1 DAVID JAMES FLETCHER LORD HUNT OF WIRRAL (sworn) 2 Questions by MR JAY 3 MR JAY: Lord Hunt, please sit down and make yourself 4 comfortable. Your full name, please, for the Inquiry? 5 A. David James Fletcher Lord Hunt of Wirral. 6 Q. Thank you very much. You have kindly provided the 7 Inquiry with a witness statement which is signed and 8 dated by you on 12 January this year, and there's also 9 a statement of truth. So this is your formal evidence 10 to the Inquiry; is that right? 11 A. Yes, it is. 12 Q. Thank you very much. 13 LORD JUSTICE LEVESON: Lord Hunt, I think it's right -- 14 I think there's a difference between us of seven years, 15 and I must confess that I have absolutely no 16 recollection at all, but I am reliably informed that we 17 attended the same school, if that matters to anybody, 18 the school being in Liverpool. 19 A. I'm very proud that we both went to Liverpool College 20 and I have a clear recollection of that experience 21 but -- 22 LORD JUSTICE LEVESON: Oh, I recollect the experience. 23 MR JAY: Lord Hunt, you have been the chairman of the PCC 24 since 17 October of last year, so that gives you only 25 three months' experience, as it were, in the saddle. In 57 1 a nutshell, your previous career, please? 2 A. I can personally think of no better container than 3 a nutshell. Shall we keep it at that, or would you like 4 me to go -- 5 Q. We're not going to cover every detail, but you were 6 a member of Parliament. You served in the cabinet under 7 Baroness Thatcher, I think as Secretary of State for 8 Wales, is that right, and then under Lord Major -- 9 sorry -- 10 LORD JUSTICE LEVESON: Sir John. 11 MR JAY: Sir John Major. I think you were, again, Secretary 12 of State for Wales and also Chancellor of the Duchy of 13 Lancaster. You left Parliament in 1977. You became 14 a life peer, is that correct, back in 1997? 15 A. 1997. So I've been in Parliament for 35 years. 16 Q. Thank you very much. Since then you have been 17 a practising solicitor, partner, at a well-known firm, 18 which practises in commercial and regulatory law -- that 19 is your specialism -- and you became chairman of the PCC 20 in the autumn. 21 May I ask you about the appointment process. You 22 answered an advertisement, which you refer to in 23 paragraph 3 of your witness statement; is that right? 24 A. Yes. 25 Q. You provided me with a copy of the advertisement and it 58 1 states that the candidate must be committed to the 2 principles of press freedom and to self-regulation, and 3 presumably it follows that you are committed to those 4 principles? 5 A. Yes. May I just point out that I joined my present law 6 firm in 1965 and I've been a partner since 1969. So it 7 pre-dates my career in Parliament and it has continued 8 right up to date. 9 Q. Thank you. 10 A. But I applied for the job because I have a passionate 11 belief in freedom of the press. I think it's one of the 12 most valuable assets we have in the UK and it's much 13 envied across the world. 14 I also have seen for myself how state regulation can 15 go very badly wrong, and it's always preferable if it 16 can be the self-regulation which is the basic structure. 17 Q. Thank you. I'll obviously cover that in a moment with 18 you, Lord Hunt. May I understand what you mean by 19 "self-regulation", regardless of what the advertisement 20 might mean by it? 21 A. Self-regulation of the press, which I'd prefer to call 22 independent self-regulation of the press, means of the 23 press, for the press, in the public interest. 24 Q. But not by the press, presumably? 25 A. Well, it must, of course, be a voluntary system into 59 1 which the press subscribe. I also chair a body called 2 the Lending Standards Board, which is a self-regulatory 3 body, successor to the Banking Code Standards Board, 4 which was again a self-regulatory structure which was 5 subscribed to by all the major firms involved in that 6 particular industry. So when I refer to 7 self-regulation, I really want to see the participation 8 of the whole industry in its own regulation. 9 Q. Thank you. To go back to the process of application and 10 interview, it is clear from Mr Abell's evidence 11 yesterday that you must have been interviewed by the 12 current chair of PressBoF, who is Lord Black; is that 13 correct? 14 A. Yes. My recollection, on 30 September, was that my 15 previous interviews had been with a firm who had been 16 instructed to come forward with a shortlist, and it was 17 my contact within that firm, a Mr Vardi, who made we 18 aware that I was to be interviewed on 30 September. 19 When I arrived, the chairman of the interview panel was 20 Lord Black, but there were a range of people on the 21 other side of the table, including an independent 22 assessor. 23 Q. The range of people -- there were some lay members, as 24 it were, and other members of PressBoF; is that correct? 25 A. I was told that the interview panel was a subcommittee 60 1 of PressBoF. But it had, of course, the independent 2 assessor and also the head-hunting firm was represented 3 on the other side of the table. 4 Q. In an interview which you gave with or to 5 Professor Greenslade, you apparently said, in terms of 6 why you put your name forward, that it was Lord Wakeham 7 who got you into a corner and, as it were, persuaded you 8 to throw your hat in the ring. Is that fair or not? 9 A. It's a complicated history, and I'm not sure how much 10 you want me to go into it, but I was, at the time, 11 considering putting my name forward for a range of 12 posts. I then became aware of this advertisement, and 13 Lord Wakeham, with whom I served -- I was one of his 14 colleagues for many years -- told me that he felt that 15 there was a need for the regulation of the press to be 16 taken further forward with some ideas, and he was aware 17 that I had just, for the Law Society of England and 18 Wales, presented them with a report on the recommended 19 future of regulation of solicitors and I'd also carried 20 out the first independent review of the Financial 21 Ombudsman Service. So against that background, John 22 Wakeham said to me that he thought I should put my name 23 forward. 24 Q. Thank you. One other point which comes out of 25 Professor Greenslade's interview is that you told him 61 1 that in your view the PCC was not a regulator. Does 2 that accurately set out your position and/or would you 3 wish to elaborate on that? 4 A. Yes. Speaking as a lawyer, I looked at the articles of 5 association and at the powers of the Press Complaints 6 Commission, against also the background of having been 7 in the cabinet that received the reports of Sir David 8 Calcutt in 1990 and then again in 1993, which described 9 what was needed as a regulator. 10 But I think in the second report, in 1993, Sir David 11 concluded that the press had not come forward with what 12 could be described as a regulator and he set out what he 13 felt a statutory regulator should be. So against that 14 background, I could see that the PCC was not, in 15 Sir David's terms, a regulator, and it had -- didn't 16 have the powers of a regulator. I thought I was stating 17 the obvious. 18 Q. Yes. 19 A. But suddenly I became aware that virtually everyone 20 agreed with me. 21 LORD JUSTICE LEVESON: Well, Sir Christopher doesn't. 22 A. Yes, Sir Christopher and I go back a long way and I can 23 hardly recall a time when he has agreed with me, but 24 I don't want to go too far. 25 LORD JUSTICE LEVESON: No, I think you've said quite 62 1 sufficient, thank you. 2 MR JAY: Is it inherent in what you're saying, Lord Hunt, 3 that a regulator would have wider powers, both of 4 investigation and of sanction? 5 A. Yes. Once -- what I feel is that the PCC has some 6 appurtenances of a regulator, such as a pre-publication 7 service of developing a book of caselaw, but it doesn't 8 have the full range of powers that any regulator must 9 have and therefore I conclude it is not a regulator. 10 The proposed new body, to which we'll come in 11 a moment, would be a regulator and I regard that as 12 a huge difference. 13 Q. Thank you. Your aversion to statutory regulation of the 14 press is made clear in paragraph 3 of your witness 15 statement, if not elsewhere. The reason you give: 16 "I believe that would be an unacceptable impingement 17 on our freedoms." 18 Why is there a nexus between statutory controls, 19 as you describe them here, and an impingement on our 20 freedoms? 21 A. Perhaps it would suffice to quote someone whose statue 22 is outside my law office, John Wilkes, who, 250 years 23 ago, in 1762, said, "The liberty of the press is the 24 birthright of a Briton, and is justly esteemed the 25 finest bulwark of the liberties of this country." 63 1 That's something I so passionately believe in. 2 Q. I think all of us would believe in that, but it's the 3 antipathy or aversion to statutory controls and the 4 impact that those controls might have on these cherished 5 freedoms. Why does the existence of statutory controls 6 threaten these freedoms? 7 A. I think I would talk about statutory regulation, not 8 statutory controls. I rely on "The Essential Law for 9 Journalists" to point out all the statutory provisions 10 that apply and restrict freedom of the press. I'm not 11 just talking about defamation or the Data Protection Act 12 or the Freedom of Information Act. The list is endless. 13 It's a massive textbook. So there is also statute 14 there. 15 What is missing, thank goodness, is a statutory 16 regulator, and that is what I would regard as an 17 infringement of the freedom of the press. 18 Q. I think, again, we might all agree that if there were 19 a statutory regulator which itself was responsible for 20 the imposition of standards and, by virtue of that, 21 would be capable of curbing the exercise of the press' 22 democratic right to express itself, then we would have 23 a regrettable state of affairs. But if the statutory 24 regulator did not have power to set standards, would the 25 very fact that there was a statutory regulator be 64 1 offensive, in your view? 2 A. Yes. 3 Q. Because? 4 A. Because of my 35 years in Parliament. Perhaps the best 5 way to describe my background is to say that I've seen 6 too many examples of where a simple objective was to be 7 reached through a new bill, and perhaps I would 8 summarise it by saying the road to parliamentary hell is 9 paved with good intentions. 10 LORD JUSTICE LEVESON: Does that include -- and I've raised 11 this with a couple of witnesses -- the independence of 12 the judiciary, now enshrined in section 3(1) of the 13 Constitutional Reform Act? 14 A. I have in front of me the Constitutional Reform Act, and 15 I do recall when it was going through Parliament and the 16 debates that we had, where judicial opinion was greatly 17 valued, particularly in the upper house, and there was 18 general agreement that we had to enshrine the 19 independence of the judiciary in legislation. But there 20 is no such agreement -- and I'm well aware of the views 21 of my parliamentary colleagues -- there is no such 22 agreement about the independence of the press. There 23 are very strong views in Parliament that there must be 24 stronger limits on the power of the press and this 25 would, therefore, in my mind, open a Pandora's box. It 65 1 would be, for many of my colleagues in Parliament, 2 a wonderful moment if they were given the opportunity to 3 move amendments, to debate a bill regulating the press, 4 and I just do not know what would emerge the other side. 5 We were determined that what would emerge the other 6 side with the 2005 Act was the independence of the 7 judiciary. There is no such agreement about the 8 independence of the press. 9 LORD JUSTICE LEVESON: So you think that Parliament might 10 seek to use any form of legislation, however it was 11 cast, as a way of controlling the press? 12 A. Yes, and they have told me so, many of them, in both 13 houses, and that is what is driving me forward to find 14 a solution and to respond positively to your own 15 comments, right at the outset of this, particularly in 16 the seminars, that there is a wonderful opportunity for 17 the press itself to put its own house in order. 18 LORD JUSTICE LEVESON: I don't think that's quite how 19 I expressed it, but I certainly said, and firmly 20 believe, that it's critical that the press engage in the 21 debate about how its regulation, with a very small "R", 22 should move forward, because it's critical that whatever 23 system emerges works for them, but it's equally 24 critical, as I have made clear, that it works for -- 25 I've said "me", but by "me", I of course mean the 66 1 public. 2 A. Yes. 3 LORD JUSTICE LEVESON: And in the light of all that has 4 emerged, I think I've said this: tinkering around the 5 edges is, I think, unlikely to be sufficient. 6 A. (Nods head) 7 LORD JUSTICE LEVESON: I gather from your nod that you do 8 not disagree with me? 9 A. Oh, I strongly agree. I think this is a tremendous 10 opportunity for the press themselves to come forward 11 with the sort of system which Sir David Calcutt was 12 asking for. As you may know, I worked very closely with 13 Sir David Calcutt on a range of cases. I'm a great 14 admirer of his excellent, and in his second report, he 15 set out very clearly the way ahead, and I have done my 16 best to persuade those with whom I've consulted that 17 that is the right way forward, but not by statute. 18 LORD JUSTICE LEVESON: I'll deal with it at the end. 19 MR JAY: We'll come back to your proposals for the future in 20 due course, Lord Hunt, but may I just deal with a number 21 of points you raise in your statement? 22 You identify in your view the strengths of the 23 current system. They can be collected under a number of 24 heads. The first is you've been impressed by the way in 25 which the Commission has been able to conciliate 67 1 complaints. That's paragraph 10 of your statement. 2 Presumably in your three months in the saddle, you have 3 had direct observational experience of that; is that 4 correct? 5 A. I -- yes. I greatly admire the dedication and 6 commitment of the staff at the PCC. I've listened to 7 them dealing with calls from the public. I have been 8 made aware of the way in which they respond in 9 a compassionate and caring way to members of the public 10 who have what they feel is a genuine grievance and they 11 work hard to ensure that a satisfactory solution is 12 found. 13 Q. Do you feel that they take a particular side or, I think 14 in the words of Mr Abell yesterday, it's sort of 60/40 15 in favour of the customer as against the press. Would 16 that be your perception how they balance the two? 17 A. I would say that my perception was that they pursue an 18 independent course, seeking to balance, on the one hand, 19 the freedom of the press to comment and on the other 20 side the public interest, and I think the recent change 21 to the code, which only came into effect on 1 January, 22 the 1st of this month, is an example of how the 23 experience of the staff has been instrumental in 24 constantly putting the code under careful review and 25 improving it as and when necessary. 68 1 Q. Paragraph 12 of your statement, Lord Hunt, deals with 2 the code. You say you start from the belief it's 3 important the rules are written by the professionals 4 themselves, pausing there, presumably because the 5 professionals themselves have the knowledge and 6 experience to know what the standards should be. Then 7 you say: 8 "... so long as they're responsive to public 9 concerns." 10 Can I just explore with you what the mechanisms are 11 to ensure that the code of practice, as a living 12 instrument, is properly responsive to public concerns, 13 please? 14 A. I'm not sure we have the best way of doing that at the 15 present time, so no doubt we'll come onto the way ahead, 16 but I would just, again, instance the amendment to the 17 public interest test which came in on 1 January, which 18 added to the code that -- the words "and how and with 19 whom that was established at the time". 20 This is to negotiate a way through of understanding 21 the public interest and how the public interest was 22 affected, and I think there needs to be much clearer 23 definition of processes, which I would advocate through 24 authorised internal regulation within the newspaper or 25 magazine. 69 1 LORD JUSTICE LEVESON: That picks up a point that has been 2 mentioned several times by me, certainly, during the 3 Inquiry, about an evidence base for the decision-making 4 that was involved in making public interest assessments. 5 Is that right? 6 A. I agree. 7 MR JAY: Maybe we can take this out of sequence, if you 8 don't mind, Lord Hunt. Ensuring that the code, as an 9 organic series of principles and rules, is kept 10 responsive to public concerns, how would you recommend 11 that that is achieved? 12 A. I think it is part and parcel of the way in which I've 13 been looking ahead. I'm trying not to look back too 14 much, because I think there's too much history here, 15 although I felt Stephen Abell gave us a lot of lessons 16 that can be learned from the past, as he outlined the 17 way forward. But certainly there is a need for 18 a separate standards arm alongside the complaints and 19 mediation arm, and there should be scope for perhaps 20 a third arm. No doubt we'll return to that point. 21 But this new structure, I think, is sorely needed, 22 and I've come to the conclusion that we do urgently need 23 a fresh start and a totally new body with substantially 24 increased powers to audit and enforce compliance with 25 the code, to require access to documents, to summon 70 1 witnesses, when necessary, and also to impose fines, all 2 backed by commercial contracts. 3 Q. We'll come to that very shortly. 4 The other plus points you wish to draw our attention 5 to in your witness statement: paragraph 13, the issue of 6 harassment, and paragraph 14, the issue of 7 pre-publication advice. 8 You mention problems with the paparazzi in 9 paragraph 13. If it were made clear that the newspaper 10 publishing a photograph would be responsible for the 11 photo in all its attributes, really, including the mode 12 of obtaining of the photograph, then how the paparazzo 13 himself or herself had obtained it would be subsumed to 14 the newspaper, wouldn't it? 15 A. Yes. So that's the way you control the product, but if 16 I might add, I think there's also a place for 17 considering whether we shouldn't have voluntary 18 self-regulation by the photographic agencies as well, 19 because we have to bear in mind a number of the 20 photographers are not necessarily anything other than 21 freelance. Quite often, I understand, they're from 22 other countries and publication occurs in other 23 countries but the power of our press ensures that they 24 don't appear in the UK, unless certain clearly defined 25 objectives are met. 71 1 LORD JUSTICE LEVESON: Making the editor responsible for 2 everything that's in his paper or her paper, whether 3 it's a photograph that had been taken in breach of 4 privacy rights or information that's been obtained 5 through a private investigator acting in breach of the 6 Data Protection Act, will make the editor or his team 7 careful about what information they use and how they 8 obtain it, presumably. 9 A. Yes. Yes. This is really self-regulation at its very 10 best. 11 MR JAY: The weaknesses of the current system. Some of them 12 you've already touched on, Lord Hunt. The absence of 13 formal legal powers as manifested in the phone-hacking 14 investigation, the inability to check basic facts, 15 et cetera. 16 Secondly, the voluntary nature of the system, which 17 means that anybody could pull out, as indeed 18 Northern & Shell have done. 19 And the third point, paragraph 19, the way 20 compliance and internal mechanisms work within 21 newspapers and magazines. Can I ask you, please, to 22 elaborate the points you make under paragraph 19, 23 please? 24 A. Yes, well, here I would argue a natural and obvious 25 feature of any effective system of self-regulation is to 72 1 ensure that the internal compliance and complaints 2 mechanisms within a paper operate and operate properly. 3 Q. Yes. 4 A. The complaints and mediation arm should always be the 5 last resort when the individual has not had proper 6 satisfaction direct. 7 Q. Is it implicit in paragraph 19 that you feel that, at 8 least in certain newspaper organisations, what we have 9 chosen to call corporate governance has been less than 10 satisfactory? 11 A. I think, looking -- I'm anxious not to be an apologist 12 for the past, but looking back, I'm constantly reminded 13 of the judgment in the Barings case, that the admiral on 14 the bridge should know, surely, what is happening in the 15 engine room, and there has been a feeling that perhaps 16 at the most senior level in a number of publications, 17 proprietorship, that insufficient knowledge and 18 responsibility has been taken, but there's been 19 insufficient knowledge of what was going on throughout 20 the organisation. 21 LORD JUSTICE LEVESON: It's a rather stronger case than 22 Barings, because in Barings it was the work of 23 a scientist called Dr Wong in Singapore who wasn't 24 identified in London. 25 A. Yes, yes, I agree. 73 1 MR JAY: Thank you. We look now to the future. This is 2 paragraph 21 and following, Lord Hunt, of your 3 statement. Can we just understand, please, what has 4 been happening, as it were, behind the scenes. You 5 refer to a meeting which took place on 15 December of 6 last year, and this included editors, publishers and 7 senior industry figures. Presumably a meeting which you 8 chaired; is that right? Or did PressBoF chair it? 9 A. Well, it was a meeting at which I presented what I must 10 confess are my proposals. When I was interviewed for 11 the job, I remember I was closely questioned on the 12 approach I would take, and I did say that I felt I could 13 only really advise properly on what should be the right 14 way forward if I had a blank piece of paper to start off 15 with, and I found that that met with some degree of 16 support and respect. 17 Since I originally was interviewed, I have been 18 consulting as widely as I possibly could, and I was 19 encouraged, particularly bearing in mind the words used 20 in this Inquiry, about coming forward with proposals, at 21 least to share with the editors the way in which I saw 22 the future, and a meeting was called where -- I think it 23 was around about 50 editors, including all the most 24 senior editors, including several proprietors, including 25 the four -- or was it even five, with OK magazine, 74 1 editors from Northern & Shell -- they all attended. 2 I presented my proposals in detail, which I'm very keen 3 to share with the Inquiry, and I was very pleasantly 4 surprised to find that everyone agreed. 5 So there is consensus on the right way forward. 6 Important now -- the target now is to start the process, 7 whether in shadow form -- trying to make sure that we 8 create the right sort of body on which can be built 9 a much more effective process of independent 10 self-regulation. 11 LORD JUSTICE LEVESON: As opposed to saying the target is 12 now me? 13 A. I have to be very careful, and of course I say yes, but 14 it just so happens I'm giving evidence on Thursday to 15 the joint Select Committee, and in a way I'm seeking to 16 try and get the widest possible consensus on the right 17 way forward. But I think, sir, the one area on which 18 I'm sure we will be fascinated as to your conclusions is 19 on the carrot side of this whole process. 20 I'm well aware, from my discussions with a lot of my 21 parliamentary colleagues, that when the defamation bill, 22 if it is contained in the Queen's speech, comes forward, 23 there is a real opportunity then perhaps to build a much 24 better, quicker, safer, freer system, fairer system of 25 adjudicating on complaints and dealing with defamation 75 1 and privacy issues in a different environment to that 2 which, at the moment, applies. 3 LORD JUSTICE LEVESON: I'm sorry, I don't quite understand 4 that. Does that mean that there is an appetite to 5 include within the bill that's had pre-legislative 6 scrutiny some other provisions? 7 A. Yes. But they're not that different. If one looks 8 carefully through Lord Mawhinney's report on the draft 9 defamation bill, there is a belief that building on the 10 Reynolds defence might be a very interesting way 11 forward. 12 LORD JUSTICE LEVESON: Well -- 13 A. And Lord Lester of Herne Hill has already shared with 14 many colleagues his wish to see something modelled on 15 the Irish Press Council reference in the Irish 16 legislation being included in the defamation bill, but 17 that will be much later this year, after, sir, you have 18 reported. 19 LORD JUSTICE LEVESON: Well, that's the point. I'd be very 20 keen to learn about that and the ideas that Lord Lester 21 and indeed anybody else has, as indeed I've made clear 22 I'm very keen to hear from you. Well ... 23 MR JAY: Lord Hunt, in terms of the proposals which you 24 outline in your witness statement, you make it clear 25 that these are very broad interim conclusions which 76 1 need, perhaps, to be stress-tested and subject to 2 further discussion. Can we identify the key features? 3 You say quite clearly that the existing PCC 4 structure is not viable and needs to be replaced, that 5 there can be no question of tinkering at the edges. In 6 terms of what the body would look like, putting to one 7 side the source of its powers, you, I think, have at 8 least two arms; is that correct? 9 A. Yes. 10 Q. Could you explain that to us, please, Lord Hunt? 11 A. Well, I think we've heard evidence identifying certain 12 weaknesses with the present -- the current system of 13 self-regulation. 14 The proposal is that the new regulator should have 15 two arms, one that deals with complaints and mediation, 16 continuing the valuable work that's been going on 17 hitherto at the -- by the staff of the PCC, and one -- 18 a separate arm that audits and, where necessary, 19 enforces standards and compliance, compliance with the 20 Editors' Code, with much greater emphasis on internal 21 self-regulation, with a named individual carrying 22 personal responsibility for compliance at each and every 23 one of the publishers and those responsible for 24 newspapers and magazines. 25 The individual will be responsible for providing 77 1 a simple but thoroughgoing audit of compliance on an 2 annual basis, and as you've just mentioned, that will be 3 underpinned by a system of commercial contract. 4 Q. Is it right, therefore, that the Code of Practice 5 Committee would disappear and become part of the 6 compliance and standards arm of the PCC? Have 7 I correctly understood that? 8 A. I think the design that I have worked up, as you rightly 9 say, is a matter for further discussion. I do make 10 clear: these are my proposals, but I have done my best 11 to consult widely within the industry, with other 12 stakeholders, including many colleagues in Parliament, 13 and they have now been endorsed both by the Press 14 Complaints Commission and by the industry itself at that 15 meeting we had on 15 December, and I think it's very 16 encouraging that there is such a wide consensus for 17 radical reform. The very existence of this Inquiry has, 18 I think, been the key important factor in ensuring that 19 all the major players in the industry now accept that 20 radical reform is an urgent necessity. 21 Q. Yes. I'm just concerned about the code of practice. On 22 my understanding of your evidence, it's likely to be 23 located within the compliance and standards arm, but in 24 terms of how the code would reflect public concern, 25 public perception, et cetera, is it being proposed that 78 1 there be lay representation on the committee or the 2 compliance arm which would have responsibility for the 3 code of practice? 4 A. Yes, and that there should also be a review -- an 5 independent review of the code. This is all part and 6 parcel of the overall proposals, which I have summarised 7 in a two-page document which I have circulated to each 8 of the editors who attended that meeting, and on which 9 I'm now getting a number of very helpful and positive 10 responses. 11 Q. In terms of identifying the source of power -- this is 12 your third bullet point at page 54998 -- you make it 13 clear that there does need to be a formal legal 14 underpinning of the system. Is that because, Lord Hunt, 15 if you have a body which can impose fines, which can 16 require editors to provide documents and have other 17 coercive powers, there needs to be some legal framework, 18 otherwise there is no means of achieving compliance? Is 19 that correct? 20 A. Yes. It's not a new idea. One leading Queen's Counsel 21 pointed out to me that Lord Shawcross had raised the 22 whole question of there being contractual underpinning 23 of the self-regulatory system in his Royal Commission 24 report. 25 Q. Yes. So -- 79 1 A. So I'm not seeking to be innovative. I'm building on 2 what I think is the right way forward, as expressed 3 previously. 4 Q. But you would be content, on my understanding of this 5 third bullet point, with a contractual system, the 6 contract being the source of power, as it were, which 7 was recognised within statute -- or in due course was 8 recognised within statute -- but you would not, on my 9 understanding, countenance a contractual system which 10 had been created by statute; is that correct? 11 A. Correct. I think the easiest way to deal with this 12 point is to look at recommendation 1 of David Calcutt's 13 second report, which I've relied on here, when he, 14 I think -- and I do recall all the debates we had -- 15 I think had rather lost patience with the response that 16 he'd received to his first report, which had been 17 a committee on privacy chaired by him, and in 18 paragraph 9 of that summary, at the start of his second 19 report, he concluded that: 20 "The government should now introduce a statutory 21 regime. A statutory press complaints tribunal would 22 need to have these functions and powers." 23 And I have he been going through those functions and 24 powers with one huge difference: I think these functions 25 and powers could be set up under contract without the 80 1 need for legislation. 2 Q. There are 19 functions and powers, which range from 3 drawing up a code of practice, enquiring into 4 complaints, holding hearings, giving guidance, awarding 5 compensation, imposing fines, et cetera, et cetera. 6 That's correct, isn't it? 7 A. Yes. 8 Q. His preference, as you say, was for a statutory regime. 9 In terms of the vice which you're seeking to avoid, 10 which is an unacceptable impingement of on freedoms, 11 paragraph 3 of your witness statement, what is the 12 difference between Sir David Calcutt's statutory regime, 13 with the powers we see itemised here in paragraph 9 of 14 the second report, and the contractual regime which you 15 favour? 16 A. The difference is statute. What I'm doing is to set out 17 what Sir David concluded in his first report, and where 18 he had been dissatisfied with the response that he had 19 received, which had then led him to believe the only way 20 forward was through statute. 21 I'm seeking to lift what he would have wanted into 22 today's age, and I think it is perfectly achievable. 23 The environment of the time, though, was that it was not 24 possible for the press to come forward with such 25 a self-regulatory regime. And please, Mr Jay, bear in 81 1 mind that I was part of those discussions which took 2 place, under colleagues in cabinet, to try and persuade 3 the new Commission, the Press Complaints Commission, to 4 move in the direction that is laid out here, and I think 5 there were a whole series of letters, no doubt which 6 will be revealed when at last we are allowed to see all 7 the internal letters and correspondence of the 8 administration, which -- I'm reminded that there were 9 challenges given to the press to do exactly what is now 10 set out in my statement, but they did not respond 11 positively. 12 I sense today there's a completely different 13 appetite for fundamental reform, and I'm anxious that we 14 should utilise this window of opportunity as quickly as 15 possible, to proceed in the way Sir David wanted and 16 I think the overwhelming majority of people now want, 17 which is proper, independent self-regulation of the 18 press. 19 Q. Of course, under your contractual system, you would 20 have, I think we would all agree, a regulator, properly 21 so-called. Would it be self-regulation, though, 22 Lord Hunt? 23 A. Yes. 24 Q. Can I just understand what the possible difficulties 25 might be. I'm only putting these forward as possible 82 1 difficulties. Getting people to sign up on the dotted 2 line, Lord Hunt. We've called this the carrot or the 3 stick. It matters not -- 4 A. Or both. 5 LORD JUSTICE LEVESON: That's neither a carrot nor a stick; 6 it's just getting them to sign up. 7 A. Yes, I agree. The contracts would arm the new regulator 8 with the necessary is investigative and enforcement 9 powers to investigate serious ethical breaches, which 10 the PCC has never possessed. And if I may add this -- 11 MR JAY: Yes. 12 A. I think the PCC has been very unfairly criticised for 13 failing to exercise powers which it never had in the 14 first place. 15 LORD JUSTICE LEVESON: Well, it did have certain powers, 16 didn't it? We looked at them yesterday, in the articles 17 of association. They could have done a lot more. 18 A. Yes, I -- 19 LORD JUSTICE LEVESON: I'm not taking this as an opportunity 20 to have a go at the PCC, but looking at some of the 21 powers in the articles of association, they could easily 22 have been construed to permit a great deal more. They 23 may not have been able to afford to do it. That's 24 a different point. 25 A. Sir, I'm not sure it is a question of resources. There 83 1 was a reliance on correspondence, without the feeling 2 that there was power to demand the attendance of 3 witnesses, power to visit the premises under 4 investigation, to carry out proper, in-depth analysis of 5 the documentation, the emails, the computer records. It 6 would require a team and undoubtedly the new regulator 7 would have that power. I'm determined that it should. 8 I hope it would never have to be exercised, but it would 9 have that power. 10 All I'm saying is that this is in stark contrast to 11 the PCC, which certainly never felt it had that power, 12 and it would require an imaginative interpretation of 13 the articles to feel that it did. 14 LORD JUSTICE LEVESON: Well -- 15 A. And it never felt it had that power. 16 MR JAY: Well, Lord Hunt, it's perhaps not necessary to go 17 there and try and construe article 53.1(a) again, but 18 what I'm concerned really is to address the future. 19 There are at least three issues I'd like to discuss. 20 It's getting people to the starting block issue and 21 forcing them into this system, which is the web of 22 contractual relationships. I think you would agree that 23 if there is a substantial newspaper group which is 24 outside the system, that damages the credibility of the 25 new body, whatever name it's given; is that correct? 84 1 A. Correct. 2 Q. So how are we going to get people to join up, Lord Hunt? 3 A. By asking them, and everyone I've asked so far, covering 4 virtually the whole range of publications, have said 5 that they are willing to agree to proceed in the way 6 I have set out. 7 Q. That includes Northern & Shell, presumably, does it? 8 A. Correct. 9 Q. Have you made it clear to Northern & Shell what all the 10 characteristics and attributes of this new body will be? 11 A. I have shared with them as much as I have shared with 12 everyone else. 13 Q. Is this right: that you are relying on the good faith, 14 the goodwill of all the potential participants, to 15 arrive at the signing ceremony on day one and 16 participate; is that correct? 17 A. Correct. 18 Q. Is there any additional incentive which one could put 19 forward or suggest which might make it even more 20 attractive for people to sign up? 21 A. I sense there is a willingness to accept a fresh start 22 and a new body. I did immediately call a meeting of all 23 the general counsel, who advise each of the 24 publications, and found that there was agreement around 25 the table that it was perfectly possible to reach 85 1 agreement. The abiding theme was that it should be 2 simple, short, easy to understand, and that one could 3 foresee exactly the sort of structure that I had in 4 mind. 5 In many ways I've approached this as I would 6 a client who comes with a problem, the problem being the 7 present structure does not work. The solution, which 8 lawyers seek to find, is an answer which will provide 9 the best structure, and I think with the help of all 10 those involved, it will be possible. 11 Q. Okay. On my understanding, the proposal entails 12 a five-year rolling contract. Presumably anybody who 13 wanted out would have to give five years' notice; is 14 that correct? 15 A. Yes. My error is that I'm always approaching it in 16 a positive way, but you're quite right. I have to think 17 of the consequences of anyone who, two years further 18 down the road, might find that they could no longer 19 support the structure, and I've been advised by those 20 I've consulted that the best way forward is to have 21 a rolling contract over a five-year period. 22 The sword of Damocles hanging over the whole 23 industry is, of course, the threat of state regulation. 24 If someone just unilaterally withdrew, for whatever 25 reason, a five-year period would be more than enough 86 1 time to provide the statutory underpinning that would be 2 necessary if you could never achieve consensus, but at 3 the present time, I'm seeking to put as positive 4 a construction on the discussions I've had as possible. 5 LORD JUSTICE LEVESON: That's entirely understandable, 6 Lord Hunt. You'll forgive me if I view the problem 7 through a rather wider spectrum of history, as well as 8 having the anxiety that you identify. As I again have 9 said a number of times, it is rather disturbing the 10 number of times since the last war that we've been in 11 a position are great calamity for the press, there has 12 been an Inquiry, everybody agrees something must happen 13 that is different, that is taken on board -- you don't 14 need me to carry on. 15 A. (Shakes head) 16 LORD JUSTICE LEVESON: Then disaster happens and everybody 17 starts again. 18 A. Sir, I think the difference, if there is sufficient 19 agreement to move forward now, is that there would, at 20 least, be a contract. I think there were some people 21 who felt there was almost an implied contract setting up 22 the Press Complaints Commission, but there wasn't. 23 Perhaps if we'd followed the Shawcross advice, there 24 would have been, but there wasn't. 25 I suppose in many ways -- am I wrong in thinking the 87 1 solution now is to learn the lessons of history and make 2 sure that there is a proper contract in place? 3 LORD JUSTICE LEVESON: Well, make sure there is something in 4 place. What you have added to the equation by your 5 evidence, which I frankly concede has taken me somewhat 6 by surprise, is the appetite that you have identified in 7 your parliamentary colleagues to take the opportunity to 8 impose restrictions upon the press which are 9 inconsistent with freedom of expression. That's what 10 you've given me this afternoon. Have I understood it 11 correctly? 12 A. Sir, there have been a number of occasions on which 13 private members have put forward private members' bills. 14 If one looks at those bills, they would have imposed 15 restrictions on freedom of expression. 16 Now, Lord Soley, who I think has now written a book 17 about it -- and I've consulted Clive Soley -- he has 18 very strong views about the need for some mechanism of 19 that sort, and there are many others, too. I don't 20 think their prime intention is to restrict freedom of 21 expression, but in my view it would be a consequence. 22 LORD JUSTICE LEVESON: Mm. 23 MR JAY: Okay, Lord Hunt. May I deal with the contract? 24 Imagine everybody is in the contract, either because 25 they're willing to sign up or some carrot has been 88 1 devised to ensure that they do. There are three 2 possible issues which arise. 3 If the new body imposes a substantial fine -- let us 4 imagine the proprietor doesn't like the fine and refuses 5 to pay -- presumably your advice is an order for 6 specific performance can be obtained at the instance of 7 the new successor body against the recalcitrant 8 newspaper body; is that correct? 9 A. Well, the fine would be issued by the standards and 10 compliance arm of the new regulator only if there was 11 a serious or systemic breach of standards. The level of 12 fine, would, of course, be proportionate and would 13 depend on a number of factors such as the seriousness of 14 the breach and the size of the organisation. 15 One way of doing that would be for the fine to be 16 added to the paper's levy for the following year's 17 membership. That was an idea put forward in one of the 18 meetings I've held. 19 There is, though, I stress again, an appetite to 20 proceed with this form of self-regulation, which 21 I warmly applaud, and I do think -- and perhaps I should 22 keep stressing this -- I think this Inquiry has opened 23 up a huge opportunity and I'm keen to use the momentum 24 that this Inquiry has provided to press on with reform. 25 MR JAY: Some might say -- but I suppose that person would 89 1 have to be a cynic -- that the appetite you are 2 referring to is simply a fear that this Inquiry might 3 recommend something which the press would regard as much 4 worse, namely a form of statutory regulation. Would 5 that be too cynical a view? 6 A. Having been in Parliament 35 years, I'm not sure 7 I recognise cynicism any more. 8 Q. Okay, Lord Hunt. I am concerned, though, with the 9 mechanics. You've got a fine. There's no means of 10 challenging the fine. It's fair and proportionate. Any 11 appeal right has been exhausted. 12 A. Yes. 13 Q. The proprietor doesn't pay. Is it your advice that 14 specific performance can be obtained by the new 15 successor body against the proprietor or not? 16 A. Yes. I'm told that it would be available, but that is 17 for the judiciary presented with such an application. 18 It would also depend very much on the wording of the 19 contract. 20 Q. Naturally it would, but if the contract were worded in 21 the right way, is it your advice, from Queen's Counsel, 22 that if there is no difficulty, an order for specific 23 performance would be ordered by the High Court? 24 A. Correct. 25 Q. Imagine then this scenario: the proprietor is now 90 1 particularly disgruntled for whatever reason and wants 2 out and refuses to pay the subscription, and what's 3 more, refuses to submit to the jurisdiction of the new 4 successor body, in other words, doesn't accept that it 5 has any power over complaints arising against its 6 newspapers. Can an order for specific performance be 7 obtained, on your advice, in that sort of situation? 8 A. Or on a change of ownership. 9 Q. Yes. 10 A. A similar situation. 11 The advice I've received is that much would depend 12 on the way in which the contract was worded, but 13 provided the right words were used, the answer to your 14 question is yes. 15 Q. I suppose that might collapse into this question: that 16 once the newspapers understand that the wording which 17 they're asked to sign would enable, in the case of 18 breach, the High Court to order specific performance 19 against them, some newspapers might be less keen to sign 20 up. Does that not follow? 21 A. No, I don't think it does, because there is goodwill, at 22 the moment, amongst all those to whom I've spoken, to 23 set up such a system. The important thing is to make 24 sure that the terms on which the new regulator is 25 established are sufficiently wide to meet the range of 91 1 problems, some of which you've outlined, and there are 2 many others, too, which we would have to make sure were 3 covered. 4 Q. Finally, slightly more of a condite(?) point on judicial 5 review, because the previous witness mentioned it. 6 Presumably your advice is that if there were a web of 7 contractual relationships binding newspaper groups to 8 this new regulator, this new regulator would clearly be 9 subject to judicial review, wouldn't it? 10 A. Judicial review has become now so commonplace. I've had 11 so many of my decisions as a minister challenged under 12 judicial review in a way that would never have taken 13 place many years ago. So I think almost certainly yes, 14 but whether or not the decision would be to intervene in 15 the rules of a self-regulatory body, that's still really 16 something which is uncertain. 17 Q. I would agree with that, but I'm dealing more with 18 points of principle. My understanding of the law in 19 quite old Court of Appeal decisions is that 20 a contractual regulator would be amenable to judicial 21 review. I think it's a decision of Lord Donaldson in 22 a case called Datafin. It may well be the case, but I'd 23 like to think about this further, that the PCC is 24 already amenable to judicial review, even without 25 a contract, but it's not necessary to express 92 1 a concluded view on that. 2 It deals with an objection Lord Grade raised to 3 statutory regulation, that there is no difference, for 4 judicial review purposes, between a statutory regulator 5 and a contractual regulator, is there? 6 A. Well, I thought I'd argued successfully on two 7 occasions, on behalf of an association of members 8 creating a body, that it was not capable of judicial 9 review, because it wasn't contained in statute. I think 10 I probably need to reflect on the stare decisis around 11 this issue. Please don't rely on me to give definitive 12 advice. I think I'd probably come to you for that. 13 Q. Yes, and I would ask for a bit of time to ponder the 14 jurisprudence you refer to, and I haven't had the time 15 in the last three or four days to do that, Lord Hunt. 16 Can I come back to statutory regulation? I can see 17 the philosophical objection you put forward, and I can 18 see that you're coming to us with, if I may say so, 19 lengthy experience of Parliament, both in the House of 20 Commons and the House of Lords, and you fear that some 21 of your colleagues may take this opportunity to settle 22 old scores but in any event seek to muzzle or curb the 23 press because that would be their agenda. 24 Subject to that concern, there is no difference in 25 substance, is there, between the contractual system 93 1 which are you advocating and a system which has a 2 statutory underpinning but otherwise has exactly the 3 same powers as the system you're advocating; would you 4 agree? 5 A. I think I'd rather want to reword your question. 6 Q. Fair enough. 7 A. But I'm not allowed to do that. 8 Q. You can, Lord Hunt. I'm going to permit you to do that. 9 A. But what I think is that Parliament, when it is 10 presented with a bill, believes there to be a problem 11 which it is necessary to solve. Now, the government may 12 present it in a limited way, but Parliament has the 13 right to proceed in the way that it thinks fit, and 14 I think on an issue like this, there would be widespread 15 belief that there would be a better way through 16 a different form of regulation. 17 Self-regulation, though, has a huge advantage, in 18 that it is capable of change, adapting to circumstances. 19 Changing the code, improving the code, strengthening the 20 code, strengthening the system in a new way, 21 particularly faced with online publications, the need to 22 extend the sphere. That is perfectly possible without 23 another bill, another Act of Parliament. 24 As soon as you get into statute, you're into an 25 inflexible system. I think self-regulation is so much 94 1 the better because it can adapt to the challenge of 2 change. 3 Q. But even with your contractual system, in order to adapt 4 to the challenge of change, you would have to amend the 5 contract, wouldn't you? 6 A. Not necessarily, because you, I hope, are going to 7 empower a new regulator with two columns: standards and 8 compliance, and complaints and mediation. I would want 9 to see the contract allow for a further arm, if it is 10 right to proceed down that road, but back to the new 11 regulator. The contract would give the new regulator 12 power to adapt to the challenge of change. That is the 13 key. So you wouldn't need a new Act of Parliament; you 14 would need the new body to feel that it had to proceed 15 in that direction within the powers given to it by the 16 contract. 17 Q. Yes, but an Act of Parliament which was not prescriptive 18 in the sense of the standards which were to be imposed, 19 moreover did seek to enshrine certain constitutional 20 principles in relation to the freedom of the press -- 21 that Act of Parliament and the regulatory body which 22 would spring from it would, it might be argued, be 23 exactly as flexible and exactly as independent as the 24 contractual mechanism that you are advocating, isn't 25 that right? 95 1 A. Well, over the years I've seen so much legislation that 2 has been introduced into Parliament, needed amendment in 3 both houses, last-minute amendments, and then, after the 4 legislation has passed and become an Act, received royal 5 assent. Suddenly problems arise which were not covered 6 by the legislation. New situations arise. 7 What I'm seeking through self-regulation is to 8 establish a structure that can easily, easily, by 9 agreement and by consensus, be established and be 10 adapted to the changing environment. I think that's the 11 great advantage. It may work. I believe it will work. 12 But if it didn't work, yes, you can always go back to 13 the -- 14 Q. Sword of Damocles. 15 A. -- the sword of Damocles and establish a statutory 16 framework. But the press already operate within a huge 17 statutory back-up system. 18 Q. Yes, I understand. It's the same sword of Damocles, 19 though, that Sir David Calcutt left hanging over the 20 press in 1993, isn't it? 21 A. Yes, but I think in many ways the structure that I am 22 hoping to establish would meet his wishes and 23 expectations, which at the time -- I do know for a fact 24 he was very, very disappointed that there wasn't such 25 a positive reaction then, but I believe we have that 96 1 positive reaction now. 2 LORD JUSTICE LEVESON: Is this time-limited, Lord Hunt? 3 There is actually a second sword of Damocles here, not 4 merely the possibility of doing something in the future, 5 but: "Unless we get this signed up quite quickly, then 6 this fellow called Leveson is going to come and make it 7 much worse for us"? I don't have that power, actually, 8 because I would only make recommendations in any event, 9 but is there something to that effect about this, too? 10 A. No. I think you have opened the window of opportunity, 11 sir. I'd be keen to use the momentum that your Inquiry 12 has provided to press on with reform. 13 LORD JUSTICE LEVESON: Yes, well, I entirely agree with 14 that, and as I have, I think, already said to you this 15 afternoon, suggested just that possibility as long ago 16 as last September/October. So I am not at all 17 concerned -- in fact, I positively encourage the work 18 that you and those who are supporting you have done to 19 try to find a way through, but I have some concerns, 20 which I would like to be thought about as well. But 21 I'll wait until Mr Jay concludes. 22 MR JAY: Two final questions, Lord Hunt. It goes without 23 saying -- but this would be true of contractual system 24 and a statutory system -- that more money would be 25 needed, wouldn't it, to enable the new regulator or the 97 1 renamed regulator to discharge its functions? That's 2 right, isn't it? 3 A. No. I don't think the proposed new model is going to be 4 much more expensive. I don't think it can possibly be. 5 The newspaper industry is evolving all the time and it's 6 a simple fact of life, as my parliamentary colleague 7 Lord Grade pointed out, that printed newspapers are in 8 decline, especially at the regional and local levels, 9 and I'm determined that a regulator that deals with 10 complaints, but also polices internal self-regulation, 11 will not grow into an intolerably expensive burden on 12 the industry, although there will be some transitional 13 cost during the process of reform, but involving best 14 practice, will and must see a higher proportion of 15 alleged code breaches dealt with quickly, efficiently 16 and internally by the offending publications themselves. 17 There's huge opportunity here for the industry to 18 regulate itself in a way that perhaps it hasn't focused 19 on sufficiently well in the past. 20 Q. I've been asked to put to you this question. It goes, 21 I suppose, to the point which someone put in these 22 terms: "cosy cabal", if you can forgive me for put it in 23 this way. 24 A. Yes. 25 Q. It hasn't escaped anybody's notice that the history of 98 1 the PCC has been rather dominated by Conservative peers. 2 That remains the position. It remains the position in 3 relation to PressBoF. Is that an accident? Does 4 anything flow from that, Lord Black? Lord Hunt, pardon 5 me. 6 A. I'm just absorbing your Freudian slip. 7 May I just say that I hope my experience with the 8 press is not guiding me here, because it would be in the 9 opposite direction to that which you've set out. 10 I don't think there is anyone who's appeared as 11 a witness before you who has had the sort of 12 vilification I have had in the press in the past. 13 I think it was Edward Pierce who wrote that magnificent 14 article which my children so love: "David Hunt is 15 a sponge, but even a sponge can be useful." And I just 16 give you that as one example. I have had more than my 17 fair share of derision from the press, but my goodness, 18 although I disagree with them, I'd fight to the death 19 for their right to express those views. That's always 20 been my view. 21 I mustn't get too deep about this, but in the early 22 part of my career, it was certain newspapers who 23 supported me when I was in my early 20s, when I attacked 24 Enoch Powell on the issue of race and got sacked by my 25 local constituency with my parliamentary career at an 99 1 end, and it was one newspaper in particular who said -- 2 and wrote an editorial, which was quite brave and 3 courageous of them at the time, saying, "This young man 4 will go far. He need not worry." 5 Well, I was very worried, but not after I read that 6 editorial. So I think the press is a mixture, 7 I suppose, but the fact it's a free press is probably 8 our nation's greatest asset. 9 MR JAY: Okay, well, forgive me for asking the question. 10 I'm grateful for your answer, Lord Hunt. Thank you. 11 A. Thank you. 12 LORD JUSTICE LEVESON: Let me just become slightly less 13 over-arching. A contract may bind the press 14 institutions that enter into the contract but says 15 absolutely nothing to the public. So how do you see the 16 concept of your ability, for example, to award 17 compensation as fitting with the right of a member of 18 the public to pursue litigation? 19 A. It would not be possible under the Human Rights Act to 20 debar someone. 21 LORD JUSTICE LEVESON: That's the point. 22 A. But -- 23 LORD JUSTICE LEVESON: Unless you got a system that is 24 Article 6-compliant. 25 A. Yes, and I carry with me everywhere the Human Rights Act 100 1 because it is so critical and crucial here. 2 How the public interest would be dealt with -- the 3 entire system would have to be founded on a generally 4 accepted definition of the public interest. The entire 5 system has to be based on that, embodied in the 6 contracts and in the code. That's the only way forward. 7 It has to be a system judged against everything that's 8 happened in the past. Would it have stopped these 9 situations arising? That's been in the forefront of my 10 mind. What could this new regulator are done to have 11 stopped some of the evil practices which we've heard 12 about and which this Inquiry has highlighted? 13 LORD JUSTICE LEVESON: So it wouldn't stop a member of the 14 public pursuing litigation. What do you say to the line 15 that you have to choose? "Either you come to the PCC 16 mark 1 or you had go to court. You can't do both." 17 A. Two responses. The financial services ombudsman says if 18 you come to the ombudsman, then you are not bound by our 19 decision but the company that you're complaining against 20 is. So you could have a system where the press are 21 bound by the decision, but the member of the public -- 22 LORD JUSTICE LEVESON: You certainly could, but I don't know 23 whether your thinking has progressed that far with your 24 constituency. 25 A. I sense that this is a real opportunity for the third 101 1 column. I would want the complaints and mediation arm 2 to be fast, fair and free, so that people get immediate 3 response where they have failed to get that response 4 from the newspaper or magazine. 5 The third column, I think, is the area which 6 everyone has wrestled with, and I've tried to do the 7 same. I haven't reached any conclusions, and I'm 8 listening very carefully, sir, to the evidence at this 9 Inquiry. I sense there must be a better way of 10 mediating, of dealing with complaints, of awarding 11 compensation, but I can't quite see my way through there 12 yet, and I think if you were able to highlight the right 13 way forward here, I would certainly want the contracts 14 to be able to absorb such a third column, if that were 15 your conclusion. 16 LORD JUSTICE LEVESON: Well, you've heard me ask a number of 17 witnesses about this three-tiered approach: complaints, 18 standards and some form of arbitral system. But the 19 difficulty with your contractual approach will be to rob 20 the system of the opportunity of requiring some form of 21 straightforward arbitration. 22 I particularly raised this with Lionel Barber, the 23 editor of the Financial Times, who was at the time 24 expressing concern about the ability of the extremely 25 wealthy effectively to overwhelm even the Financial 102 1 Times with the risk of litigation that would be 2 inordinately expensive, and the concern about making it 3 entirely contractually based is that the extremely 4 wealthy could not be compelled to go down that route but 5 would be able to pursue whatever remedy it sought, 6 unless there was some form of arbitral system that was 7 Article 6-compliant but that didn't give the opportunity 8 simply to avoid it. 9 A. Sir, I think this is such an important area. I don't 10 have an easy and quick reply but I have spent some time 11 looking through the Defamation Act 2009, the Irish 12 Defamation Act. 13 LORD JUSTICE LEVESON: Yes, I was about to say I didn't 14 think we had one. 15 A. No, we shall have Defamation Act 2012. 16 Section 26 says -- actually lays a statutory test on 17 the extent to which the publisher of the periodical 18 adhered to standards equivalent to the standards laid 19 down in effect by the Irish Press Council. 20 So when such a case reached the courts, in 21 considering it, the judiciary would want to be assured 22 that the individual concerned had utilised the services 23 of the complaints and mediation service. 24 LORD JUSTICE LEVESON: That's fine, but that does actually 25 mean, doesn't it, that this body is going to have to be 103 1 recognised in some way in statutory form. 2 A. But the press is already -- section 12, freedom of 3 expression. 4 LORD JUSTICE LEVESON: Well -- 5 A. It's already -- in this essential law for journalists -- 6 I'm amazed that journalists feel free, because there is 7 so much restriction in the criminal law and the civil 8 law already in place. What we're talking about is just 9 adding on to that, not creating a statutory regulator. 10 LORD JUSTICE LEVESON: I understand that, and I am just 11 trying to test it, because one of the carrots that I've 12 spoken about is the ability, in a Reynolds-type defence, 13 to rely upon membership of and compliance with the rules 14 set out by a regulator, but that would then require 15 a definition of the regulator to be contained within the 16 statutory framework, would it not? 17 A. Yes. 18 LORD JUSTICE LEVESON: The advantage of a contract is that 19 ultimately a particular media organisation may or may 20 not sign up. There is the ability, ultimately, to 21 withdraw, however couched -- 22 A. Yes. 23 LORD JUSTICE LEVESON: -- with restrictions that is. If one 24 created an Irish-type model that recognised a regulator 25 that did certain things, you could provide that it had 104 1 to be set up so that it was independent, that it -- 2 A. Yes. 3 LORD JUSTICE LEVESON: -- provided certain remedies, which 4 I think the Irish model does. 5 A. Yes. 6 LORD JUSTICE LEVESON: Then presumably it would be 7 sufficient for the legislation to identify the model and 8 to leave the regulator to get on with the task of 9 organising codes, practices and the rest of it. 10 Now, on that basis, would it not also be 11 advantageous to allow that regulator to set up an 12 arbitral system, which, if not mandated, could be, 13 rather as you've identified the Irish model does, 14 directive of those who wish to complain? 15 A. Yes. It's -- it is, of course, in the reference that 16 I've made to the Irish Press Council, only within the 17 Defamation Act 2009. There is no other sort of 18 statutory, regulatory structure laid out in any other 19 Irish Act, as I understand it. I'm exploring this 20 further at the present time. 21 But you are quite right, because in schedule 2 it 22 sets out minimum requirements in respect of the Press 23 Council, and it may well be this third column would need 24 to satisfy those minimum requirements. But it doesn't 25 in any way mean we will have to wait, because there is 105 1 already, I would regard, an unprecedented consensus in 2 favour of the proposed new architecture uniting the 3 political parties, my colleagues on the PCC and, most 4 important of all, the industry itself. That's why 5 I think we have a unique historic opportunity. 6 Once we've established this new structure, we can 7 build on it. We can gain the respect of the public 8 through the exercise, for the first time ever, of proper 9 regulatory functions with the power to investigate, 10 et cetera, and I think this could set a precedent for 11 a future course of action on which -- you may well, sir, 12 have some vitally important views on how we could build 13 on this structure, but we need a structure on which to 14 build which does not rely on the Press Regulation Act. 15 LORD JUSTICE LEVESON: Yes, I understand that, clearly, and 16 you have clearly in mind also the need to satisfy the 17 public concern that has been expressed so vocally to me 18 and indeed otherwise. 19 We're not going to solve this this afternoon, but 20 what I am very keen that you should do is to keep the 21 Inquiry informed about the progress that you are making 22 and where the sticking points are, if there are any, and 23 to maintain the momentum that you feel you can maintain 24 on the basis that you should expect that I may very well 25 request that you return to allow into the public domain 106 1 the further developments that you have agreed or that 2 you're able to pursue, in order the better to inform my 3 consideration of the future. 4 A. (Nods head) 5 LORD JUSTICE LEVESON: In other words, to such extent as you 6 can use -- I won't say the sword, that puts it far too 7 high -- the small dagger that I hold, knowing of the 8 concerns that I have and the principles that I have 9 hinted at -- more than hinted at, made clear that I feel 10 strongly about -- then I have no difficulty with that. 11 A. (Nods head) 12 LORD JUSTICE LEVESON: I think that's probably as far as we 13 can go this afternoon. 14 A. Yes, sir. I very much welcome your words. I think -- 15 I think you, in this Inquiry, have highlighted really 16 what has been a great shame in the past: bad journalism. 17 But the overwhelming majority of journalists I know just 18 wish we could eradicate what goes on at that level, and 19 what I'm really talking about -- what I've sensed in all 20 my discussions is that there is a willingness to embrace 21 a profound and positive change in culture running right 22 across the whole industry, and you are giving us an 23 unrivalled opportunity to meet the need that is so 24 pressing. 25 LORD JUSTICE LEVESON: Lord Hunt, I hope that is so. I have 107 1 never shied away from saying that by far the greatest 2 proportion of journalistic activity in this country has 3 been to the very great benefit of the country, and 4 I have said that both in relation to the regional press 5 and also to national titles, but it would be a mistake 6 to think that my concern is limited to phone hacking, or 7 that there aren't other practices which I have heard 8 about which do not cause me real anxiety. 9 A. Mm. 10 LORD JUSTICE LEVESON: If the industry is taking advantage 11 of the time that the Inquiry takes to address these 12 concerns, nobody will be more pleased than I will be to 13 be able to feel progress has been made and that 14 a solution has been reached which can be embraced by the 15 industry rather than fought over for the next five years 16 to come. 17 But it does have to cope with the problems, because 18 those organisations and people who've spoken about those 19 problems have a legitimate interest in ensuring that 20 they haven't gone through the pain of exposing 21 themselves only to find that nothing really has changed. 22 I hope you agree that that's not unfair. 23 A. Well, if I just say, sir, that my objective will be nil 24 satis nisi optimum, which you may recall is the motto of 25 a famous Premier League football club. It's a clarion 108 1 call: to be satisfied by nothing but the best. 2 LORD JUSTICE LEVESON: Well, that's easy to say; not 3 necessarily straightforward to achieve. 4 A. Thank you. 5 MR JAY: Thank you. 6 LORD JUSTICE LEVESON: Lord Hunt, thank you very much 7 indeed. 8 A. Thank you. 9 MR JAY: May I raise a tiny different topic before you rise? 10 LORD JUSTICE LEVESON: Yes. 11 MR JAY: Evidence of Mr Thomas last week. He wishes to make 12 some very minor corrections and clarifications. 13 A letter of 24 January will therefore be put on the 14 website in the usual way, setting out those matters. 15 LORD JUSTICE LEVESON: Yes, I've read the letter. I agree 16 with that approach. 17 Thank you very much indeed. Tomorrow morning, 18 10 o'clock. 19 (5.04 pm) 20 (The hearing adjourned until 10 o'clock the following day) 21 22 23 24 25 109