there, isn't there?
DR BOWE
There is, and if we could just spend one more minute on this
LORD JUSTICE LEVESON
Please.
DR BOWE
you'll recall I said a few minutes ago, when we were talking about governance, the important thing that the people who come in to sit on the board of the regulator, wherever they have come from, come and exercise that role with commitment to the public purposes of the regulator. So in challenging, I suppose, the proposition that everybody is going to bring an agenda into this future press regulator which they are somehow incapable of leaving at the door, I would say that is an important a very important point for the future chairman of this regulator to have regard to, that I completely see your point. One doesn't want to be naive about this, but people who take on serious roles in public life have to know that they do so in the full knowledge that they are not going to be acting in a sectional way in so doing.
LORD JUSTICE LEVESON
Let me take it one stage further, because I wasn't suggesting, and I don't think Professor Greenslade was suggesting I didn't ask him that a retired editor would say, "Right, here is my opportunity to get at my previous competing titles". I don't think that was the point. What I took from what he was saying was something rather different, which was I come into the role with a fundamental view about freedom of speech, which balances the other interests to which we have spoken, privacy, fairness, the others, in a different way to the way that another editor from another type of journal or paper might approach the problem. So it's not that he's deliberately being partial, it's that his perception of the public interest is actually different.
DR BOWE
I completely see sorry, Ed, I know you want to say something here, but I just want to this seems to me to go absolutely to the role of how the chairman of this body will perform, because on any board people bring into that board a range of different experience, perspectives, agendas, if you will, and I think part of this part of the richness of the debate of this future regulatory board will be because people are bringing their different views about where one strikes these difficult balances between different freedoms, and the effective working of this board will be tested by, amongst many other things, the skill of the chairman in welding together these different perceptions, these different balances people are going to make to get a good result. You would not want a board where everybody who came into it had pretty much the same view about how this is going to work.
LORD JUSTICE LEVESON
That's fair enough. So what that would mean is that you would need to encourage that particular board, however it's constituted, not merely to have an ex-editor or ex-somebody from a business, but a number of people from different parts
DR BOWE
Exactly.
LORD JUSTICE LEVESON
of the business who will bring their different DNA into the discussion?
DR BOWE
Yes, yes, yes, yes, that's exactly how I would see it. I'm sorry, Ed, I
MR RICHARDS
Just one small elaboration. I think the point about DNA is definitely important. I can't speak for editors and the press on this, but it is definitely true to say that the former broadcasters who Colette has been referring to, one of the reasons that we feel very comfortable with those individuals and I think it's worked well is because they come into Ofcom and their DNA and their attitude to it is that they respect the regulatory regime that's been in place for many years, that they actually feel as a matter of principle that their purpose is to uphold its principles and its objectives, and therefore what we find is that there is really no risk whatever of them being somehow proxies for the broadcaster or those who are being regulated. What they actually tend to do is come and says, "I spent 30 years working to these standards and I'm determined to uphold them in the future". So I think your point about DNA and attitude and experience from the past is very important, because what you wouldn't want is somebody with industry experience coming in and then seeking to fight a battle of the past in the new regulatory regulator.
LORD JUSTICE LEVESON
Why we need a regulator at all.
MR RICHARDS
Indeed. We don't have that problem. We have people who respect the regulatory environment and want to uphold it, and if you have industry practitioners who did not hold that view, I think that would be a challenge, would be a serious issue.
MR JAY
I've been asked to clarify this with you, that is this right, for the same reason that you would exclude serving editors from your regulatory board, would you also exclude serving journalists?
MR RICHARDS
Yes. Absolutely. Serving journalists, broadcast journalists, yes. Again, we would quite happily talk to and consult with serving journalists in revising our code, but I can't see any way they could possibly be part of our decision-making process, no.
Q. The conclusion you reach on this area, the bold type between paragraphs 4.23 and 4.24 in terms of the advice you give: "Because governance arrangements go to the heart of the legitimacy and authority of the new body, recognition in statute could be needed to establish the most important features." And then you go on to outline how that would work and we understand that, but you make one very important point which I think should be emphasised in the light of some evidence we've heard, 4.26: "Recognition in statute for governance would also change the view of those appointed to the most senior posts about the source of their authority. It would be clear that their authority was embedded in law and not derived from industry and its representatives."?
DR BOWE
Yes.
MR RICHARDS
I think that goes right back to one of the remarks that we began with when you asked me about our overall purposes and we are very, very clear that our purposes derive from Parliament and who we are here to serve, so when I come in every day, I know that I am there to serve the citizens and consumers of the United Kingdom, not the industry, and that is actually a very fundamental point.
Q. But your point on accountability is one I think that can be shortly made because it is clearly understood, that you are proposing, at least as a possibility, a periodic review in statute, and that, I think
MR RICHARDS
I think we say a periodic review, whether one ends up in statute or not, is very important. So even if one could devise or the final proposals did not involve statute because people were satisfied that a self-regulatory version was good enough, you would still have to have a periodic review and that is because I think that's the only way you can test and make sure that the body is performing effectively. If you don't do that, I don't think you should expect it necessarily to perform effectively over a sustained period. So it's important under all scenarios, in our view.
Q. Before we break for lunch, the summary between 4.31 and 4.33 we're not going to cover because your evidence is very clear, but 4.34, please. You do feel that there's a risk that a statute once in place could be amended in a deleterious way?
DR BOWE
Yes.
Q. That's something which I think the Inquiry would like to hear you develop. Do you have practical experience of that as a theoretical concern? Why do you feel this is an issue?
MR RICHARDS
In some ways it's a statement of the obvious. Once legislation is in place, it can be amended. In some ways it's theoretical in the sense that we have never felt that we have never felt in broadcasting that that has been a particular problem, but I think the point we made earlier is that it's slightly dangerous to draw too close a too strong a conclusion from our experience in broadcasting and the reason for that is that impartiality rules govern what broadcasters how broadcasters portray the world and report the world, whereas newspapers are partial and as we all know they are highly partial on a whole variety of things and therefore I think the point we make earlier is that the temptation for politicians to interfere could be greater because of that partiality.
LORD JUSTICE LEVESON
I understand the point that's made here, and it may be I'm being naive, but in the same way that legislation could be amended, so a new statute can always be introduced?
MR RICHARDS
Yes.
DR BOWE
Indeed.
LORD JUSTICE LEVESON
It can be just as difficult to do the former as the latter, and it's one of the reasons why I've spoken about enshrining the independence of the press, the freedom of expression, into the sort of language that's been used for the judiciary. The point was made, well, yes, but that doesn't mean ministers do respect the opinions of the judiciary, but that's what free speech is all about. Ultimately then somebody has to say hang on a minute, you have a duty to be independent. We have a duty to be independent and you have to uphold our independence.
MR RICHARDS
Yes.
LORD JUSTICE LEVESON
I'm just not sure why the risks of amending a statute are any greater than the risks of there being a new statute if somebody is so minded to do it?
DR BOWE
I don't think we think that they are. To be honest we're just making this point here because we know it's a point which concerns a large number of people and we're adding it to our advice in the interests of completeness.
LORD JUSTICE LEVESON
I've understood that. Right, is that convenient?
MR JAY
Yes.
LORD JUSTICE LEVESON
Could you make sure that I am not trying to give them homework, but that you check that Dr Bowe and Mr Richards know about the other ideas that you want to ask them about.
MR JAY
Yes.
LORD JUSTICE LEVESON
Maybe they do already. Good. Thank you very much, 2 o'clock. (1.01 pm)
